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Nagar Palika Mirzapur Vs. Mirzapur Electric Supply Company Limited | R. M. Sahai, J. This appeal by special leave arises out of judgment and order dated 24-10-1973 of the Allahabad High Court in First Appeal from Order No. 51/1972.2. The dispute between the parties was referred to arbitration under the orders of the Government of Uttar Pradesh. Whereas the respondent raised three heads of dispute as enumerated in the award, the appellant herein raised two heads. By consent of parties, all the five heads of dispute between the parties were taken cognizance of by the Arbitration together and by his award dated 27.1.1971 decision made. When it was sought to be made rule of court, the appellant objected to that course primarily on the ground that the Arbitration had ignored to decide the heads of dispute and raised by it. The Trial Court dismissed the objection and the High Court in First Appeal affirmed that view which has led to this appeal. 3. We have heard Dr. Ghosh for the appellant in detail. We are not satisfied of the challenge made. It is clear from the award that the two heads of dispute as raised by the appellant were embodied in Letter No. 707 dated 3-10-1968 sent to the Arbitration and those are mentioned below : "1. The applicant Mirzapur Electric Supply Company Limited, Mirzapur, used for its own purposes the electric lines set up by the opposite party (at Nagarpalika, Mirzapur) at its own costs only for the street lights and (the opposite party) claimed that it should be awarded a sum of Rs. 15, 000/- together with interest as against the applicant. 2. The amount realised in excess by the applicant from the opposite party as electricity dues, maintenance charges and wire costs, may be refunded, and at the same time a reasonable amount may further be refunded on account of deficiency in the light as a result of low voltage and a further sum of Rs. 4, 000/- may be refunded due to non-consumption of electricity in the fused bulbs which did not burn". 4. The respondent on the other hand had raised claims to certain sums of money payable from 1.4.1966. Marshalling the entire matter, but without giving any reason, the Arbitration rules that w.e.f. April 1, 1967 the respondent is entitled to receive from the appellant maintenance of street lights and charges at the rates specified in the award. Dr. Ghoshs contention is that the Arbitration had in the back of his mind the claim of the respondent as dated above and has ignored the dates of the claims of the appellants. This argument, does not appeal to us. The respondent had claimed certain sums of money w.e.f. 1.4.1966. The Arbitration plainly has rejected the claim of the respondent for one year and has awarded charges w.e.f. April 1, 1967. From this, it cannot be said that the Arbitration had unconsciously ignored to keep in mind the claims of the appellant which statedly were of the years 1944, 1957 and 1960 to 1966. These dates have been asserted before us on the basis of an affidavit sworn on behalf of the appellant. Otherwise in the heads of dispute referred to the Arbitrator these dates are not forthcoming. This being an award without reasons cannot be found fault with. We are satisfied that the Arbitrator in his award did mention of his being cognizant of the disputes raised before him and has passed the award fully conscious of the disputes. Before the Trial Court nothing worthwhile could be suggested in challenge and even before the High Court the challenge failed benefit as it was of any basis.5. Dr. Ghosh further pointed out that the time for arbitration expired on 31st December, 1970 and the award was made by the Arbitration 27 days date on 27-1-71 without formal extension of time. The argument does not appeal to us. The conduct of the parties is a major factor to waive the extension of time given by the court. The time be taken as extended. | 0[ds]4. The respondent on the other hand had raised claims to certain sums of money payable from 1.4.1966. Marshalling the entire matter, but without giving any reason, the Arbitration rules that w.e.f. April 1, 1967 the respondent is entitled to receive from the appellant maintenance of street lights and charges at the rates specified in the award. Dr. Ghoshs contention is that the Arbitration had in the back of his mind the claim of the respondent as dated above and has ignored the dates of the claims of the appellants. This argument, does not appeal to us. The respondent had claimed certain sums of money w.e.f. 1.4.1966. The Arbitration plainly has rejected the claim of the respondent for one year and has awarded charges w.e.f. April 1, 1967. From this, it cannot be said that the Arbitration had unconsciously ignored to keep in mind the claims of the appellant which statedly were of the years 1944, 1957 and 1960 to 1966. These dates have been asserted before us on the basis of an affidavit sworn on behalf of the appellant. Otherwise in the heads of dispute referred to the Arbitrator these dates are not forthcoming. This being an award without reasons cannot be found fault with. We are satisfied that the Arbitrator in his award did mention of his being cognizant of the disputes raised before him and has passed the award fully conscious of the disputes. Before the Trial Court nothing worthwhile could be suggested in challenge and even before the High Court the challenge failed benefit as it was of any basis.5. Dr. Ghosh further pointed out that the time for arbitration expired on 31st December, 1970 and the award was made by the Arbitration 27 days date onwithout formal extension of time. The argument does not appeal to us. The conduct of the parties is a major factor to waive the extension of time given by the court. The time be taken as extended. | 0 | 732 | 361 | ### Instruction:
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R. M. Sahai, J. This appeal by special leave arises out of judgment and order dated 24-10-1973 of the Allahabad High Court in First Appeal from Order No. 51/1972.2. The dispute between the parties was referred to arbitration under the orders of the Government of Uttar Pradesh. Whereas the respondent raised three heads of dispute as enumerated in the award, the appellant herein raised two heads. By consent of parties, all the five heads of dispute between the parties were taken cognizance of by the Arbitration together and by his award dated 27.1.1971 decision made. When it was sought to be made rule of court, the appellant objected to that course primarily on the ground that the Arbitration had ignored to decide the heads of dispute and raised by it. The Trial Court dismissed the objection and the High Court in First Appeal affirmed that view which has led to this appeal. 3. We have heard Dr. Ghosh for the appellant in detail. We are not satisfied of the challenge made. It is clear from the award that the two heads of dispute as raised by the appellant were embodied in Letter No. 707 dated 3-10-1968 sent to the Arbitration and those are mentioned below : "1. The applicant Mirzapur Electric Supply Company Limited, Mirzapur, used for its own purposes the electric lines set up by the opposite party (at Nagarpalika, Mirzapur) at its own costs only for the street lights and (the opposite party) claimed that it should be awarded a sum of Rs. 15, 000/- together with interest as against the applicant. 2. The amount realised in excess by the applicant from the opposite party as electricity dues, maintenance charges and wire costs, may be refunded, and at the same time a reasonable amount may further be refunded on account of deficiency in the light as a result of low voltage and a further sum of Rs. 4, 000/- may be refunded due to non-consumption of electricity in the fused bulbs which did not burn". 4. The respondent on the other hand had raised claims to certain sums of money payable from 1.4.1966. Marshalling the entire matter, but without giving any reason, the Arbitration rules that w.e.f. April 1, 1967 the respondent is entitled to receive from the appellant maintenance of street lights and charges at the rates specified in the award. Dr. Ghoshs contention is that the Arbitration had in the back of his mind the claim of the respondent as dated above and has ignored the dates of the claims of the appellants. This argument, does not appeal to us. The respondent had claimed certain sums of money w.e.f. 1.4.1966. The Arbitration plainly has rejected the claim of the respondent for one year and has awarded charges w.e.f. April 1, 1967. From this, it cannot be said that the Arbitration had unconsciously ignored to keep in mind the claims of the appellant which statedly were of the years 1944, 1957 and 1960 to 1966. These dates have been asserted before us on the basis of an affidavit sworn on behalf of the appellant. Otherwise in the heads of dispute referred to the Arbitrator these dates are not forthcoming. This being an award without reasons cannot be found fault with. We are satisfied that the Arbitrator in his award did mention of his being cognizant of the disputes raised before him and has passed the award fully conscious of the disputes. Before the Trial Court nothing worthwhile could be suggested in challenge and even before the High Court the challenge failed benefit as it was of any basis.5. Dr. Ghosh further pointed out that the time for arbitration expired on 31st December, 1970 and the award was made by the Arbitration 27 days date on 27-1-71 without formal extension of time. The argument does not appeal to us. The conduct of the parties is a major factor to waive the extension of time given by the court. The time be taken as extended.
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0
### Explanation:
4. The respondent on the other hand had raised claims to certain sums of money payable from 1.4.1966. Marshalling the entire matter, but without giving any reason, the Arbitration rules that w.e.f. April 1, 1967 the respondent is entitled to receive from the appellant maintenance of street lights and charges at the rates specified in the award. Dr. Ghoshs contention is that the Arbitration had in the back of his mind the claim of the respondent as dated above and has ignored the dates of the claims of the appellants. This argument, does not appeal to us. The respondent had claimed certain sums of money w.e.f. 1.4.1966. The Arbitration plainly has rejected the claim of the respondent for one year and has awarded charges w.e.f. April 1, 1967. From this, it cannot be said that the Arbitration had unconsciously ignored to keep in mind the claims of the appellant which statedly were of the years 1944, 1957 and 1960 to 1966. These dates have been asserted before us on the basis of an affidavit sworn on behalf of the appellant. Otherwise in the heads of dispute referred to the Arbitrator these dates are not forthcoming. This being an award without reasons cannot be found fault with. We are satisfied that the Arbitrator in his award did mention of his being cognizant of the disputes raised before him and has passed the award fully conscious of the disputes. Before the Trial Court nothing worthwhile could be suggested in challenge and even before the High Court the challenge failed benefit as it was of any basis.5. Dr. Ghosh further pointed out that the time for arbitration expired on 31st December, 1970 and the award was made by the Arbitration 27 days date onwithout formal extension of time. The argument does not appeal to us. The conduct of the parties is a major factor to waive the extension of time given by the court. The time be taken as extended.
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Nikhil S/O Dilipsing Rajput Vs. The Union of India and Others | been advertised certifying that the candidate belongs to Other Backward Classes recognized as OBC by a Resolution / Gazette Notifcation issued by the Government of India (Central Government/ State Government) 6. It is equally undisputed that the note below clause 4 of the Brochure specifcally states that 1. All certifcates/ documents required for meeting Eligibility / Specifc Eligibility Criteria should be in possession of the applicant and valid as on the date of application. 7. It is, therefore, beyond debate that the documents which are to be supplied with the application form and which can be tendered (hard copies) within such period as may be permitted by the company, should be in possession of the applicant on the date of his application, to indicate that when he applied for the R.O. dealership, he was fulflling the eligibility criteria as prescribed by the company. 8. It is, therefore, clear from the rules made applicable by the company that on the date of the application by an interested candidate seeking R.O. dealership, he should be in possession of all the documents required, including the caste certifcate, as the cutof date for considering eligible candidates was 22-12-2018. We have no hesitation in concluding that on 22-12-2018, candidates who possessed these documents and the caste certifcate were eligible and those candidates who did not possess any of the required documents and importantly, the caste certifcate, on the date of application, were obviously ineligible candidates. 9. The learned advocate for the petitioner submits, on the basis of the record, that he had received a communication dated 27-06-2019, by which he was given ten days time for submitting the said documents and for remitting Rs.40,000/- as a security deposit, on-line. He concedes, on the basis of the record, that the petitioner did not have Appendix III B (Advocates letter) along with appendix III A (For ofer of land), as on 22-12-2018, which was the cut-of date for entering applications for R.O. dealership by interested candidates. He frankly submits on the basis of the record that these two documents are dated 03-07-2019 and they were prepared after the petitioner received the communication dated 27- 10-2019, for tendering the said documents. He also submits, on the basis of the record, that the Eligibility Certifcate for OBC category was not in his possession, when he applied on 22-12-2018 and the R.O. dealership at issue, was reserved for candidates belonging to the OBC category. 10. The Company has entered an afdavit-in-reply on behalf of respondent Nos. 2 and 3 and have stated in paragraph No. 04 as under : 04. I say that, there is no dispute regarding the following facts. A. Advertisement dated 25-11-2018 was issued for allotment of Regular and Retail outlet in various parts of Maharashtra, including for location From Pimpalner Post Ofce towards Navapur within 2 M from OBC category. B. Petitioner has fled application on 22.12.2018 and he is declared to be selected for establishment of dealership. Clause No.9 of the application states that, the Advocate of the applicant has certifed the land to be belonging to Group-1. C. The applicant has ofered land owned by his father Mr. Dilipsing Rajput (page 17). D. In the draw of lots held on 26.06.2019. The petitioner was successful and was informed of his preliminary selection, subject to compliance of norms (Page 20). E. Petitioner submitted opinion of Advocate Mr. Dnyaneshwar Ekhande, dated 03.07.2019 (page29) and afdavit of his father dated 03.07.2019 (page 30 to 34). F. The petitioner has submitted caste certifcate of OBC category dated 02.07.2019. G. Candidature of the petitioner came to be cancelled by the communication dated 10.01.2020, candidature of the petitioner is rejected on the ground that, the caste certifcate submitted is later than the date of advertisement and Appendix III-A and III-B are of a date after the date of fling of the application. H. Petitioner possesses certifcate of belonging to Rajput Bhamta (OBC) Caste. However, the same is issued on 02.07.2019 (Page 36). I. The certifcate at page 12 of petition is dated 28.08.2006. However, the same certifes that, the petitioner is belonging to Vimukta Jati and there is no certifcation of OBC status. 11. It is further submitted in the afdavit-in-reply in paragraph Nos. 04 (2nd paragraph with the same number) and 05 as under : 04. I say that, as the petitioner has failed to satisfy the requirement of possessing the OBC certifcate, as applicable on the date of submission of the application, the candidature of the petitioner came to be cancelled. The petitioner has relied upon the earlier certifcate dated 28.08.2006. However, said certifcate is recognizing the petitioner as a person belonging to Vimukta Jati. Furthermore, subsequent certifcate submitted by the petitioner is secured after submission of application. 05. I say that, Clause (4)(vi)(b) of the Brochure for selection specifcally contemplates that, the candidates will be required to submit as and when advised by the Oil Company, a certifcate issued by the competent authority notifed by the Government of India and / or by the concerned State in which the location has been advertised certifying that the candidate belongs to Other Backward Classes recognized as OBC by a Resolution / Gazette Notifcation issued by the Government of India (Central Government / State Government) 12. In some what similar facts, in Writ Petition No.9974 of 2019 fled by Rajendra Bapurao Hande Vs. Bharat Petroleum Corporation Ltd. And Another, the learned Division Bench of this Court has noted that some of the documents, that were required as a part of the eligibility criteria on the date of entering the application by the interested candidate, were not available with the petitioner and those were prepared after the cut-of date. This Court, therefore, held that such a candidate would not be eligible. In Writ petition No. 5812 of 2019, fled by another similarly placed candidate Navnath s/o Shankar Badage Vs. Indian Oil Corporation, Ltd. and Another, the learned Division Bench of this Court delivered an order on 18-06-2019, holding the same view. | 1[ds]5. It is undisputed that, clause (4)(vi)(b) of the Brochure for the selection of the candidates for the R.O. dealership specifcally provides that the candidates will be required to submit as and when advised by the Oil Company, a certifcate issued by the competent authority notifed by the Government of India and/or by the concerned State in which the location has been advertised certifying that the candidate belongs to Other Backward Classes recognized as OBC by a Resolution / Gazette Notifcation issued by the Government of India (Central Government/ State Government)6. It is equally undisputed that the note below clause 4 of the Brochure specifcally states that 1. All certifcates/ documents required for meeting Eligibility / Specifc Eligibility Criteria should be in possession of the applicant and valid as on the date of application.7. It is, therefore, beyond debate that the documents which are to be supplied with the application form and which can be tendered (hard copies) within such period as may be permitted by the company, should be in possession of the applicant on the date of his application, to indicate that when he applied for the R.O. dealership, he was fulflling the eligibility criteria as prescribed by the company.8. It is, therefore, clear from the rules made applicable by the company that on the date of the application by an interested candidate seeking R.O. dealership, he should be in possession of all the documents required, including the caste certifcate, as the cutof date for considering eligible candidates was 22-12-2018. We have no hesitation in concluding that on 22-12-2018, candidates who possessed these documents and the caste certifcate were eligible and those candidates who did not possess any of the required documents and importantly, the caste certifcate, on the date of application, were obviously ineligible candidates.12. In some what similar facts, in Writ Petition No.9974 of 2019 fled by Rajendra Bapurao Hande Vs. Bharat Petroleum Corporation Ltd. And Another, the learned Division Bench of this Court has noted that some of the documents, that were required as a part of the eligibility criteria on the date of entering the application by the interested candidate, were not available with the petitioner and those were prepared after the cut-of date. This Court, therefore, held that such a candidate would not be eligible. In Writ petition No. 5812 of 2019, fled by another similarly placed candidate Navnath s/o Shankar Badage Vs. Indian Oil Corporation, Ltd. and Another, the learned Division Bench of this Court delivered an order on 18-06-2019, holding the same view. | 1 | 1,548 | 479 | ### Instruction:
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been advertised certifying that the candidate belongs to Other Backward Classes recognized as OBC by a Resolution / Gazette Notifcation issued by the Government of India (Central Government/ State Government) 6. It is equally undisputed that the note below clause 4 of the Brochure specifcally states that 1. All certifcates/ documents required for meeting Eligibility / Specifc Eligibility Criteria should be in possession of the applicant and valid as on the date of application. 7. It is, therefore, beyond debate that the documents which are to be supplied with the application form and which can be tendered (hard copies) within such period as may be permitted by the company, should be in possession of the applicant on the date of his application, to indicate that when he applied for the R.O. dealership, he was fulflling the eligibility criteria as prescribed by the company. 8. It is, therefore, clear from the rules made applicable by the company that on the date of the application by an interested candidate seeking R.O. dealership, he should be in possession of all the documents required, including the caste certifcate, as the cutof date for considering eligible candidates was 22-12-2018. We have no hesitation in concluding that on 22-12-2018, candidates who possessed these documents and the caste certifcate were eligible and those candidates who did not possess any of the required documents and importantly, the caste certifcate, on the date of application, were obviously ineligible candidates. 9. The learned advocate for the petitioner submits, on the basis of the record, that he had received a communication dated 27-06-2019, by which he was given ten days time for submitting the said documents and for remitting Rs.40,000/- as a security deposit, on-line. He concedes, on the basis of the record, that the petitioner did not have Appendix III B (Advocates letter) along with appendix III A (For ofer of land), as on 22-12-2018, which was the cut-of date for entering applications for R.O. dealership by interested candidates. He frankly submits on the basis of the record that these two documents are dated 03-07-2019 and they were prepared after the petitioner received the communication dated 27- 10-2019, for tendering the said documents. He also submits, on the basis of the record, that the Eligibility Certifcate for OBC category was not in his possession, when he applied on 22-12-2018 and the R.O. dealership at issue, was reserved for candidates belonging to the OBC category. 10. The Company has entered an afdavit-in-reply on behalf of respondent Nos. 2 and 3 and have stated in paragraph No. 04 as under : 04. I say that, there is no dispute regarding the following facts. A. Advertisement dated 25-11-2018 was issued for allotment of Regular and Retail outlet in various parts of Maharashtra, including for location From Pimpalner Post Ofce towards Navapur within 2 M from OBC category. B. Petitioner has fled application on 22.12.2018 and he is declared to be selected for establishment of dealership. Clause No.9 of the application states that, the Advocate of the applicant has certifed the land to be belonging to Group-1. C. The applicant has ofered land owned by his father Mr. Dilipsing Rajput (page 17). D. In the draw of lots held on 26.06.2019. The petitioner was successful and was informed of his preliminary selection, subject to compliance of norms (Page 20). E. Petitioner submitted opinion of Advocate Mr. Dnyaneshwar Ekhande, dated 03.07.2019 (page29) and afdavit of his father dated 03.07.2019 (page 30 to 34). F. The petitioner has submitted caste certifcate of OBC category dated 02.07.2019. G. Candidature of the petitioner came to be cancelled by the communication dated 10.01.2020, candidature of the petitioner is rejected on the ground that, the caste certifcate submitted is later than the date of advertisement and Appendix III-A and III-B are of a date after the date of fling of the application. H. Petitioner possesses certifcate of belonging to Rajput Bhamta (OBC) Caste. However, the same is issued on 02.07.2019 (Page 36). I. The certifcate at page 12 of petition is dated 28.08.2006. However, the same certifes that, the petitioner is belonging to Vimukta Jati and there is no certifcation of OBC status. 11. It is further submitted in the afdavit-in-reply in paragraph Nos. 04 (2nd paragraph with the same number) and 05 as under : 04. I say that, as the petitioner has failed to satisfy the requirement of possessing the OBC certifcate, as applicable on the date of submission of the application, the candidature of the petitioner came to be cancelled. The petitioner has relied upon the earlier certifcate dated 28.08.2006. However, said certifcate is recognizing the petitioner as a person belonging to Vimukta Jati. Furthermore, subsequent certifcate submitted by the petitioner is secured after submission of application. 05. I say that, Clause (4)(vi)(b) of the Brochure for selection specifcally contemplates that, the candidates will be required to submit as and when advised by the Oil Company, a certifcate issued by the competent authority notifed by the Government of India and / or by the concerned State in which the location has been advertised certifying that the candidate belongs to Other Backward Classes recognized as OBC by a Resolution / Gazette Notifcation issued by the Government of India (Central Government / State Government) 12. In some what similar facts, in Writ Petition No.9974 of 2019 fled by Rajendra Bapurao Hande Vs. Bharat Petroleum Corporation Ltd. And Another, the learned Division Bench of this Court has noted that some of the documents, that were required as a part of the eligibility criteria on the date of entering the application by the interested candidate, were not available with the petitioner and those were prepared after the cut-of date. This Court, therefore, held that such a candidate would not be eligible. In Writ petition No. 5812 of 2019, fled by another similarly placed candidate Navnath s/o Shankar Badage Vs. Indian Oil Corporation, Ltd. and Another, the learned Division Bench of this Court delivered an order on 18-06-2019, holding the same view.
### Response:
1
### Explanation:
5. It is undisputed that, clause (4)(vi)(b) of the Brochure for the selection of the candidates for the R.O. dealership specifcally provides that the candidates will be required to submit as and when advised by the Oil Company, a certifcate issued by the competent authority notifed by the Government of India and/or by the concerned State in which the location has been advertised certifying that the candidate belongs to Other Backward Classes recognized as OBC by a Resolution / Gazette Notifcation issued by the Government of India (Central Government/ State Government)6. It is equally undisputed that the note below clause 4 of the Brochure specifcally states that 1. All certifcates/ documents required for meeting Eligibility / Specifc Eligibility Criteria should be in possession of the applicant and valid as on the date of application.7. It is, therefore, beyond debate that the documents which are to be supplied with the application form and which can be tendered (hard copies) within such period as may be permitted by the company, should be in possession of the applicant on the date of his application, to indicate that when he applied for the R.O. dealership, he was fulflling the eligibility criteria as prescribed by the company.8. It is, therefore, clear from the rules made applicable by the company that on the date of the application by an interested candidate seeking R.O. dealership, he should be in possession of all the documents required, including the caste certifcate, as the cutof date for considering eligible candidates was 22-12-2018. We have no hesitation in concluding that on 22-12-2018, candidates who possessed these documents and the caste certifcate were eligible and those candidates who did not possess any of the required documents and importantly, the caste certifcate, on the date of application, were obviously ineligible candidates.12. In some what similar facts, in Writ Petition No.9974 of 2019 fled by Rajendra Bapurao Hande Vs. Bharat Petroleum Corporation Ltd. And Another, the learned Division Bench of this Court has noted that some of the documents, that were required as a part of the eligibility criteria on the date of entering the application by the interested candidate, were not available with the petitioner and those were prepared after the cut-of date. This Court, therefore, held that such a candidate would not be eligible. In Writ petition No. 5812 of 2019, fled by another similarly placed candidate Navnath s/o Shankar Badage Vs. Indian Oil Corporation, Ltd. and Another, the learned Division Bench of this Court delivered an order on 18-06-2019, holding the same view.
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M/S. Rapti Commission Agency Vs. State Of U.P. | be said to take place in the course of inter-State, trade or commerce, when a sale or purchase of goods can be said to take place outside the State and when a sale or purchase of goods can be said to take place in the course of import or export. In Gannon Dunkerley and Co. and Ors. v. State of Rajasthan and Ors., 1993 (1) SCC 364 , this Court has held that it is necessary to exclude from the value of a works contract the value of goods which are not taxable by a State in view of Sections 3, 4 and 5 of the Central Sales Tax Act, 1956. The value of goods involved in the execution of a works contract has to be determined after making these exclusions from the value of the works contract. 13. There can be no doubt, upon a plain interpretation of Section 13AA, that it is enacted for the purposes of deduction at source of the State sales tax that is payable by a contractor on the value of a works contract. For the purposes of the deduction neither the owner nor the Commissioner who issues to the contractor a certificate under Section 13AA(5) is entitled to take into account the fact that the works contract involves transfer of property in goods consequent upon of an inter-State sale, an outside sale or a sale in the course of import. The owner is required by Section 13AA(1) to deposit towards the contractors liability to State sales tax four per cent of such amount as he credits or pays to the contractor, regardless of the fact that the value of the works contract includes the value of inter-State sales, outside sales or sales in the course of import. There is, in our view, therefore, no doubt that the provisions of Section 13AA are beyond the powers of the State legislature for the State legislature may make no law levying sales tax on inter-State sales, outside sales or sales in the course of import." 10. In M/s Nathpa Jhakris case (supra) the view expressed in Steel Authority of Indias case (supra) was reiterated. 11. The High Court also observed that it was reading down and narrowing down the language of the provision to sustain the constitutional validity of the same. It was observed that the language of Section 8-E can be narrowed down so as to make it applicable only to intra-state sales/purchases. The appellant in fact raised the dispute on the factual aspects contending that the transaction was one of inter-state character. Its emphasis was on the validity of the provision vis-`-vis inter-state transactions. There was no necessity of any reading down as there was no dispute in the case at hand relating to intra-state sales. The question of appellant having liability to pay purchase tax was also not a relevant factor for determination of the basic question regarding validity of Section 8-E. The nature of a transaction cannot be decided on the basis of the provisions of a taxation statute. It has to be factually examined. The High Court instead of focussing on the factual aspects dealt with issues not relevant, and that too giving clearly indefensible interpretations. The factual aspects should have been asked to be dealt with by the authorities. By directing the authorities to do it after laying down the law, which as noted down was not the correct position in law, would really serve no purpose. On the facts of the case, there is no need to decide the question relating to validity of Section 8-E of the Act except stating that the provision is subject to what has been stated in Steel Authoritys case (supra) and M/s Nathpa Jhakris case (supra), for which the factual determination has to be done by the authorities. Therefore, we allow the appeal subject to the following directions: (1) The reply filed by the appellant on 11.7.2001 shall be dealt with by the respondent no. 3 in accordance with law. The said authority shall decide as to the nature of the transaction i.e. whether it is of intra- state or inter-state character. If it is of inter-State character, the decisions in Steel Authoritys case (supra) and Nathpa Jhakri case (supra) shall apply. Section 8-E, therefore, cannot be held applicable to inter-State transactions. (2) The question whether the appellant has any liability to pay purchase tax shall not be dealt with in the proceedings relating to which the notice was issued on 8.7.2001 and the reply was filed on 11.7.2001. (3) It will be for the appellant to establish that the transaction in question was of inter-State character. (4) The appellants shall be given opportunity to file further reply and place such materials as according to it are relevant before the concerned authority within four weeks from today. (5) Considering the reply and further reply and materials to be placed for consideration by the appellant, the concerned trade tax authority shall decide the issue in accordance with law. 12. Before we part with the case, it would be appropriate to remind the legislatures of what was stated in Bhawani Cotton Mills case (supra) that if a person is not liable for payment of tax at all, at any time, the collection of a tax from him, with a possible contingency of refund at a later stage, will not make the original levy valid, because if sales or purchases are exempt from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levying tax. The view was reiterated in Steel Authoritys case (supra) and Nathpa Jhakri case (supra). In the latter case, it was noted, echoing the view in Bhawani Cotton Mills case (supra) that it is no solace to say that such a person can get refund after completion of assessment. If the principles indicated in these cases are followed, large number of unnecessary litigations can be avoided. 13. | 1[ds]Coming to the plea of alternative remedy, we find that such a plea does not appear to have been raised by the respondent as there is no discussion in the High Courts judgment in this regard. Further, the constitutional validity of Section 8-E issue could not have been decided by the statutory authorities. Be that as it may, we find that the High Court has thoroughly confused the issues. The decisions of this Court in Steel Authority of Indias case (supra) and M/s Nathpa Jhakris case (supra) related to legislative competence in the matter of deduction of tax under a state statute in respect of an inter-state transaction. The High Court commented upon the correctness of the judgments observing that several larger Benches decisions were not considered. To say the least the High Courts approach is inappropriate. The decisions in Steel Authoritys case (supra) and M/s Nathpa Jhakris case (supra) related to issues on which there appears to be no contrary view taken by any larger Bench. The High Court could not have sat in judgment over the correctness of the judgments of this Court. The High Court appears to have proceeded on the basis that this Court should have read down the provisions under consideration to uphold them.In other words, the rule applies only where two views are possible as to the meaning of the statutory language. In neither Steel Authoritys case (supra) nor M/s Nathpa Jhakris case (supra) that was the position. The basic issue related to power to provide for any deduction of tax in respect ofe transactions. There was no issue relating toe transactions. Therefore, the question of any reading down was of no relevance13. There can be no doubt, upon a plain interpretation of Section 13AA, that it is enacted for the purposes of deduction at source of the State sales tax that is payable by a contractor on the value of a works contract. For the purposes of the deduction neither the owner nor the Commissioner who issues to the contractor a certificate under Section 13AA(5) is entitled to take into account the fact that the works contract involves transfer of property in goods consequent upon of ane sale, an outside sale or a sale in the course of import. The owner is required by Section 13AA(1) to deposit towards the contractors liability to State sales tax four per cent of such amount as he credits or pays to the contractor, regardless of the fact that the value of the works contract includes the value ofe sales, outside sales or sales in the course of import. There is, in our view, therefore, no doubt that the provisions of Section 13AA are beyond the powers of the State legislature for the State legislature may make no law levying sales tax one sales, outside sales or sales in the course of import."In M/s Nathpa Jhakris case (supra) the view expressed in Steel Authority of Indias case (supra) was reiteratedThe High Court also observed that it was reading down and narrowing down the language of the provision to sustain the constitutional validity of the same. It was observed that the language of SectionE can be narrowed down so as to make it applicable only toe sales/purchases. The appellant in fact raised the dispute on the factual aspects contending that the transaction was one ofe character. Its emphasis was on the validity of the provisione transactions. There was no necessity of any reading down as there was no dispute in the case at hand relating toe sales. The question of appellant having liability to pay purchase tax was also not a relevant factor for determination of the basic question regarding validity of Section. The nature of a transaction cannot be decided on the basis of the provisions of a taxation statute. It has to be factually examined. The High Court instead of focussing on the factual aspects dealt with issues not relevant, and that too giving clearly indefensible interpretations. The factual aspects should have been asked to be dealt with by the authorities. By directing the authorities to do it after laying down the law, which as noted down was not the correct position in law, would really serve no purpose. On the facts of the case, there is no need to decide the question relating to validity of SectionE of the Act except stating that the provision is subject to what has been stated in Steel Authoritys case (supra) and M/s Nathpa Jhakris case (supra), for which the factual determination has to be done by the authorities. Therefore, we allow the appeal subject to the following directions:(1) The reply filed by the appellant on 11.7.2001 shall be dealt with by the respondent no. 3 in accordance with lawThe said authority shall decide as to the nature of the transaction i.e. whether it is of intrastate ore character. If it is ofe character, the decisions in Steel Authoritys case (supra) and Nathpa Jhakri case (supra) shall apply. Section, therefore, cannot be held applicable to(2) The question whether the appellant has any liability to pay purchase tax shall not be dealt with in the proceedings relating to which the notice was issued on 8.7.2001 and the reply was filed on 11.7.2001(3) It will be for the appellant to establish that the transaction in question was of(4) The appellants shall be given opportunity to file further reply and place such materials as according to it are relevant before the concerned authority within four weeks from today(5) Considering the reply and further reply and materials to be placed for consideration by the appellant, the concerned trade tax authority shall decide the issue in accordance with lawBefore we part with the case, it would be appropriate to remind the legislatures of what was stated in Bhawani Cotton Mills case (supra) that if a person is not liable for payment of tax at all, at any time, the collection of a tax from him, with a possible contingency of refund at a later stage, will not make the original levy valid, because if sales or purchases are exempt from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levying tax. The view was reiterated in Steel Authoritys case (supra) and Nathpa Jhakri case (supra). In the latter case, it was noted, echoing the view in Bhawani Cotton Mills case (supra) that it is no solace to say that such a person can get refund after completion of assessment. If the principles indicated in these cases are followed, large number of unnecessary litigations can be avoided. | 1 | 3,113 | 1,243 | ### 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:
be said to take place in the course of inter-State, trade or commerce, when a sale or purchase of goods can be said to take place outside the State and when a sale or purchase of goods can be said to take place in the course of import or export. In Gannon Dunkerley and Co. and Ors. v. State of Rajasthan and Ors., 1993 (1) SCC 364 , this Court has held that it is necessary to exclude from the value of a works contract the value of goods which are not taxable by a State in view of Sections 3, 4 and 5 of the Central Sales Tax Act, 1956. The value of goods involved in the execution of a works contract has to be determined after making these exclusions from the value of the works contract. 13. There can be no doubt, upon a plain interpretation of Section 13AA, that it is enacted for the purposes of deduction at source of the State sales tax that is payable by a contractor on the value of a works contract. For the purposes of the deduction neither the owner nor the Commissioner who issues to the contractor a certificate under Section 13AA(5) is entitled to take into account the fact that the works contract involves transfer of property in goods consequent upon of an inter-State sale, an outside sale or a sale in the course of import. The owner is required by Section 13AA(1) to deposit towards the contractors liability to State sales tax four per cent of such amount as he credits or pays to the contractor, regardless of the fact that the value of the works contract includes the value of inter-State sales, outside sales or sales in the course of import. There is, in our view, therefore, no doubt that the provisions of Section 13AA are beyond the powers of the State legislature for the State legislature may make no law levying sales tax on inter-State sales, outside sales or sales in the course of import." 10. In M/s Nathpa Jhakris case (supra) the view expressed in Steel Authority of Indias case (supra) was reiterated. 11. The High Court also observed that it was reading down and narrowing down the language of the provision to sustain the constitutional validity of the same. It was observed that the language of Section 8-E can be narrowed down so as to make it applicable only to intra-state sales/purchases. The appellant in fact raised the dispute on the factual aspects contending that the transaction was one of inter-state character. Its emphasis was on the validity of the provision vis-`-vis inter-state transactions. There was no necessity of any reading down as there was no dispute in the case at hand relating to intra-state sales. The question of appellant having liability to pay purchase tax was also not a relevant factor for determination of the basic question regarding validity of Section 8-E. The nature of a transaction cannot be decided on the basis of the provisions of a taxation statute. It has to be factually examined. The High Court instead of focussing on the factual aspects dealt with issues not relevant, and that too giving clearly indefensible interpretations. The factual aspects should have been asked to be dealt with by the authorities. By directing the authorities to do it after laying down the law, which as noted down was not the correct position in law, would really serve no purpose. On the facts of the case, there is no need to decide the question relating to validity of Section 8-E of the Act except stating that the provision is subject to what has been stated in Steel Authoritys case (supra) and M/s Nathpa Jhakris case (supra), for which the factual determination has to be done by the authorities. Therefore, we allow the appeal subject to the following directions: (1) The reply filed by the appellant on 11.7.2001 shall be dealt with by the respondent no. 3 in accordance with law. The said authority shall decide as to the nature of the transaction i.e. whether it is of intra- state or inter-state character. If it is of inter-State character, the decisions in Steel Authoritys case (supra) and Nathpa Jhakri case (supra) shall apply. Section 8-E, therefore, cannot be held applicable to inter-State transactions. (2) The question whether the appellant has any liability to pay purchase tax shall not be dealt with in the proceedings relating to which the notice was issued on 8.7.2001 and the reply was filed on 11.7.2001. (3) It will be for the appellant to establish that the transaction in question was of inter-State character. (4) The appellants shall be given opportunity to file further reply and place such materials as according to it are relevant before the concerned authority within four weeks from today. (5) Considering the reply and further reply and materials to be placed for consideration by the appellant, the concerned trade tax authority shall decide the issue in accordance with law. 12. Before we part with the case, it would be appropriate to remind the legislatures of what was stated in Bhawani Cotton Mills case (supra) that if a person is not liable for payment of tax at all, at any time, the collection of a tax from him, with a possible contingency of refund at a later stage, will not make the original levy valid, because if sales or purchases are exempt from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levying tax. The view was reiterated in Steel Authoritys case (supra) and Nathpa Jhakri case (supra). In the latter case, it was noted, echoing the view in Bhawani Cotton Mills case (supra) that it is no solace to say that such a person can get refund after completion of assessment. If the principles indicated in these cases are followed, large number of unnecessary litigations can be avoided. 13.
### Response:
1
### Explanation:
The High Court commented upon the correctness of the judgments observing that several larger Benches decisions were not considered. To say the least the High Courts approach is inappropriate. The decisions in Steel Authoritys case (supra) and M/s Nathpa Jhakris case (supra) related to issues on which there appears to be no contrary view taken by any larger Bench. The High Court could not have sat in judgment over the correctness of the judgments of this Court. The High Court appears to have proceeded on the basis that this Court should have read down the provisions under consideration to uphold them.In other words, the rule applies only where two views are possible as to the meaning of the statutory language. In neither Steel Authoritys case (supra) nor M/s Nathpa Jhakris case (supra) that was the position. The basic issue related to power to provide for any deduction of tax in respect ofe transactions. There was no issue relating toe transactions. Therefore, the question of any reading down was of no relevance13. There can be no doubt, upon a plain interpretation of Section 13AA, that it is enacted for the purposes of deduction at source of the State sales tax that is payable by a contractor on the value of a works contract. For the purposes of the deduction neither the owner nor the Commissioner who issues to the contractor a certificate under Section 13AA(5) is entitled to take into account the fact that the works contract involves transfer of property in goods consequent upon of ane sale, an outside sale or a sale in the course of import. The owner is required by Section 13AA(1) to deposit towards the contractors liability to State sales tax four per cent of such amount as he credits or pays to the contractor, regardless of the fact that the value of the works contract includes the value ofe sales, outside sales or sales in the course of import. There is, in our view, therefore, no doubt that the provisions of Section 13AA are beyond the powers of the State legislature for the State legislature may make no law levying sales tax one sales, outside sales or sales in the course of import."In M/s Nathpa Jhakris case (supra) the view expressed in Steel Authority of Indias case (supra) was reiteratedThe High Court also observed that it was reading down and narrowing down the language of the provision to sustain the constitutional validity of the same. It was observed that the language of SectionE can be narrowed down so as to make it applicable only toe sales/purchases. The appellant in fact raised the dispute on the factual aspects contending that the transaction was one ofe character. Its emphasis was on the validity of the provisione transactions. There was no necessity of any reading down as there was no dispute in the case at hand relating toe sales. The question of appellant having liability to pay purchase tax was also not a relevant factor for determination of the basic question regarding validity of Section. The nature of a transaction cannot be decided on the basis of the provisions of a taxation statute. It has to be factually examined. The High Court instead of focussing on the factual aspects dealt with issues not relevant, and that too giving clearly indefensible interpretations. The factual aspects should have been asked to be dealt with by the authorities. By directing the authorities to do it after laying down the law, which as noted down was not the correct position in law, would really serve no purpose. On the facts of the case, there is no need to decide the question relating to validity of SectionE of the Act except stating that the provision is subject to what has been stated in Steel Authoritys case (supra) and M/s Nathpa Jhakris case (supra), for which the factual determination has to be done by the authorities. Therefore, we allow the appeal subject to the following directions:(1) The reply filed by the appellant on 11.7.2001 shall be dealt with by the respondent no. 3 in accordance with lawThe said authority shall decide as to the nature of the transaction i.e. whether it is of intrastate ore character. If it is ofe character, the decisions in Steel Authoritys case (supra) and Nathpa Jhakri case (supra) shall apply. Section, therefore, cannot be held applicable to(2) The question whether the appellant has any liability to pay purchase tax shall not be dealt with in the proceedings relating to which the notice was issued on 8.7.2001 and the reply was filed on 11.7.2001(3) It will be for the appellant to establish that the transaction in question was of(4) The appellants shall be given opportunity to file further reply and place such materials as according to it are relevant before the concerned authority within four weeks from today(5) Considering the reply and further reply and materials to be placed for consideration by the appellant, the concerned trade tax authority shall decide the issue in accordance with lawBefore we part with the case, it would be appropriate to remind the legislatures of what was stated in Bhawani Cotton Mills case (supra) that if a person is not liable for payment of tax at all, at any time, the collection of a tax from him, with a possible contingency of refund at a later stage, will not make the original levy valid, because if sales or purchases are exempt from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levying tax. The view was reiterated in Steel Authoritys case (supra) and Nathpa Jhakri case (supra). In the latter case, it was noted, echoing the view in Bhawani Cotton Mills case (supra) that it is no solace to say that such a person can get refund after completion of assessment. If the principles indicated in these cases are followed, large number of unnecessary litigations can be avoided.
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Commissioner of Taxes Assam, Shillong Vs. Prabhat Marketing Company Limited, Gauhati | September 30, 1959 and September, 30, I960, the Sales Tax Officer assessed the respondent to sales tax holding that hydrogenated oil was exempt from sales tax but the value of the containers should be assessed at Re. 1 for each container of hydrogenated oil and 2 annas for salt bag and a small mustard oil tin which are other exempted goods for the period ending September 30, 1959. For the other period ending September 30, 1960, the value of the containers of the exempted goods was estimated at Rs. 21,500. The respondent preferred appeals to the Assistant Commissioner of Taxes, but the appeals were dismissed. The respondent preferred second appeals before the Assam Board of Revenue which by its order, dated June 17, 1963 also dismissed the appeals. The respondent thereafter filed an application under S. 32 of the Assam Sales Tax Act, 1947, for reference of the following two questions of law to the High Court:1. Whether delivery, of goods made to the Assam Rifles and NFFA, at Rowriah Air Port for consumption outside the State of Assam, constitutes a sale liable to Sales Tax under the Act? 2. Whether the value of the containers, of hydrogenated oil is assessable to Sales Tax under the Act though the oil itself is not taxable under it?" By its judgment, dated May 20, 1964 the High Court answered the first question against the assessee. With regard to the second question, the High Court held that the value of the containers was not assessable to sales tax "unless separate price has been charged for the containers". The High Court took the view that there was no evidence to show that actually separate price was paid for the containers and hence there was no sale and there could not be any tax on the containers. The High Court accordingly answered the second question in favour of the assessee. 3. The question presented for determination in these appeals is whether the value of containers of hydrogenated oil is assessable to sales tax under the Assam Sales Tax Act, 1947. 4. On behalf of the appellant Mr. Naunit Lal contended that the High Court has erred in holding that unless a separate price has been charged for the containers the value of the containers is not assessable to sales tax. It was submitted that the parties may have intended in the circumstances to sell the hydrogenated oil apart from the containers; and the mere fact that the price of the containers was not separately fixed would make no difference to the assessment of sales tax. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. It is well established that in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, the agreement must be supported by money consideration, and that as a result of the transaction the property should actually pass in the goods. Unless all the ingredients are present in the transaction there conic be no sale of goods and sales tax cannot be imposed [State of Madras v. Gannon Dunkerley and Co. (Madras)], 1959 SCR 379 : (AIR 1958 SC 560 ). But the contract of sale may be express or implied. In Hyderabad Deccan Cigrarette Factory v. State of Andhra Pradesh, (1966) 17 STC 624 (SC), it was held by this Court that in a case of this description what the Sales-tax authorities had to do was to ask and answer the question whether the parties, having regard to the circumstances of the case, intended to sell or buy the packing materials or whether the subject-matter of the contracts of sale was only an exempted article, and packing materials did not form part of the bargain at all, but were used by the sellers as a convenient and cheap vehicle of transport. At p. 628 of the Report Subha Rao J., speaking for the court, observed as follows:"In the instant case, it is not disputed that there were no express contracts of sale of the packing materials between the assessee and its customers. On the facts, could such contracts be inferred? The authority concerned should ask and answer the question whether the parties in the instant case, having regard to the circumstances of the case, intended to sell or buy the packing materials, or whether the subject matter of the contracts of sale was only the cigarettes and that the packing materials did not form part of the bargain at all, but were used by the seller as a convenient and cheap vehicle of transport. He may also have to consider the question whether, when a trader in cigarettes sold cigarettes priced at a particular figure for a specified number and handed them over to a customer in a cheap cardboard container of insignificant value, he intended to sell the cardboard container and the customer intended to buy the same? It is not possible to state as a proposition of law that whenever particular goods were sold in a container the parties did not intend to sell and buy the container also. Many cases may be visualized where the container is comparatively of high value and sometimes even higher than that contained in it. Scent or whisky may be sold in costly containers. Even cigarettes may be sold in silver or gold caskets. It may be that in such cases the agreement to pay an extra price for the container may be more readily implied." The question as to whether there is an agreement to sell packing material is a pure question of fact depending upon the circumstances found in each case. But the High Court answered the question of law referred to it by the Board of Revenue without addressing itself to the question whether there was an express or implied agreement for the sale of the containers of hydrogenated oil the present case. | 1[ds]In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. It is well established that in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, the agreement must be supported by money consideration, and that as a result of the transaction the property should actually pass in the goods. Unless all the ingredients are present in the transaction there conic be no sale of goods and sales tax cannot be imposedThe question as to whether there is an agreement to sell packing material is a pure question of fact depending upon the circumstances found in each case. But the High Court answered the question of law referred to it by the Board of Revenue without addressing itself to the question whether there was an express or implied agreement for the sale of the containers of hydrogenated oil the present case. | 1 | 1,161 | 179 | ### 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:
September 30, 1959 and September, 30, I960, the Sales Tax Officer assessed the respondent to sales tax holding that hydrogenated oil was exempt from sales tax but the value of the containers should be assessed at Re. 1 for each container of hydrogenated oil and 2 annas for salt bag and a small mustard oil tin which are other exempted goods for the period ending September 30, 1959. For the other period ending September 30, 1960, the value of the containers of the exempted goods was estimated at Rs. 21,500. The respondent preferred appeals to the Assistant Commissioner of Taxes, but the appeals were dismissed. The respondent preferred second appeals before the Assam Board of Revenue which by its order, dated June 17, 1963 also dismissed the appeals. The respondent thereafter filed an application under S. 32 of the Assam Sales Tax Act, 1947, for reference of the following two questions of law to the High Court:1. Whether delivery, of goods made to the Assam Rifles and NFFA, at Rowriah Air Port for consumption outside the State of Assam, constitutes a sale liable to Sales Tax under the Act? 2. Whether the value of the containers, of hydrogenated oil is assessable to Sales Tax under the Act though the oil itself is not taxable under it?" By its judgment, dated May 20, 1964 the High Court answered the first question against the assessee. With regard to the second question, the High Court held that the value of the containers was not assessable to sales tax "unless separate price has been charged for the containers". The High Court took the view that there was no evidence to show that actually separate price was paid for the containers and hence there was no sale and there could not be any tax on the containers. The High Court accordingly answered the second question in favour of the assessee. 3. The question presented for determination in these appeals is whether the value of containers of hydrogenated oil is assessable to sales tax under the Assam Sales Tax Act, 1947. 4. On behalf of the appellant Mr. Naunit Lal contended that the High Court has erred in holding that unless a separate price has been charged for the containers the value of the containers is not assessable to sales tax. It was submitted that the parties may have intended in the circumstances to sell the hydrogenated oil apart from the containers; and the mere fact that the price of the containers was not separately fixed would make no difference to the assessment of sales tax. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. It is well established that in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, the agreement must be supported by money consideration, and that as a result of the transaction the property should actually pass in the goods. Unless all the ingredients are present in the transaction there conic be no sale of goods and sales tax cannot be imposed [State of Madras v. Gannon Dunkerley and Co. (Madras)], 1959 SCR 379 : (AIR 1958 SC 560 ). But the contract of sale may be express or implied. In Hyderabad Deccan Cigrarette Factory v. State of Andhra Pradesh, (1966) 17 STC 624 (SC), it was held by this Court that in a case of this description what the Sales-tax authorities had to do was to ask and answer the question whether the parties, having regard to the circumstances of the case, intended to sell or buy the packing materials or whether the subject-matter of the contracts of sale was only an exempted article, and packing materials did not form part of the bargain at all, but were used by the sellers as a convenient and cheap vehicle of transport. At p. 628 of the Report Subha Rao J., speaking for the court, observed as follows:"In the instant case, it is not disputed that there were no express contracts of sale of the packing materials between the assessee and its customers. On the facts, could such contracts be inferred? The authority concerned should ask and answer the question whether the parties in the instant case, having regard to the circumstances of the case, intended to sell or buy the packing materials, or whether the subject matter of the contracts of sale was only the cigarettes and that the packing materials did not form part of the bargain at all, but were used by the seller as a convenient and cheap vehicle of transport. He may also have to consider the question whether, when a trader in cigarettes sold cigarettes priced at a particular figure for a specified number and handed them over to a customer in a cheap cardboard container of insignificant value, he intended to sell the cardboard container and the customer intended to buy the same? It is not possible to state as a proposition of law that whenever particular goods were sold in a container the parties did not intend to sell and buy the container also. Many cases may be visualized where the container is comparatively of high value and sometimes even higher than that contained in it. Scent or whisky may be sold in costly containers. Even cigarettes may be sold in silver or gold caskets. It may be that in such cases the agreement to pay an extra price for the container may be more readily implied." The question as to whether there is an agreement to sell packing material is a pure question of fact depending upon the circumstances found in each case. But the High Court answered the question of law referred to it by the Board of Revenue without addressing itself to the question whether there was an express or implied agreement for the sale of the containers of hydrogenated oil the present case.
### Response:
1
### Explanation:
In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. It is well established that in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, the agreement must be supported by money consideration, and that as a result of the transaction the property should actually pass in the goods. Unless all the ingredients are present in the transaction there conic be no sale of goods and sales tax cannot be imposedThe question as to whether there is an agreement to sell packing material is a pure question of fact depending upon the circumstances found in each case. But the High Court answered the question of law referred to it by the Board of Revenue without addressing itself to the question whether there was an express or implied agreement for the sale of the containers of hydrogenated oil the present case.
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Ganga Dhar Vs. Shankar Lal & Others | an oppressive term? In our view, it does not do so. It is not necessary for us to go so far as to say that the length of the term of the mortgage can never by itself show that the bargain was oppressive. We do not desire to say anything on that question in this case. We think it enough to say that we have nothing here to show that the length of the term was in any way disadvantageous to the mortgagor. It is quite conceivable that it was to his advantage. The suit for redemption was brought over forty-seven years after the date of the mortgage. It seems to us impossible that if the term was oppressive, that was not realized much earlier and the suit brought within a short time of the mortgage. The learned Judicial Commissioner felt that the respondents contention that the suit had been brought as the price of landed property had gone up after the war, was justified. We are not prepared to say that he was wrong in this view. We cannot also ignore as appears from a large number of reported decisions, that it is not uncommon in various parts of India to have long term mortgages. Then we find that the property was subject to a prior mortgage. We are not aware what the term of that mortgage was. But we find that that of that mortgage included another property which became freed from it as a result of the mortgage in suit. This would show that the mortgagee under this mortgage was not putting any pressure on the mortgagor. That conclusion also receives support from the fact that the mortgage money under the present mortgage was more than that under the earlier mortgage but the mortgagee in the present case was satisfied with a smaller security.Again, no complaint is made that the interest charged, which was to be measured by the rent of the property, was in any manner high. All these, to our mind, indicate that the mortgagee had not taken any unfair advantage of his position as the lender, nor that the mortgagor was under any financial embarrassment.18. It is said that the mortgage instrument itself indicates that the bargain is hard, for while the mortgagor cannot redeem for eighty-five years, the mortgagee is free to demand payment of his dues at any time he likes. This contention is plainly fallacious. There is nothing in the mortgage instrument permitting the mortgagee to demand any money, and it is well settled that the mortgagees right to enforce the mortgage and the mortgagors right to redeem are co-extensive.19. Then it is said that under the deed the mortgagee can spend any amount on repairs to the mortgage property and in putting up new constructions there and the mortgagor could only redeem after paying the expenses for these. We are unable to agree that such is the effect of the mortgage instrument. We cannot lose sight of the fact that the mortgaged shop and the area of the land on which it stood were very small. It was not possible to spend a large sum on repairs or construction there. Furthermore, having agreed to 85 years as the term of the mortgage, the parties must have imagined that during this long period repairs and constructions would become necessary. It is only such necessary repairs as are contemplated by the instrument and we do not consider that it is hard on the mortgagor to have to pay for such repairs and construction when he redeems the property and gets the benefit of the repairs and construction. Neither do we think that there is anything in the contention that under the document the mortgagor was bound to accept whatever was shown in the mortgagees account as having been spent on the repairs and construction. That is not, in our view, the effect of the relevant clause which reads, "The expenses spent in repairs and new constructions will be paid ........ according to the account produced by the mortgagee." All that it means is that in claiming moneys on account of repairs and construction the mortgagee will have to show from his account that he spent these moneys. It is really a safeguard for the mortgagor. It was also said that all the terms in the deed were for the benefit of the mortgagee and that showed that bargain was a hard one.We do not think that all the terms were for the benefit of the mortgagee, or that what there was in the instrument was for his benefit and indicated that the mortgagee had forced a hard bargain on the mortgagor. We have earlier said how the bargain appears to us to have been fair and one as between parties dealing with each other on equal footing.20. We have no evidence in this case of the circumstances existing at the date of the mortgage as to the pecuniary condition of the mortgagor or as to anything else from which we may come to the conclusion that the mortgagee had taken advantage of the difficulties of the mortgagor and imposed a hard bargain on him. It was said that the fact that the property was subject to a prior mortgage at the date of the mortgage in suit indicates the impecunious position of the mortgagor.We are unable to agree with this contention. Every debtor is not necessarily impecunious. The mortgagor certainly derived this advantage from that mortgage that he was able to free from the earlier mortgage the kacheri and he has been in enjoyment of it ever since. That to our mind, indicates that the bargain had been freely made. There was nothing else to which our attention was directed as showing that the bargain was hard. We, therefore, think that the bargain was a reasonable one and the eighty-five years; term of the mortgage should be enforced. We then come to the conclusion that the suit was premature and must fail.2 | 0[ds]6.The rule against clogs on the equity of redemption is that, a mortgage shall always be redeemable and a mortgagors right to redeem shall neither be taken away nor be limited by any contract between the parties.The principle behind the rule was expressed by Lindley M. R. in Santleyv. Wilde, (1899) 2 Ch474 (B), in these wordsprinciple is this : a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt or the discharge of some other obligation for which it is given. This is the idea of a mortgage : and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding. That, in my opinion, is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption and is therefore void. It follows from this, that "once a mortgage always a mortgage.The right of redemption, therefore, cannot be taken away. The Courts will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing, therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of six months the mortgagor will have no claim over the mortgaged property, and the mortgage deed will be deemed to be deed of sale in favour of the mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagors right to redeem the mortgage after the specified period. This is not permissible, for "once a mortgage always a mortgage" and therefore alwaysour view, it does not do so. It is not necessary for us to go so far as to say that the length of the term of the mortgage can never by itself show that the bargain was oppressive. We do not desire to say anything on that question in this case. We think it enough to say that we have nothing here to show that the length of the term was in any way disadvantageous to the mortgagor. It is quite conceivable that it was to his advantage. The suit for redemption was brought over forty-seven years after the date of the mortgage. It seems to us impossible that if the term was oppressive, that was not realized much earlier and the suit brought within a short time of the mortgage. The learned Judicial Commissioner felt that the respondents contention that the suit had been brought as the price of landed property had gone up after the war, was justified. We are not prepared to say that he was wrong in this view. We cannot also ignore as appears from a large number of reported decisions, that it is not uncommon in various parts of India to have long term mortgages. Then we find that the property was subject to a prior mortgage. We are not aware what the term of that mortgage was. But we find that that of that mortgage included another property which became freed from it as a result of the mortgage in suit. This would show that the mortgagee under this mortgage was not putting any pressure on the mortgagor. That conclusion also receives support from the fact that the mortgage money under the present mortgage was more than that under the earlier mortgage but the mortgagee in the present case was satisfied with a smaller security.Again, no complaint is made that the interest charged, which was to be measured by the rent of the property, was in any manner high. All these, to our mind, indicate that the mortgagee had not taken any unfair advantage of his position as the lender, nor that the mortgagor was under any financial embarrassment.We have no evidence in this case of the circumstances existing at the date of the mortgage as to the pecuniary condition of the mortgagor or as to anything else from which we may come to the conclusion that the mortgagee had taken advantage of the difficulties of the mortgagor and imposed a hard bargain on him. It was said that the fact that the property was subject to a prior mortgage at the date of the mortgage in suit indicates the impecunious position of the mortgagor.We are unable to agree with this contention. Every debtor is not necessarily impecunious. The mortgagor certainly derived this advantage from that mortgage that he was able to free from the earlier mortgage the kacheri and he has been in enjoyment of it ever since. That to our mind, indicates that the bargain had been freely made. There was nothing else to which our attention was directed as showing that the bargain was hard. We, therefore, think that the bargain was a reasonable one and the eighty-five years; term of the mortgage should be enforced. We then come to the conclusion that the suit was premature and must fail. | 0 | 3,988 | 928 | ### 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:
an oppressive term? In our view, it does not do so. It is not necessary for us to go so far as to say that the length of the term of the mortgage can never by itself show that the bargain was oppressive. We do not desire to say anything on that question in this case. We think it enough to say that we have nothing here to show that the length of the term was in any way disadvantageous to the mortgagor. It is quite conceivable that it was to his advantage. The suit for redemption was brought over forty-seven years after the date of the mortgage. It seems to us impossible that if the term was oppressive, that was not realized much earlier and the suit brought within a short time of the mortgage. The learned Judicial Commissioner felt that the respondents contention that the suit had been brought as the price of landed property had gone up after the war, was justified. We are not prepared to say that he was wrong in this view. We cannot also ignore as appears from a large number of reported decisions, that it is not uncommon in various parts of India to have long term mortgages. Then we find that the property was subject to a prior mortgage. We are not aware what the term of that mortgage was. But we find that that of that mortgage included another property which became freed from it as a result of the mortgage in suit. This would show that the mortgagee under this mortgage was not putting any pressure on the mortgagor. That conclusion also receives support from the fact that the mortgage money under the present mortgage was more than that under the earlier mortgage but the mortgagee in the present case was satisfied with a smaller security.Again, no complaint is made that the interest charged, which was to be measured by the rent of the property, was in any manner high. All these, to our mind, indicate that the mortgagee had not taken any unfair advantage of his position as the lender, nor that the mortgagor was under any financial embarrassment.18. It is said that the mortgage instrument itself indicates that the bargain is hard, for while the mortgagor cannot redeem for eighty-five years, the mortgagee is free to demand payment of his dues at any time he likes. This contention is plainly fallacious. There is nothing in the mortgage instrument permitting the mortgagee to demand any money, and it is well settled that the mortgagees right to enforce the mortgage and the mortgagors right to redeem are co-extensive.19. Then it is said that under the deed the mortgagee can spend any amount on repairs to the mortgage property and in putting up new constructions there and the mortgagor could only redeem after paying the expenses for these. We are unable to agree that such is the effect of the mortgage instrument. We cannot lose sight of the fact that the mortgaged shop and the area of the land on which it stood were very small. It was not possible to spend a large sum on repairs or construction there. Furthermore, having agreed to 85 years as the term of the mortgage, the parties must have imagined that during this long period repairs and constructions would become necessary. It is only such necessary repairs as are contemplated by the instrument and we do not consider that it is hard on the mortgagor to have to pay for such repairs and construction when he redeems the property and gets the benefit of the repairs and construction. Neither do we think that there is anything in the contention that under the document the mortgagor was bound to accept whatever was shown in the mortgagees account as having been spent on the repairs and construction. That is not, in our view, the effect of the relevant clause which reads, "The expenses spent in repairs and new constructions will be paid ........ according to the account produced by the mortgagee." All that it means is that in claiming moneys on account of repairs and construction the mortgagee will have to show from his account that he spent these moneys. It is really a safeguard for the mortgagor. It was also said that all the terms in the deed were for the benefit of the mortgagee and that showed that bargain was a hard one.We do not think that all the terms were for the benefit of the mortgagee, or that what there was in the instrument was for his benefit and indicated that the mortgagee had forced a hard bargain on the mortgagor. We have earlier said how the bargain appears to us to have been fair and one as between parties dealing with each other on equal footing.20. We have no evidence in this case of the circumstances existing at the date of the mortgage as to the pecuniary condition of the mortgagor or as to anything else from which we may come to the conclusion that the mortgagee had taken advantage of the difficulties of the mortgagor and imposed a hard bargain on him. It was said that the fact that the property was subject to a prior mortgage at the date of the mortgage in suit indicates the impecunious position of the mortgagor.We are unable to agree with this contention. Every debtor is not necessarily impecunious. The mortgagor certainly derived this advantage from that mortgage that he was able to free from the earlier mortgage the kacheri and he has been in enjoyment of it ever since. That to our mind, indicates that the bargain had been freely made. There was nothing else to which our attention was directed as showing that the bargain was hard. We, therefore, think that the bargain was a reasonable one and the eighty-five years; term of the mortgage should be enforced. We then come to the conclusion that the suit was premature and must fail.2
### Response:
0
### Explanation:
6.The rule against clogs on the equity of redemption is that, a mortgage shall always be redeemable and a mortgagors right to redeem shall neither be taken away nor be limited by any contract between the parties.The principle behind the rule was expressed by Lindley M. R. in Santleyv. Wilde, (1899) 2 Ch474 (B), in these wordsprinciple is this : a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt or the discharge of some other obligation for which it is given. This is the idea of a mortgage : and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding. That, in my opinion, is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption and is therefore void. It follows from this, that "once a mortgage always a mortgage.The right of redemption, therefore, cannot be taken away. The Courts will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing, therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of six months the mortgagor will have no claim over the mortgaged property, and the mortgage deed will be deemed to be deed of sale in favour of the mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagors right to redeem the mortgage after the specified period. This is not permissible, for "once a mortgage always a mortgage" and therefore alwaysour view, it does not do so. It is not necessary for us to go so far as to say that the length of the term of the mortgage can never by itself show that the bargain was oppressive. We do not desire to say anything on that question in this case. We think it enough to say that we have nothing here to show that the length of the term was in any way disadvantageous to the mortgagor. It is quite conceivable that it was to his advantage. The suit for redemption was brought over forty-seven years after the date of the mortgage. It seems to us impossible that if the term was oppressive, that was not realized much earlier and the suit brought within a short time of the mortgage. The learned Judicial Commissioner felt that the respondents contention that the suit had been brought as the price of landed property had gone up after the war, was justified. We are not prepared to say that he was wrong in this view. We cannot also ignore as appears from a large number of reported decisions, that it is not uncommon in various parts of India to have long term mortgages. Then we find that the property was subject to a prior mortgage. We are not aware what the term of that mortgage was. But we find that that of that mortgage included another property which became freed from it as a result of the mortgage in suit. This would show that the mortgagee under this mortgage was not putting any pressure on the mortgagor. That conclusion also receives support from the fact that the mortgage money under the present mortgage was more than that under the earlier mortgage but the mortgagee in the present case was satisfied with a smaller security.Again, no complaint is made that the interest charged, which was to be measured by the rent of the property, was in any manner high. All these, to our mind, indicate that the mortgagee had not taken any unfair advantage of his position as the lender, nor that the mortgagor was under any financial embarrassment.We have no evidence in this case of the circumstances existing at the date of the mortgage as to the pecuniary condition of the mortgagor or as to anything else from which we may come to the conclusion that the mortgagee had taken advantage of the difficulties of the mortgagor and imposed a hard bargain on him. It was said that the fact that the property was subject to a prior mortgage at the date of the mortgage in suit indicates the impecunious position of the mortgagor.We are unable to agree with this contention. Every debtor is not necessarily impecunious. The mortgagor certainly derived this advantage from that mortgage that he was able to free from the earlier mortgage the kacheri and he has been in enjoyment of it ever since. That to our mind, indicates that the bargain had been freely made. There was nothing else to which our attention was directed as showing that the bargain was hard. We, therefore, think that the bargain was a reasonable one and the eighty-five years; term of the mortgage should be enforced. We then come to the conclusion that the suit was premature and must fail.
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Divl. Forest Officer Vs. Mool Chand Sarougi Jain | Shah, CJ. 1. The Divisional Forest Officer, Kamrup Division, Assam invited tenders for the purchase of monopoly rights to quarry stone from certain areas, including Narangi Stone Quarry Mahal, for the period July l, 1963 to June 30, 1964. Mool Chand Sarougi-hereinafter called the respondent submitted a tender accompanied by the requisite deposit of Rs. 100/- as earnest money, and offered the rate of Rs. 5.25 per rupee of royalty. The tender submitted by the respondent was accepted and for the minimum quantity of 1,25,800 cft. of stone allotted to the respondent out of the quarry he was to pay Rupees 31,250/-. Intimation of acceptance of the tender was given to the respondent on July 13, 1963. 2. One Baputi Ram, a member of a Scheduled Tribe, appealed against the order of the Divisional Forest Officer accepting the tender, to the Government of Assam and obtained a stay order. After about three months he declined to prosecute the appeal and his appeal was dismissed. The respondent then declined to accept the settlement of the quarry. 3. The Divisional Forest Officer invited fresh tenders. The offers made were not however accepted and tenders were invited again. On January 10, l964 a settlement was made for a minimum quantity of 50,000 cft. for the period from January 25, 1964 to June 30, 1964 for Rs. 10,000/-. 4. The Divisional Forest Officer, thereafter, sought to recover the amount of Rs. 31,250/- for which the tender of the respondent was accepted as arrears of land revenue in the manner provided by S. 75 of the Assam Forest Regulation VII of 1891. The respondent then moved a petition in the High Court of Assam for an order quashing the proceeding for recovery of the amount demanded. The High Court held that the amount claimed was not recoverable under the provisions of the Assam Forest Regulation. VII of 1891 and passed an order quashing the proceeding for recovery and issued a mandamus to the Divisional Forest Officer, Kamrup Division not to proceed with the recovery. The State of Assam has appealed to this Court with certificate granted by the High Court. 5. Section 75 of the Assam Forest Regulation VII of 1891 provides:All money, other than fines, payable to Crown under this Regulation, or under any rule made thereunder or on account of the price of any forest produce, or of expenses incurred in the execution of this Regulation in respect of any forest produce, may, if not paid when due, be recovered under the law for the time being in force as if it were an arrear of land revenue". The amount claimed to be due from the respondent is not on account of the price of any forest produce, or of expenses incurred in the execution for recovery of any forest produce. The amount is also not due in the execution of the Regulation. So far there is common ground. It was claimed, however, that the amount was due under rule 10 promulgated in exercise of power under the Regulation and on that account it was recoverable as an arrear of land revenue Rule 10 provides:"No lease for any fixed period giving the right of removing India rubber, cane, kutcha or cutch, lac, agar, ivory, or any other forest produce shall be given otherwise than in accordance with the general or special orders of the Conservator who is empowered to authorise sales in respect of such leases by auction, tender or any other method at such rates as he may decide in his discretion." The Rule in our judgment does not apply to recovery of the amount alleged to be due for failure to carry out the obligations of the tender by proceedings under the Assam Forest Regulation 1891. It is again difficult to hold that "stone" is forest produce within the meaning of the Act. In any event the Rule does not give rise to any liability to pay a sum of money. It merely imposes a limitation upon the power of the officers of the Forest Department to grant leases in respect of certain forest produce, The lease may not be granted except in accordance with the general or special orders of the Conservator who alone is empowered to authorise a sale in respect of such a lease. It is a rule relating to the exercise of power to grant leases. The High Court was, in our judgment, right in observing that the amount of damages for breach of the terms of the sale notice is not an amount due under the Regulation, or rule 10 made thereunder. | 0[ds]The Rule in our judgment does not apply to recovery of the amount alleged to be due for failure to carry out the obligations of the tender by proceedings under the Assam Forest Regulation 1891. It is again difficult to hold that "stone" is forest produce within the meaning of the Act. In any event the Rule does not give rise to any liability to pay a sum of money. It merely imposes a limitation upon the power of the officers of the Forest Department to grant leases in respect of certain forest produce, The lease may not be granted except in accordance with the general or special orders of the Conservator who alone is empowered to authorise a sale in respect of such a lease. It is a rule relating to the exercise of power to grant leases. The High Court was, in our judgment, right in observing that the amount of damages for breach of the terms of the sale notice is not an amount due under the Regulation, or rule 10 made thereunder. | 0 | 852 | 192 | ### 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:
Shah, CJ. 1. The Divisional Forest Officer, Kamrup Division, Assam invited tenders for the purchase of monopoly rights to quarry stone from certain areas, including Narangi Stone Quarry Mahal, for the period July l, 1963 to June 30, 1964. Mool Chand Sarougi-hereinafter called the respondent submitted a tender accompanied by the requisite deposit of Rs. 100/- as earnest money, and offered the rate of Rs. 5.25 per rupee of royalty. The tender submitted by the respondent was accepted and for the minimum quantity of 1,25,800 cft. of stone allotted to the respondent out of the quarry he was to pay Rupees 31,250/-. Intimation of acceptance of the tender was given to the respondent on July 13, 1963. 2. One Baputi Ram, a member of a Scheduled Tribe, appealed against the order of the Divisional Forest Officer accepting the tender, to the Government of Assam and obtained a stay order. After about three months he declined to prosecute the appeal and his appeal was dismissed. The respondent then declined to accept the settlement of the quarry. 3. The Divisional Forest Officer invited fresh tenders. The offers made were not however accepted and tenders were invited again. On January 10, l964 a settlement was made for a minimum quantity of 50,000 cft. for the period from January 25, 1964 to June 30, 1964 for Rs. 10,000/-. 4. The Divisional Forest Officer, thereafter, sought to recover the amount of Rs. 31,250/- for which the tender of the respondent was accepted as arrears of land revenue in the manner provided by S. 75 of the Assam Forest Regulation VII of 1891. The respondent then moved a petition in the High Court of Assam for an order quashing the proceeding for recovery of the amount demanded. The High Court held that the amount claimed was not recoverable under the provisions of the Assam Forest Regulation. VII of 1891 and passed an order quashing the proceeding for recovery and issued a mandamus to the Divisional Forest Officer, Kamrup Division not to proceed with the recovery. The State of Assam has appealed to this Court with certificate granted by the High Court. 5. Section 75 of the Assam Forest Regulation VII of 1891 provides:All money, other than fines, payable to Crown under this Regulation, or under any rule made thereunder or on account of the price of any forest produce, or of expenses incurred in the execution of this Regulation in respect of any forest produce, may, if not paid when due, be recovered under the law for the time being in force as if it were an arrear of land revenue". The amount claimed to be due from the respondent is not on account of the price of any forest produce, or of expenses incurred in the execution for recovery of any forest produce. The amount is also not due in the execution of the Regulation. So far there is common ground. It was claimed, however, that the amount was due under rule 10 promulgated in exercise of power under the Regulation and on that account it was recoverable as an arrear of land revenue Rule 10 provides:"No lease for any fixed period giving the right of removing India rubber, cane, kutcha or cutch, lac, agar, ivory, or any other forest produce shall be given otherwise than in accordance with the general or special orders of the Conservator who is empowered to authorise sales in respect of such leases by auction, tender or any other method at such rates as he may decide in his discretion." The Rule in our judgment does not apply to recovery of the amount alleged to be due for failure to carry out the obligations of the tender by proceedings under the Assam Forest Regulation 1891. It is again difficult to hold that "stone" is forest produce within the meaning of the Act. In any event the Rule does not give rise to any liability to pay a sum of money. It merely imposes a limitation upon the power of the officers of the Forest Department to grant leases in respect of certain forest produce, The lease may not be granted except in accordance with the general or special orders of the Conservator who alone is empowered to authorise a sale in respect of such a lease. It is a rule relating to the exercise of power to grant leases. The High Court was, in our judgment, right in observing that the amount of damages for breach of the terms of the sale notice is not an amount due under the Regulation, or rule 10 made thereunder.
### Response:
0
### Explanation:
The Rule in our judgment does not apply to recovery of the amount alleged to be due for failure to carry out the obligations of the tender by proceedings under the Assam Forest Regulation 1891. It is again difficult to hold that "stone" is forest produce within the meaning of the Act. In any event the Rule does not give rise to any liability to pay a sum of money. It merely imposes a limitation upon the power of the officers of the Forest Department to grant leases in respect of certain forest produce, The lease may not be granted except in accordance with the general or special orders of the Conservator who alone is empowered to authorise a sale in respect of such a lease. It is a rule relating to the exercise of power to grant leases. The High Court was, in our judgment, right in observing that the amount of damages for breach of the terms of the sale notice is not an amount due under the Regulation, or rule 10 made thereunder.
|
C. BRIGHT Vs. THE DISTRICT COLLECTOR & ORS | SCC OnLine MP 553) examined the provisions of Section 14 of the Act as amended. The Court held that the second proviso to sub-section (1) of Section 14 was inserted in order to ensure that Chief Metropolitan Magistrate or District Magistrate pass the order within a stipulated time. The Bank/secured creditor has no control over the District Magistrate. After filing an application under sub-section (1) of Section 14, the Bank had no authority to compel the Chief Metropolitan Magistrate or District Magistrate to pass orders within reasonable time. The legislature, in order to bind the said authorities, inserted the said proviso. Thus, the basic object and purpose was to fix a time limit for the concerned Magistrate to pass an order and not to give a clean chit to an unscrupulous borrower/guarantor, who had not repaid the debts. 17. Now, coming to the Judgments referred to by Mr. Khan. In A.K. Pandey, the respondent was not provided 96 hours of interval time as contemplated by the relevant rules, before commencing a trial by the Court Martial. This Court held that such proceedings were vitiated as the purpose of the time limit was that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety- six hours. 18. Harshad Govardhan Sondagar was a case where the person in possession claimed tenancy rights in the premises as well as a protected tenancy, being a tenant prior to creation of a mortgage. It was held that the remedy of an aggrieved person against a decision of Chief Metropolitan Magistrate or a District Magistrate lay only before the High Court. However, after the aforesaid judgment was rendered on 3.4.2014, the Act had been amended and sub-section 4A was inserted in Section 17 with effect from 1.9.2016. This provided a right to move an application to the Debts Recovery Tribunal by a person who claimed tenancy or leasehold rights. 19. Dipak Babaria was a case wherein agricultural land was sold by an agriculturist to another person for industrial purposes. Permission was to be granted by the Collector for the same. In these circumstances, it was held that when a statute provides for a thing to be done in a particular manner then it should be done in that manner itself. Such proposition does not arise for consideration in the present case. 20. The Act was enacted to provide a machinery for empowering banks and financial institutions, so that they may have the power to take possession of secured assets and to sell them. The DRT Act was first enacted to streamline the recovery of public dues but the proceedings under the said Act have not given desirous re- sults. Therefore, the Act in question was enacted. This Court in Mardia Chemical, Transcore and Hindon Forge Private Lim- ited has held that the purpose of the Act pertains to the speedy recovery of dues, by banks and financial institutions. The true in- tention of the Legislature is a determining factor herein. Keeping the objective of the Act in mind, the time limit to take action by the District Magistrate has been fixed to impress upon the author- ity to take possession of the secured assets. However, inability to take possession within time limit does not render the District Mag- istrate Functus Officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act. The time limit is to instill a confidence in creditors that the District Magistrate will make an at- tempt to deliver possession as well as to impose a duty on the Dis- trict Magistrate to make an earnest effort to comply with the man- date of the statute to deliver the possession within 30 days and for reasons to be recorded within 60 days. In this light, the remedy under Section 14 of the Act is not rendered redundant if the Dis- trict Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest. 21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors. (2010) 8 SCC 110 held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the rem- edy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, how- ever, borrowers and other aggrieved persons are invoking the ju- risdiction of the High Court under Articles 226 or 227 of the Consti- tution of India without availing the alternative statutory remedy. The Honble High Courts are well aware of the limitations in exer- cising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money. | 0[ds]7. A well settled rule of interpretation of the statutes is that the use of the word shall in a statute, does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding, would be invalid. It is not always correct to say that if the word may has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid(State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 ) and that when a statute uses the word shall, prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully at- tending to the whole scope of the statute (State of U.P. & Ors. v. Babu Ram Upadhya, AIR 1961 SC 751 ). The principle of literal construction of the statute alone in all circumstances without ex- amining the context and scheme of the statute may not serve the purpose of the statute (Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. , (1987) 1 SCC 424 ).8. The question as to whether, a time limit fixed for a public officer to perform a public duty is directory or mandatory has been examined earlier by the Courts as well. A question arose before the Privy Council in respect of irregularities in the preliminary proceedings for constituting a jury panel. The Municipality was expected to revise the list of qualified persons but the jury was drawn from the old list as the Sheriff neglected to revise the same. It was in these circumstances, the decision of the jury drawn from the old list became the subject matter of consideration by the Privy Council. It was thus held that it would cause greater public inconvenience if it were held that neglecting to observe the provisions of the statute made the verdicts of all juries taken from the list ipso facto null and void so that no jury trials could be held until a duly revised list had been prepared(Montreal Street Railway Company v. Normandin, AIR 1917 PC 142).11. In T.V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry (1994) 1 SCC 754 , the time period during which report of the analysis of a sample under Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 was to be given, was held to be directory as there was no time-limit prescribed within which the prosecution had to be instituted. When there was no such limit prescribed then there was no valid reason for holding the period of 45 days as mandatory. Of course, that does not mean that the Public Analyst can ignore the time-limit prescribed under the rules. He must in all cases try to comply with the time-limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and, on that basis, to hold that even prosecution cannot be launched.12. This Court distinguished between failure of an individual to act in a given time frame and the time frame provided to a public authority, for the purposes of determining whether a provision was mandatory or directory, when this Court held that it is a well- settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified (Nasiruddin & Ors. v. Sita Ram Agarwal, (2003) 2 SCC 577 ).17. Now, coming to the Judgments referred to by Mr. Khan. In A.K. Pandey, the respondent was not provided 96 hours of interval time as contemplated by the relevant rules, before commencing a trial by the Court Martial. This Court held that such proceedings were vitiated as the purpose of the time limit was that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety- six hours.20. The Act was enacted to provide a machinery for empowering banks and financial institutions, so that they may have the power to take possession of secured assets and to sell them. The DRT Act was first enacted to streamline the recovery of public dues but the proceedings under the said Act have not given desirous re- sults. Therefore, the Act in question was enacted. This Court in Mardia Chemical, Transcore and Hindon Forge Private Lim- ited has held that the purpose of the Act pertains to the speedy recovery of dues, by banks and financial institutions. The true in- tention of the Legislature is a determining factor herein. Keeping the objective of the Act in mind, the time limit to take action by the District Magistrate has been fixed to impress upon the author- ity to take possession of the secured assets. However, inability to take possession within time limit does not render the District Mag- istrate Functus Officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act. The time limit is to instill a confidence in creditors that the District Magistrate will make an at- tempt to deliver possession as well as to impose a duty on the Dis- trict Magistrate to make an earnest effort to comply with the man- date of the statute to deliver the possession within 30 days and for reasons to be recorded within 60 days. In this light, the remedy under Section 14 of the Act is not rendered redundant if the Dis- trict Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest.21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors. (2010) 8 SCC 110 held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the rem- edy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, how- ever, borrowers and other aggrieved persons are invoking the ju- risdiction of the High Court under Articles 226 or 227 of the Consti- tution of India without availing the alternative statutory remedy. The Honble High Courts are well aware of the limitations in exer- cising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money. | 0 | 3,855 | 1,429 | ### 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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SCC OnLine MP 553) examined the provisions of Section 14 of the Act as amended. The Court held that the second proviso to sub-section (1) of Section 14 was inserted in order to ensure that Chief Metropolitan Magistrate or District Magistrate pass the order within a stipulated time. The Bank/secured creditor has no control over the District Magistrate. After filing an application under sub-section (1) of Section 14, the Bank had no authority to compel the Chief Metropolitan Magistrate or District Magistrate to pass orders within reasonable time. The legislature, in order to bind the said authorities, inserted the said proviso. Thus, the basic object and purpose was to fix a time limit for the concerned Magistrate to pass an order and not to give a clean chit to an unscrupulous borrower/guarantor, who had not repaid the debts. 17. Now, coming to the Judgments referred to by Mr. Khan. In A.K. Pandey, the respondent was not provided 96 hours of interval time as contemplated by the relevant rules, before commencing a trial by the Court Martial. This Court held that such proceedings were vitiated as the purpose of the time limit was that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety- six hours. 18. Harshad Govardhan Sondagar was a case where the person in possession claimed tenancy rights in the premises as well as a protected tenancy, being a tenant prior to creation of a mortgage. It was held that the remedy of an aggrieved person against a decision of Chief Metropolitan Magistrate or a District Magistrate lay only before the High Court. However, after the aforesaid judgment was rendered on 3.4.2014, the Act had been amended and sub-section 4A was inserted in Section 17 with effect from 1.9.2016. This provided a right to move an application to the Debts Recovery Tribunal by a person who claimed tenancy or leasehold rights. 19. Dipak Babaria was a case wherein agricultural land was sold by an agriculturist to another person for industrial purposes. Permission was to be granted by the Collector for the same. In these circumstances, it was held that when a statute provides for a thing to be done in a particular manner then it should be done in that manner itself. Such proposition does not arise for consideration in the present case. 20. The Act was enacted to provide a machinery for empowering banks and financial institutions, so that they may have the power to take possession of secured assets and to sell them. The DRT Act was first enacted to streamline the recovery of public dues but the proceedings under the said Act have not given desirous re- sults. Therefore, the Act in question was enacted. This Court in Mardia Chemical, Transcore and Hindon Forge Private Lim- ited has held that the purpose of the Act pertains to the speedy recovery of dues, by banks and financial institutions. The true in- tention of the Legislature is a determining factor herein. Keeping the objective of the Act in mind, the time limit to take action by the District Magistrate has been fixed to impress upon the author- ity to take possession of the secured assets. However, inability to take possession within time limit does not render the District Mag- istrate Functus Officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act. The time limit is to instill a confidence in creditors that the District Magistrate will make an at- tempt to deliver possession as well as to impose a duty on the Dis- trict Magistrate to make an earnest effort to comply with the man- date of the statute to deliver the possession within 30 days and for reasons to be recorded within 60 days. In this light, the remedy under Section 14 of the Act is not rendered redundant if the Dis- trict Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest. 21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors. (2010) 8 SCC 110 held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the rem- edy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, how- ever, borrowers and other aggrieved persons are invoking the ju- risdiction of the High Court under Articles 226 or 227 of the Consti- tution of India without availing the alternative statutory remedy. The Honble High Courts are well aware of the limitations in exer- cising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money.
### Response:
0
### Explanation:
It was thus held that it would cause greater public inconvenience if it were held that neglecting to observe the provisions of the statute made the verdicts of all juries taken from the list ipso facto null and void so that no jury trials could be held until a duly revised list had been prepared(Montreal Street Railway Company v. Normandin, AIR 1917 PC 142).11. In T.V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry (1994) 1 SCC 754 , the time period during which report of the analysis of a sample under Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 was to be given, was held to be directory as there was no time-limit prescribed within which the prosecution had to be instituted. When there was no such limit prescribed then there was no valid reason for holding the period of 45 days as mandatory. Of course, that does not mean that the Public Analyst can ignore the time-limit prescribed under the rules. He must in all cases try to comply with the time-limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and, on that basis, to hold that even prosecution cannot be launched.12. This Court distinguished between failure of an individual to act in a given time frame and the time frame provided to a public authority, for the purposes of determining whether a provision was mandatory or directory, when this Court held that it is a well- settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified (Nasiruddin & Ors. v. Sita Ram Agarwal, (2003) 2 SCC 577 ).17. Now, coming to the Judgments referred to by Mr. Khan. In A.K. Pandey, the respondent was not provided 96 hours of interval time as contemplated by the relevant rules, before commencing a trial by the Court Martial. This Court held that such proceedings were vitiated as the purpose of the time limit was that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety- six hours.20. The Act was enacted to provide a machinery for empowering banks and financial institutions, so that they may have the power to take possession of secured assets and to sell them. The DRT Act was first enacted to streamline the recovery of public dues but the proceedings under the said Act have not given desirous re- sults. Therefore, the Act in question was enacted. This Court in Mardia Chemical, Transcore and Hindon Forge Private Lim- ited has held that the purpose of the Act pertains to the speedy recovery of dues, by banks and financial institutions. The true in- tention of the Legislature is a determining factor herein. Keeping the objective of the Act in mind, the time limit to take action by the District Magistrate has been fixed to impress upon the author- ity to take possession of the secured assets. However, inability to take possession within time limit does not render the District Mag- istrate Functus Officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act. The time limit is to instill a confidence in creditors that the District Magistrate will make an at- tempt to deliver possession as well as to impose a duty on the Dis- trict Magistrate to make an earnest effort to comply with the man- date of the statute to deliver the possession within 30 days and for reasons to be recorded within 60 days. In this light, the remedy under Section 14 of the Act is not rendered redundant if the Dis- trict Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest.21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors. (2010) 8 SCC 110 held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the rem- edy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, how- ever, borrowers and other aggrieved persons are invoking the ju- risdiction of the High Court under Articles 226 or 227 of the Consti- tution of India without availing the alternative statutory remedy. The Honble High Courts are well aware of the limitations in exer- cising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money.
|
Buxa Dooars Tea Company Ltd. Etc Vs. State Of West Bengal And Others | not be regarded as conclusive in the matter. Again the Hingir-Rampur Coal Co. Ltd. v. State of Orissa ((1961) 2 SCR 537 : AIR 1961 SC 459 ) this Court observed that the method of determining the rate or levy would be relevant in considering the character of the levy. All these cases were referred to in Bombay Tyre International Ltd. ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ) where in the discussion on the point at page 367 this Court said : (SCC p. 483, para 14)Any standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the levy. 11. It is apparent that the standards laid down for measuring the liability under the levy must bear a relationship to the nature of the levy. In the case before us, however, we find that the nexus with the tea estate is lost altogether in the provisions for exemption or reduction of the levy and that throughout the nexus is confined to despatches of tea rather than related to the tea estate. There is nothing to suggest that a particular tea estate produces only one class of tea and when reference is made to a certain class of tea the reference identifies a certain class of tea estates. We may presume that a tea estate produces different classes of tea and not one class of tea only. While there must always be a nexus between the subject of the levy and the measure of the levy that nexus extends into different dimensions. Variations considered appropriate for the purpose of determining the measure must correspond to variations in the subject of the levy. If the measure of levy is to vary with the despatches of different classes of tea must be something in the class of tea concerned which points to a reason located in the particular tea estate or classes of tea estates which are made the subject of the levy. So also if the measure varies with the centres of sale of tea, the variation must relate to a reason to be found in the nature of the tea estate or classes of tea estates. In other words, there must be a reason why one class of tea is treated differently from another class of tea when deciding upon the rate to be applied to different classes of tea and that reason must be found in the nature of the tea estate concerned. Ultimately the benefit of exemption or reduced levy must be related to the need for exempting the tea estate from that levy or relieving it from part of the normal levy. When the provisions before us are examined in their totality, we find no such relationship or nexus between the tea estate and the varied treatment accorded in respect of despatches of different kinds of tea. It seems to us that having regard to all the relevant provisions of the statute, including Section 4(2)(aa) and Section 4(4), in substance the impugned levy is a levy in respect of despatches of tea and not in respect of tea estates. 12. Treating it as a levy on despatches of tea it is evident that the levy must be regarded as constituting a direct and immediate restriction on the flow of trade and commerce in tea throughout the territory of India, and the levy can avoid the injunction declared in Article 301 only it satisfies the provisions of Article 304(b) and the proviso thereto. For bringing the legislation within the saving provisions of Article 304(b) it is necessary that the Bill or amendment should have been introduced or moved in the legislature of the State with the previous sanction of the President. It is not disputed that the amendments to the West Bengal Act made in 1981 and 1982 did not satisfy that requirement. Indeed, it appears that the West Bengal Government had sent an earlier Bill to the President with the object of levying a tax on the income from tea but the Presidential assent was not granted. It appears further that the finance Minister of West Bengal made a statement in the West Bengal legislature on February 27, 1981 stating that he would introduce the rural employment cess on despatches of tea. He referred to a Bill for amending the West Bengal Marketing (Regulation) Act, 1972 having been sent to the President and the President not having signified his consent to the amendment. 13. In our opinion, the impugned provisions brought into the West Bengal Act by the amendments in 1981 and 1982 so far as they purport to relate to tea estates are unconstitutional and void and cannot be given effect to. 14. Another aspect of the matter may be considered, and that relates to legislative competence. If the impugned legislation were to be regarded as levy in respect of tea estates, it would be referable to entry 49 in List II of the Seventh Schedule of the constitution which speaks of "taxes on lands and buildings". But if the legislation is in substance legislation in respect of despatches of tea, legislative authority must be found for it with reference to some other entry. We have not been shown any entry in List II or in the List III of the Seventh Schedule which would be pertinent. It may be noted that Parliament had made a declaration in Section 2 of the Tea Act, 1953 that it was expedient in the public interest that the Union should take under its control the tea industry. Under the Tea Act, Parliament has assumed control of the tea industry including the tea trade and control of tea prices. Under Section 25 of the Act a cess on tea produced in India has also been imposed. It appears to us that the impugned legislation is also void for want of legislative competence as it pertains to a covered filed. | 1[ds]8. There can be no dispute that the rural employment cess is tax. It cannot also be disputed that if the levy of a tax on goods has the direct and immediate effect of impeding the movement of goods throughout the territory of India, there is a violation of Article 301 of the Constitution. If, however, the impact of the levy is indirect or remote, no valid complaint can be made in relation to Article 301. In Atiabari Tea Co. Ltd. v. State of Assam ((1961) 1 SCR 809 : AIR 1961 SC 232 ) Gajendragadkar, J. (as he then was) speaking for the majority in that case held that tax laws would affect trade and commerce and could be violative of the freedom guaranteed by Article 301, provided they directly or immediately affect the freedom of trade and commerce and not indirectly or in a remote manner. This principle was affirmed by this Court in Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan ((1963) 1 SCR 491 : AIR 1961 SC 1406), and again in Firm A. T. B. Mehtab Majid and Company v. State of Madras (1963 Supp 2 SCR 435 : AIR 1963 SC 928 : (1963) 14 STC 355 ). But the declaration in Article 301 that trade, commerce and intercourse throughout the territory of India shall be free is subject to Article 304(b) which provides304. Restrictions on trade, commerce and intercourse among States. - Notwithstanding anything in Article 301 or Article 303, the legislature of a State may by law -(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interestProvided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the legislature of a State without the previous sanction of the PresidentTherefore, there is no violation of Article 301 if the case falls under Article 304(b) and its proviso. In Kalyani Stores v. State of Orissa ((1966) 1 SCR 865 : AIR 1966 SC 1686 ) this Court held that a restriction on the freedom of trade and commerce which is guaranteed by Article 301 cannot be justified unless the procedure provided in Article 304 is followed. That was also the view taken in State of Mysore v. H. Sanjeeviah ((1967) 2 SCR 361 : AIR 1967 SC 1189 ) and Andhra Sugars Ltd. v. State of Andhra Pradesh ((1968) 1 SCR 705 : AIR 1963 SC 599 : 21 STC 212) . In other words, if the legislature of a State enacts a law which imposes such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest and further that the Bill or amendment for the purposes of clause (b) has been introduced or moved in the legislature of a State with the previous sanction of the President, such enactment will not offend the Article 301If the levy imposed a cess in respect of tea estates. It may well be said that even though the free flow of tea is impeded in its movement throughout the territory of India it is in consequence of an indirect or remote effect of the levy and that it cannot be said that Article 301 is contravened. The contention of the petitioners is, however, that it is ostensibly only in respect of tea estates but in fact it is a levy on despatches of tea. If that contention is sound, there can be no doubt that it constitutes a violation of Article 301 unless the legislation is brought within the scope of Article 304(b). To determine whether the levy is in respect of tea estates or is a levy on despatches of tea, the substance of the legislation must be ascertained from the relevant provisions of the statute. It cannot be disputed that the subject of the levy, the nature of which defines the quality of the levy, must not be confused with the measure of liability, that is to say, the quantum of the tax. There is a plenitude of cease law supporting that principle, among the cases being Union of India v. Bombay Tyre International Ltd. ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 )10. But what is the position here ? The statue speaks of a levy "in respect of a tea estate", and it says that the levy will not exceed Rs. 6 on each kilogram of tea on the despatches from such tea estate of tea grown therein. The statute also provides that in calculating the despatches of tea for the purpose of levy of rural employment cess, the despatches for sale made at such tea auction centres as may be recognised by the State Government shall be excluded. And there is a proviso which empowers the State Government to fix different rates on despatches of different classes of tea. There is also Section 4(4) which empowers the State Government to exempt such categories of despatches or such percentage of despatches from the liability to pay the whole or any part of the rural employment cess, or to reduce the rate of the rural employment cess payable thereon under clause (aa) of sub-section (2) on such terms and conditions as it may specify by notification. As from October 1, 1982 the position remained the same except that the first proviso to Section 4(2) (aa) excluding the despatches for sale made at recognised as before. Now, for determining the true nature of the legislation, whether it is a legislation in respect of tea estates, and therefore of land, or in respect of despatches of tea, we must, as we have said, take all the relevant provisions of the legislation into account and ascertain the essential substance of it. It seems to us that although the impugned provisions speak of a levy of cess in respect of tea estates, what is really contemplated is a levy on despatches of tea instead. The entire structure of the levy points to that conclusion. If the levy is regarded as one in respect of tea estates and the measure of the liability is defined in terms of the weight of tea despatched from the tea estate there must be a nexus between the two indicating a relationship between the levy on the tea estate and the criteria for determining the measure of liability. If there is no nexus at all it can conceivably be inferred that the levy is not what it purports to be. The statutory provisions for measuring the liability on account of the levy throws light on the general character of the tax as observed by the Privy Council in Re A Reference under the Government of Ireland Act, 1920 and Section 3 of the Finance Act (Northern Ireland), 1934 ((1936) 2 All ER 1111). In R. R. Engineering Co. v. Zila Parishad, Bareilly ((1980) 3 SCC 330 : (1980) 3 SCR 1 ) this Court observed that the standard on which the tax is levied was a relevant consideration for determining the nature of the tax, although it could not be regarded as conclusive in the matter. Again the Hingir-Rampur Coal Co. Ltd. v. State of Orissa ((1961) 2 SCR 537 : AIR 1961 SC 459 ) this Court observed that the method of determining the rate or levy would be relevant in considering the character of the levy. All these cases were referred to in Bombay Tyre International Ltd. ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ) where in the discussion on the point at page 367 this Court said : (SCC p. 483, para 14)Any standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the levy11. It is apparent that the standards laid down for measuring the liability under the levy must bear a relationship to the nature of the levy. In the case before us, however, we find that the nexus with the tea estate is lost altogether in the provisions for exemption or reduction of the levy and that throughout the nexus is confined to despatches of tea rather than related to the tea estate. There is nothing to suggest that a particular tea estate produces only one class of tea and when reference is made to a certain class of tea the reference identifies a certain class of tea estates. We may presume that a tea estate produces different classes of tea and not one class of tea only. While there must always be a nexus between the subject of the levy and the measure of the levy that nexus extends into different dimensions. Variations considered appropriate for the purpose of determining the measure must correspond to variations in the subject of the levy. If the measure of levy is to vary with the despatches of different classes of tea must be something in the class of tea concerned which points to a reason located in the particular tea estate or classes of tea estates which are made the subject of the levy. So also if the measure varies with the centres of sale of tea, the variation must relate to a reason to be found in the nature of the tea estate or classes of tea estates. In other words, there must be a reason why one class of tea is treated differently from another class of tea when deciding upon the rate to be applied to different classes of tea and that reason must be found in the nature of the tea estate concerned. Ultimately the benefit of exemption or reduced levy must be related to the need for exempting the tea estate from that levy or relieving it from part of the normal levy. When the provisions before us are examined in their totality, we find no such relationship or nexus between the tea estate and the varied treatment accorded in respect of despatches of different kinds of tea. It seems to us that having regard to all the relevant provisions of the statute, including Section 4(2)(aa) and Section 4(4), in substance the impugned levy is a levy in respect of despatches of tea and not in respect of tea estates12. Treating it as a levy on despatches of tea it is evident that the levy must be regarded as constituting a direct and immediate restriction on the flow of trade and commerce in tea throughout the territory of India, and the levy can avoid the injunction declared in Article 301 only it satisfies the provisions of Article 304(b) and the proviso thereto. For bringing the legislation within the saving provisions of Article 304(b) it is necessary that the Bill or amendment should have been introduced or moved in the legislature of the State with the previous sanction of the President. It is not disputed that the amendments to the West Bengal Act made in 1981 and 1982 did not satisfy that requirement. Indeed, it appears that the West Bengal Government had sent an earlier Bill to the President with the object of levying a tax on the income from tea but the Presidential assent was not granted. It appears further that the finance Minister of West Bengal made a statement in the West Bengal legislature on February 27, 1981 stating that he would introduce the rural employment cess on despatches of tea. He referred to a Bill for amending the West Bengal Marketing (Regulation) Act, 1972 having been sent to the President and the President not having signified his consent to the amendment13. In our opinion, the impugned provisions brought into the West Bengal Act by the amendments in 1981 and 1982 so far as they purport to relate to tea estates are unconstitutional and void and cannot be given effect to14. Another aspect of the matter may be considered, and that relates to legislative competence. If the impugned legislation were to be regarded as levy in respect of tea estates, it would be referable to entry 49 in List II of the Seventh Schedule of the constitution which speaks of "taxes on lands and buildings". But if the legislation is in substance legislation in respect of despatches of tea, legislative authority must be found for it with reference to some other entry. We have not been shown any entry in List II or in the List III of the Seventh Schedule which would be pertinent. It may be noted that Parliament had made a declaration in Section 2 of the Tea Act, 1953 that it was expedient in the public interest that the Union should take under its control the tea industry. Under the Tea Act, Parliament has assumed control of the tea industry including the tea trade and control of tea prices. Under Section 25 of the Act a cess on tea produced in India has also been imposed. It appears to us that the impugned legislation is also void for want of legislative competence as it pertains to a covered filed15. We do not consider it necessary to express our opinion on the other points raised between the parties in this case | 1 | 3,615 | 2,446 | ### Instruction:
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not be regarded as conclusive in the matter. Again the Hingir-Rampur Coal Co. Ltd. v. State of Orissa ((1961) 2 SCR 537 : AIR 1961 SC 459 ) this Court observed that the method of determining the rate or levy would be relevant in considering the character of the levy. All these cases were referred to in Bombay Tyre International Ltd. ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ) where in the discussion on the point at page 367 this Court said : (SCC p. 483, para 14)Any standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the levy. 11. It is apparent that the standards laid down for measuring the liability under the levy must bear a relationship to the nature of the levy. In the case before us, however, we find that the nexus with the tea estate is lost altogether in the provisions for exemption or reduction of the levy and that throughout the nexus is confined to despatches of tea rather than related to the tea estate. There is nothing to suggest that a particular tea estate produces only one class of tea and when reference is made to a certain class of tea the reference identifies a certain class of tea estates. We may presume that a tea estate produces different classes of tea and not one class of tea only. While there must always be a nexus between the subject of the levy and the measure of the levy that nexus extends into different dimensions. Variations considered appropriate for the purpose of determining the measure must correspond to variations in the subject of the levy. If the measure of levy is to vary with the despatches of different classes of tea must be something in the class of tea concerned which points to a reason located in the particular tea estate or classes of tea estates which are made the subject of the levy. So also if the measure varies with the centres of sale of tea, the variation must relate to a reason to be found in the nature of the tea estate or classes of tea estates. In other words, there must be a reason why one class of tea is treated differently from another class of tea when deciding upon the rate to be applied to different classes of tea and that reason must be found in the nature of the tea estate concerned. Ultimately the benefit of exemption or reduced levy must be related to the need for exempting the tea estate from that levy or relieving it from part of the normal levy. When the provisions before us are examined in their totality, we find no such relationship or nexus between the tea estate and the varied treatment accorded in respect of despatches of different kinds of tea. It seems to us that having regard to all the relevant provisions of the statute, including Section 4(2)(aa) and Section 4(4), in substance the impugned levy is a levy in respect of despatches of tea and not in respect of tea estates. 12. Treating it as a levy on despatches of tea it is evident that the levy must be regarded as constituting a direct and immediate restriction on the flow of trade and commerce in tea throughout the territory of India, and the levy can avoid the injunction declared in Article 301 only it satisfies the provisions of Article 304(b) and the proviso thereto. For bringing the legislation within the saving provisions of Article 304(b) it is necessary that the Bill or amendment should have been introduced or moved in the legislature of the State with the previous sanction of the President. It is not disputed that the amendments to the West Bengal Act made in 1981 and 1982 did not satisfy that requirement. Indeed, it appears that the West Bengal Government had sent an earlier Bill to the President with the object of levying a tax on the income from tea but the Presidential assent was not granted. It appears further that the finance Minister of West Bengal made a statement in the West Bengal legislature on February 27, 1981 stating that he would introduce the rural employment cess on despatches of tea. He referred to a Bill for amending the West Bengal Marketing (Regulation) Act, 1972 having been sent to the President and the President not having signified his consent to the amendment. 13. In our opinion, the impugned provisions brought into the West Bengal Act by the amendments in 1981 and 1982 so far as they purport to relate to tea estates are unconstitutional and void and cannot be given effect to. 14. Another aspect of the matter may be considered, and that relates to legislative competence. If the impugned legislation were to be regarded as levy in respect of tea estates, it would be referable to entry 49 in List II of the Seventh Schedule of the constitution which speaks of "taxes on lands and buildings". But if the legislation is in substance legislation in respect of despatches of tea, legislative authority must be found for it with reference to some other entry. We have not been shown any entry in List II or in the List III of the Seventh Schedule which would be pertinent. It may be noted that Parliament had made a declaration in Section 2 of the Tea Act, 1953 that it was expedient in the public interest that the Union should take under its control the tea industry. Under the Tea Act, Parliament has assumed control of the tea industry including the tea trade and control of tea prices. Under Section 25 of the Act a cess on tea produced in India has also been imposed. It appears to us that the impugned legislation is also void for want of legislative competence as it pertains to a covered filed.
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Orissa ((1961) 2 SCR 537 : AIR 1961 SC 459 ) this Court observed that the method of determining the rate or levy would be relevant in considering the character of the levy. All these cases were referred to in Bombay Tyre International Ltd. ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ) where in the discussion on the point at page 367 this Court said : (SCC p. 483, para 14)Any standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the levy11. It is apparent that the standards laid down for measuring the liability under the levy must bear a relationship to the nature of the levy. In the case before us, however, we find that the nexus with the tea estate is lost altogether in the provisions for exemption or reduction of the levy and that throughout the nexus is confined to despatches of tea rather than related to the tea estate. There is nothing to suggest that a particular tea estate produces only one class of tea and when reference is made to a certain class of tea the reference identifies a certain class of tea estates. We may presume that a tea estate produces different classes of tea and not one class of tea only. While there must always be a nexus between the subject of the levy and the measure of the levy that nexus extends into different dimensions. Variations considered appropriate for the purpose of determining the measure must correspond to variations in the subject of the levy. If the measure of levy is to vary with the despatches of different classes of tea must be something in the class of tea concerned which points to a reason located in the particular tea estate or classes of tea estates which are made the subject of the levy. So also if the measure varies with the centres of sale of tea, the variation must relate to a reason to be found in the nature of the tea estate or classes of tea estates. In other words, there must be a reason why one class of tea is treated differently from another class of tea when deciding upon the rate to be applied to different classes of tea and that reason must be found in the nature of the tea estate concerned. Ultimately the benefit of exemption or reduced levy must be related to the need for exempting the tea estate from that levy or relieving it from part of the normal levy. When the provisions before us are examined in their totality, we find no such relationship or nexus between the tea estate and the varied treatment accorded in respect of despatches of different kinds of tea. It seems to us that having regard to all the relevant provisions of the statute, including Section 4(2)(aa) and Section 4(4), in substance the impugned levy is a levy in respect of despatches of tea and not in respect of tea estates12. Treating it as a levy on despatches of tea it is evident that the levy must be regarded as constituting a direct and immediate restriction on the flow of trade and commerce in tea throughout the territory of India, and the levy can avoid the injunction declared in Article 301 only it satisfies the provisions of Article 304(b) and the proviso thereto. For bringing the legislation within the saving provisions of Article 304(b) it is necessary that the Bill or amendment should have been introduced or moved in the legislature of the State with the previous sanction of the President. It is not disputed that the amendments to the West Bengal Act made in 1981 and 1982 did not satisfy that requirement. Indeed, it appears that the West Bengal Government had sent an earlier Bill to the President with the object of levying a tax on the income from tea but the Presidential assent was not granted. It appears further that the finance Minister of West Bengal made a statement in the West Bengal legislature on February 27, 1981 stating that he would introduce the rural employment cess on despatches of tea. He referred to a Bill for amending the West Bengal Marketing (Regulation) Act, 1972 having been sent to the President and the President not having signified his consent to the amendment13. In our opinion, the impugned provisions brought into the West Bengal Act by the amendments in 1981 and 1982 so far as they purport to relate to tea estates are unconstitutional and void and cannot be given effect to14. Another aspect of the matter may be considered, and that relates to legislative competence. If the impugned legislation were to be regarded as levy in respect of tea estates, it would be referable to entry 49 in List II of the Seventh Schedule of the constitution which speaks of "taxes on lands and buildings". But if the legislation is in substance legislation in respect of despatches of tea, legislative authority must be found for it with reference to some other entry. We have not been shown any entry in List II or in the List III of the Seventh Schedule which would be pertinent. It may be noted that Parliament had made a declaration in Section 2 of the Tea Act, 1953 that it was expedient in the public interest that the Union should take under its control the tea industry. Under the Tea Act, Parliament has assumed control of the tea industry including the tea trade and control of tea prices. Under Section 25 of the Act a cess on tea produced in India has also been imposed. It appears to us that the impugned legislation is also void for want of legislative competence as it pertains to a covered filed15. We do not consider it necessary to express our opinion on the other points raised between the parties in this case
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State Of Kerala Vs. M/S Palakkad Heritage Hotels | Resorts (supra) has been affirmed by this Court by dismissal of SLP(C) No.18392 of 2012 on 20th June, 2012 in the following terms:“ORDERHeard Mr. Ramesh Babu M.R., learned counsel for the petitioners.In the facts and circumstances of the case, we are not inclined to interfere with the impugned judgment.The Special Leave Petition is, accordingly, dismissed.Question of law is kept open.”Even the review petition filed by the State against the said decision, being Review Petition(C) No.1409 of 2012, came to be dismissed on 14th August, 2012.10. What is relevant to note is that, in the case of Kallada Hotels & Resorts (supra), the Division Bench of the High Court had adverted to the decision of this Court in the case of State of Kerala & Anr. v. B.6 Holidays Resorts Pvt. Ltd. (2010 (5) SCC 186 ), wherein it has been held that an application for grant of liquor licence has to be considered with reference to the rules/law prevailing or in force on the date of consideration of application by the Excise Authorities and not with reference to the law as on the date of the application. After noticing the decision of this Court, the Division Bench on the facts of the case before it allowed the Writ Appeal. It will be useful to advert to the relevant portion of the Division Bench decision:“4. ………………………………………………………Going by the judgment of the Hon’ble Supreme Court the law applicable is the law that is in force when the Excise authorities at various levels consider an application for FL3 licence, as is evidenced by the records produced in this case, the application submitted before the Excise Commissioner goes for enquiry to the Deputy Commissioner who make his recommendations which in turn is endorsed by the Joint Commissioner of Excise. Thereafter the application goes to Government and with the permission of the Government the Excise Commissioner issues the licence. In this case the initial denial of licence to the appellant was on account of the mistake about the distance from the temple which was wrongly reported as within the prohibited distance. It is seen that within one month of issuance of the first report namely Ext. P6 dated 25/08/2011 the Joint Excise Commissioner corrected the mistake on 22/09/2011 vide Ext. P9 recommending appellant’s case for issuance of licence. If Ext. P6 was issued with correct distance without committing a mistake and at least if the correct report namely Ext. P9 dated 22/09/2011 was acted upon in time the appellant would have got licence even before the new policy was introduced. Respondent has not brought to the notice of this Court any other objection against entitlement of the appellant for licence. We feel appellant cannot be declined licence on account of the mistake committed by the Excise authorities in Ext. P6 report. In any case since by 22/09/2011, correct report was submitted vide Ext. P9 we feel the amended rule which came into force on 09/12/2011 cannot be applied to appellant. So much so, we hold that appellant is entitled to have their application finally considered and disposed of by the Government and Excise Commissioner with reference to Rule 13 (3) as it stood prior to the amendment introduced to it with effect from 09/12/2011. Accordingly the Writ Appeal is allowed vacating the observation of the learned Single Judge in this regard and with a direction to the respondent to consider and pass orders on appellant’s application at the earliest.”11. In our view, the question as to what date should be reckoned as the date of consideration of licence has not been squarely dealt with in this decision. Indubitably, the processing of the application for grant of licence commences from the date of application. The final decision on the proposal is required to be taken by the State Government. The date on which a formal, final decision is taken by the competent authority, alone, would be the relevant date. The recommendation made by the subordinate authority, even if significant for taking a formal decision by the competent authority, will be of no avail.12. In the present case, the learned Single Judge has assumed the date on which recommendation was made by the Excise Commissioner i.e. 28th March, 2012, as the relevant date. That assumption is untenable. For, that was not the date on which the final decision was taken by the competent authority. Whereas, before a final decision could be taken by the competent authority on the application submitted by the Respondent, the Foreign Liquor Rules were amended on 18th April, 2012. The application submitted by the Respondent for grant of licence, unquestionably, must be treated as pending and under consideration on this date.13. A priori, no fault can be found with the State Authority for calling upon the Excise Commissioner to examine the proposal and submit his fresh recommendation keeping in mind the amended provisions of the Foreign Liquor Rules. In other words, the application for grant of FL-11 licence submitted by the Respondent was required to be considered by the competent authority keeping in mind the amended provisions which came into force w.e.f. 18th April, 2012. That is precisely what has been done by the Excise Commissioner, as can be discerned from his speaking order dated 5th June, 2012, for invoking the restriction of distance of 200 metres from the objectionable site.14. Since the learned Single Judge of the High Court proceeded to decide the writ petition filed by the Respondent merely by referring to the pronouncement of the Division Bench of the same High Court in the case of Kallada Hotels and Resorts (supra), coupled with the fact that the Respondent had asked for a wider relief to declare the amendment of 18th April, 2012 as void to the extent it has introduced the restriction of distance of 200 meters from objectionable institutions for getting FL-11 licence, we deem it appropriate to relegate the parties before the learned Single Judge to decide the writ petition afresh, keeping in mind the settled legal position. | 1[ds]7. Since the said relied upon decision in M Pcase has been affirmed by this Court, even this appeal must follow the same suit. However, the said SLP has been disposed of by this court on the basis of concession made by the counsel for the parties - that it had become infructuous in view of the judgment of this Court in the case of The Kerala Bar Hotels Association & Anr. V. State of Kerala & Ors (AIR 2016 SC 163 ).8. On a bare perusal of the decision in the Kerala Bar Hotels Association (supra), it is seen that the question examined by this Court was whether the policy to ban the consumption of alcohol in public or exception carved out to the policy in favour of Five Star Hotels violates the rights of the Hotels of Four Star and below classification under Articles 14 and 19. The other decision considered by the High Court for allowing the writ petition filed by the Respondent is the case of Kallada Hotels & Resorts (supra). The correctness of the decision of the Division Bench of the High Court was not in issue before this Court in the case of Kerala Bar Hotels Association (supra).What is relevant to note is that, in the case of Kallada Hotels & Resorts (supra), the Division Bench of the High Court had adverted to the decision of this Court in the case of State of Kerala & Anr. v. B.6 Holidays Resorts Pvt. Ltd. (2010 (5) SCC 186 ), wherein it has been held that an application for grant of liquor licence has to be considered with reference to the rules/law prevailing or in force on the date of consideration of application by the Excise Authorities and not with reference to the law as on the date of the application. After noticing the decision of this Court, the Division Bench on the facts of the case before it allowed the WritIn our view, the question as to whatdate should be reckoned as the date of consideration oflicence has not been squarely dealt with in this decision. Indubitably, the processing of the application for grant of licence commences from the date of application. The final decision on the proposal is required to be taken by the State Government. The date on which a formal, final decision is taken by the competent authority, alone, would be the relevant date. The recommendation made by the subordinate authority, even if significant for taking a formal decision by the competent authority, will be of no avail.12. In the present case, the learned Single Judge has assumed the date on which recommendation was made by the Excise Commissioner i.e. 28th March, 2012, as the relevant date. That assumption is untenable. For, that was not the date on which the final decision was taken by the competent authority. Whereas, before a final decision could be taken by the competent authority on the application submitted by the Respondent, the Foreign Liquor Rules were amended on 18th April, 2012. The application submitted by the Respondent for grant of licence, unquestionably, must be treated as pending and under consideration on this date.13. A priori, no fault can be found with the State Authority for calling upon the Excise Commissioner to examine the proposal and submit his fresh recommendation keeping in mind the amended provisions of the Foreign Liquor Rules. In other words, the application for grant of FL-11 licence submitted by the Respondent was required to be considered by the competent authority keeping in mind the amended provisions which came into force w.e.f. 18th April, 2012. That is precisely what has been done by the Excise Commissioner, as can be discerned from his speaking order dated 5th June, 2012, for invoking the restriction of distance of 200 metres from the objectionable site.14. Since the learned Single Judge of the High Court proceeded to decide the writ petition filed by the Respondent merely by referring to the pronouncement of the Division Bench of the same High Court in the case of Kallada Hotels and Resorts (supra), coupled with the fact that the Respondent had asked for a wider relief to declare the amendment of 18th April, 2012 as void to the extent it has introduced the restriction of distance of 200 meters from objectionable institutions for getting FL-11 licence, we deem it appropriate to relegate the parties before the learned Single Judge to decide the writ petition afresh, keeping in mind the settled legal position. | 1 | 3,204 | 827 | ### 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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Resorts (supra) has been affirmed by this Court by dismissal of SLP(C) No.18392 of 2012 on 20th June, 2012 in the following terms:“ORDERHeard Mr. Ramesh Babu M.R., learned counsel for the petitioners.In the facts and circumstances of the case, we are not inclined to interfere with the impugned judgment.The Special Leave Petition is, accordingly, dismissed.Question of law is kept open.”Even the review petition filed by the State against the said decision, being Review Petition(C) No.1409 of 2012, came to be dismissed on 14th August, 2012.10. What is relevant to note is that, in the case of Kallada Hotels & Resorts (supra), the Division Bench of the High Court had adverted to the decision of this Court in the case of State of Kerala & Anr. v. B.6 Holidays Resorts Pvt. Ltd. (2010 (5) SCC 186 ), wherein it has been held that an application for grant of liquor licence has to be considered with reference to the rules/law prevailing or in force on the date of consideration of application by the Excise Authorities and not with reference to the law as on the date of the application. After noticing the decision of this Court, the Division Bench on the facts of the case before it allowed the Writ Appeal. It will be useful to advert to the relevant portion of the Division Bench decision:“4. ………………………………………………………Going by the judgment of the Hon’ble Supreme Court the law applicable is the law that is in force when the Excise authorities at various levels consider an application for FL3 licence, as is evidenced by the records produced in this case, the application submitted before the Excise Commissioner goes for enquiry to the Deputy Commissioner who make his recommendations which in turn is endorsed by the Joint Commissioner of Excise. Thereafter the application goes to Government and with the permission of the Government the Excise Commissioner issues the licence. In this case the initial denial of licence to the appellant was on account of the mistake about the distance from the temple which was wrongly reported as within the prohibited distance. It is seen that within one month of issuance of the first report namely Ext. P6 dated 25/08/2011 the Joint Excise Commissioner corrected the mistake on 22/09/2011 vide Ext. P9 recommending appellant’s case for issuance of licence. If Ext. P6 was issued with correct distance without committing a mistake and at least if the correct report namely Ext. P9 dated 22/09/2011 was acted upon in time the appellant would have got licence even before the new policy was introduced. Respondent has not brought to the notice of this Court any other objection against entitlement of the appellant for licence. We feel appellant cannot be declined licence on account of the mistake committed by the Excise authorities in Ext. P6 report. In any case since by 22/09/2011, correct report was submitted vide Ext. P9 we feel the amended rule which came into force on 09/12/2011 cannot be applied to appellant. So much so, we hold that appellant is entitled to have their application finally considered and disposed of by the Government and Excise Commissioner with reference to Rule 13 (3) as it stood prior to the amendment introduced to it with effect from 09/12/2011. Accordingly the Writ Appeal is allowed vacating the observation of the learned Single Judge in this regard and with a direction to the respondent to consider and pass orders on appellant’s application at the earliest.”11. In our view, the question as to what date should be reckoned as the date of consideration of licence has not been squarely dealt with in this decision. Indubitably, the processing of the application for grant of licence commences from the date of application. The final decision on the proposal is required to be taken by the State Government. The date on which a formal, final decision is taken by the competent authority, alone, would be the relevant date. The recommendation made by the subordinate authority, even if significant for taking a formal decision by the competent authority, will be of no avail.12. In the present case, the learned Single Judge has assumed the date on which recommendation was made by the Excise Commissioner i.e. 28th March, 2012, as the relevant date. That assumption is untenable. For, that was not the date on which the final decision was taken by the competent authority. Whereas, before a final decision could be taken by the competent authority on the application submitted by the Respondent, the Foreign Liquor Rules were amended on 18th April, 2012. The application submitted by the Respondent for grant of licence, unquestionably, must be treated as pending and under consideration on this date.13. A priori, no fault can be found with the State Authority for calling upon the Excise Commissioner to examine the proposal and submit his fresh recommendation keeping in mind the amended provisions of the Foreign Liquor Rules. In other words, the application for grant of FL-11 licence submitted by the Respondent was required to be considered by the competent authority keeping in mind the amended provisions which came into force w.e.f. 18th April, 2012. That is precisely what has been done by the Excise Commissioner, as can be discerned from his speaking order dated 5th June, 2012, for invoking the restriction of distance of 200 metres from the objectionable site.14. Since the learned Single Judge of the High Court proceeded to decide the writ petition filed by the Respondent merely by referring to the pronouncement of the Division Bench of the same High Court in the case of Kallada Hotels and Resorts (supra), coupled with the fact that the Respondent had asked for a wider relief to declare the amendment of 18th April, 2012 as void to the extent it has introduced the restriction of distance of 200 meters from objectionable institutions for getting FL-11 licence, we deem it appropriate to relegate the parties before the learned Single Judge to decide the writ petition afresh, keeping in mind the settled legal position.
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### Explanation:
7. Since the said relied upon decision in M Pcase has been affirmed by this Court, even this appeal must follow the same suit. However, the said SLP has been disposed of by this court on the basis of concession made by the counsel for the parties - that it had become infructuous in view of the judgment of this Court in the case of The Kerala Bar Hotels Association & Anr. V. State of Kerala & Ors (AIR 2016 SC 163 ).8. On a bare perusal of the decision in the Kerala Bar Hotels Association (supra), it is seen that the question examined by this Court was whether the policy to ban the consumption of alcohol in public or exception carved out to the policy in favour of Five Star Hotels violates the rights of the Hotels of Four Star and below classification under Articles 14 and 19. The other decision considered by the High Court for allowing the writ petition filed by the Respondent is the case of Kallada Hotels & Resorts (supra). The correctness of the decision of the Division Bench of the High Court was not in issue before this Court in the case of Kerala Bar Hotels Association (supra).What is relevant to note is that, in the case of Kallada Hotels & Resorts (supra), the Division Bench of the High Court had adverted to the decision of this Court in the case of State of Kerala & Anr. v. B.6 Holidays Resorts Pvt. Ltd. (2010 (5) SCC 186 ), wherein it has been held that an application for grant of liquor licence has to be considered with reference to the rules/law prevailing or in force on the date of consideration of application by the Excise Authorities and not with reference to the law as on the date of the application. After noticing the decision of this Court, the Division Bench on the facts of the case before it allowed the WritIn our view, the question as to whatdate should be reckoned as the date of consideration oflicence has not been squarely dealt with in this decision. Indubitably, the processing of the application for grant of licence commences from the date of application. The final decision on the proposal is required to be taken by the State Government. The date on which a formal, final decision is taken by the competent authority, alone, would be the relevant date. The recommendation made by the subordinate authority, even if significant for taking a formal decision by the competent authority, will be of no avail.12. In the present case, the learned Single Judge has assumed the date on which recommendation was made by the Excise Commissioner i.e. 28th March, 2012, as the relevant date. That assumption is untenable. For, that was not the date on which the final decision was taken by the competent authority. Whereas, before a final decision could be taken by the competent authority on the application submitted by the Respondent, the Foreign Liquor Rules were amended on 18th April, 2012. The application submitted by the Respondent for grant of licence, unquestionably, must be treated as pending and under consideration on this date.13. A priori, no fault can be found with the State Authority for calling upon the Excise Commissioner to examine the proposal and submit his fresh recommendation keeping in mind the amended provisions of the Foreign Liquor Rules. In other words, the application for grant of FL-11 licence submitted by the Respondent was required to be considered by the competent authority keeping in mind the amended provisions which came into force w.e.f. 18th April, 2012. That is precisely what has been done by the Excise Commissioner, as can be discerned from his speaking order dated 5th June, 2012, for invoking the restriction of distance of 200 metres from the objectionable site.14. Since the learned Single Judge of the High Court proceeded to decide the writ petition filed by the Respondent merely by referring to the pronouncement of the Division Bench of the same High Court in the case of Kallada Hotels and Resorts (supra), coupled with the fact that the Respondent had asked for a wider relief to declare the amendment of 18th April, 2012 as void to the extent it has introduced the restriction of distance of 200 meters from objectionable institutions for getting FL-11 licence, we deem it appropriate to relegate the parties before the learned Single Judge to decide the writ petition afresh, keeping in mind the settled legal position.
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Molar Mal Vs. Ms. Kay Iron Works (P) Ltd | building which is sufficient for his personal occupation...... 14. Based on the above-cited two judgments of the High Court, it is contended that the landlord in the instant case is seeking eviction of a part of the premises owned by it which is leased to the present appellant. Eviction of the three other tenants referred to herein above was from the premises which are parts of the same premises, therefore, in view of the above judgment the bar under the proviso is not applicable. We find it difficult to accept this argument of the landlord also. From the language of the proviso we do not find any support for this argument of the appellant or to the conclusions arrived at by the High Court in the above-referred judgments. The proviso does not make any such distinction between a landlord seeking possession of the premises held by more than one tenant occupying the same building or the tenants occupying different independent buildings under the same landlord. As we have observed, the object of the proviso like any other provisions of the Act, is to further restrict the right of the landlord to seek eviction, if that be so, we do not find any justification in reading into the proviso something as conferring a larger right on the landlord to evict more than one tenant if those tenants are occupying different parts of the same premises. Therefore, we are of the opinion that the view expressed by the High Court in the above referred case does not lay down the correct law. Consequently, the argument of the landlord based on the said judgment is also rejected. 15. It is next contended on behalf of the landlord that the decisions cited above have stood the test of time since 1978 onwards, if not earlier, because of which the law is so understood in that part of the country, therefore, we should not interfere with the ratio laid down by the High Court of Punjab & Haryana in those cases so as not to create uncertainty in judicial thinking. We are unable to accept this argument advanced on behalf of the landlord. When we find that the interpretation of the proviso by the High Court is wholly contrary to the object of the Statute, merely because it had remained to be the interpretation of the High Court for a considerable length of time, the same cannot be permitted to continue to be so when it is erroneous and it is so brought to our notice. We will be failing in our duty if we do not declare an erroneous interpretation of law by the High Court to be so, solely on the ground that it has stood the test of time. Since, in our opinion, in regard to the interpretation of the above proviso, no two views are possible, we are constrained to hold that the law declared by the Punjab & Haryana High Court with reference to the proviso is not the correct interpretation and hold that the said judgment is no more a good law. On behalf of the landlord, another argument based on equity was addressed before us giving various examples of the hardship that could be caused to the landlords by the interpretation we have now given to the said proviso. We do not find that the proviso, as interpreted by us, may cause some hardship to the landlords in some cases but that is the intention of the Legislature which the courts have to take to its logical end so long as it remains in the Statute book. Merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. We may notice at this stage that constitutional validity of the proviso is not in challenge before us, therefore, we will have to proceed on the footing that the proviso, as it stands, is intra vires and interpret the same as such. 16. This leaves us to consider the last argument of the landlord that the applicability of this proviso being a mixed question of law and fact and there being no issues before the courts below, the same cannot be applied in abstract. We see force in this contention before refusing eviction based on the ground of the bar imposed by the proviso. The Court will have to come to the conclusion that the premisesland eviction whereof has been obtained by the landlord, belong to the same class of building or tenanted land. This finding of the Court will be dependent upon the facts which are not available on records of this case. The absence of this evidence will cause prejudice to the landlord if the said question is to be decided in these appeals. Though in the earlier part of this judgment, we have held that the parties in this case have pleaded the facts necessary for invoking the proviso, still since no issue has been framed on this point, the parties have not led evidence in regard to the nature of the buildingland. Therefore, we agree with the argument of the landlord that in order to apply the proviso, certain factual matrix has to be established absence of which, in appropriate cases, might necessitate a remand to the trial court. On the peculiar facts of this case and taking into consideration the fact that this litigation has been going on since 1979 and there has already been one remand from the High Court to the appellate authority, we find it just and proper that we frame the following issue in regard to this point and remit the case to the trial court for the purpose of recording evidence and its decision :- Does the respondent prove that the applicant has obtained possession of other residential building or rented land of the same class under the provisions of Clause (b) of Section 13(3) of the Act so as to disentitle it to obtain possession of the petition scheduled premises ? | 1[ds]7. We are not inclined to accept the first two points raised on behalf of the appellant before us. It is true in the original eviction petition all the material particulars of the requirement of the landlord were not mentioned in detail, but then in the rejoinder application all the necessary particulars are given by the landlord, notice of which the appellant had and the original authority had struck a proper issue on this question and parties understood each others case and led evidence on this issue, though Rule 4 of the Rules does require the landlord to give material particulars, this Court has held with reference to the same rule in the case of Ms. Rubber House v. Ms. Excelsior Needle Industries Pvt. Ltd., 1989(2) SCC 413 : 1989(2) RCR 530 (SC) that the said rule is not mandatory and is only directory. Therefore, the fact that the landlord did not give all the material particulars of his requirement in the first instance cannot be made a ground for rejection of the application. Similarly, we are of the opinion, on the facts and circumstances of this case, the argument of the tenant that the High Court exceeded in its jurisdiction by interfering on a finding of fact arrived at by the Appellate Authority is also to be rejectedIn the instant case, we are not convinced that the High Court has exceeded in its jurisdiction while allowing the revision of the landlord on this count. Therefore, this question urged on behalf of the appellant is also rejected8. This leaves us to consider the third point raised on behalf of the appellant10. Based on this proviso and relying upon the fact that before the eviction was ordered in this case, the landlord had obtained possession of three other rented lands through eviction petitions filed under Section 13(3)(b) of the Act, it is contended, by virtue of the above proviso, that the landlord is statutorily prevented from seeking eviction of the appellant from the tenanted land. Opposing this contention, the landlord raised a preliminary object that this objection was not specifically raised before the courts below. Therefore, the11. We will first deal with the above objection of the landlord in regard to permitting thes to raise this question before us. It is true that in the written statement originally filed, the tenant did not raise this specific contentionIt is true that in spite of these pleadings, may be because of the fact that the tenant did not specifically invoke the proviso to Section 13(3)(b), no issue was raised by the Rent Controller. Hence, the trial court did not advert to this question. Before the appellate authority, however, the tenant raised this specific objection which came to be rejected on the ground that these evictions were obtained after filing of the instant eviction petition, consequently, the proviso in question did not apply to the facts of the caseIn this background, we are convinced that the tenant did not raise this question before the courts below which ought to have been considered by the courts below. Therefore, we deem it appropriate that the tenant be permitted to raise this questionNow the question is whether the bar under the proviso is applicable only to the filing of an application or is it a bar on the right of the landlord. If the interpretation suggested by the landlord is accepted then the bar will be on the application by the landlord and not on his right to evict. This, in our opinion, will not be the correct interpretation of the proviso. A careful perusal of the various provisos found inn (3) of Section 13 of the Act clearly shows that the Legislature intended to further restrict the right of a landlord to seek eviction under the clauses mentioned in thatn apart from the restrictions imposed in Section 13 of the Act. For example, if the landlord is seeking eviction of a tenant on the ground that the same is required for the use of his son then, in view of the proviso applicable to that, he can seek eviction of the premises only once. Similarly, if the landlord is seeking eviction for his own occupation under Section 13(3)(b) of the Act then by virtue of the proviso applicable to that, the landlord can seek such eviction only once in regard to the premises of the same nature. Therefore, in our opinion, the bar imposed by the proviso is in fact a bar on the right of the landlord to seek actual eviction and not confined to the filing of the application for evictionWe agree with this contention of the landlord that normally the courts will have to follow the rule of literal construction which rule enjoins the court to take the words as used by the Legislature and to give it the meaning which naturally implies. But, there is an exception to this rule. That exception comes into play when application of literal construction of the words in the Statute leads to absurdity, inconsistency or when it is shown that the legal context in which the words are used or by reading the Statute as a whole, it requires a different meaning. In our opinion, if the expression entitled to apply again is given its literal meaning, it would defeat the very object for which the Legislature has incorporated that proviso in the Act inasmuch as the object of that proviso can be defeated by a landlord who has more than one tenanted premises by filing multiple applications simultaneously for eviction and thereafter obtain possession of all those premises without the bar of the proviso being applicable to him. We are of the opinion that this could not have been the purpose for which the proviso is included in the Act. If such an interpretation is given then the various provisos found in clause (3) of Section 13 would become otiose and the very object of the enactment would be defeated. Any such interpretation, in our opinion would lead to absurdity. Therefore, we have no hesitation in interpreting the proviso to mean that the restriction contemplated the proviso to mean that the restriction contemplated under that proviso extends even up to the stage when the court or the tribunal is considering the case of the landlord for actual eviction and is not confined to the stage of filing of eviction petition onlyd two judgments of the High Court, it is contended that the landlord in the instant case is seeking eviction of a part of the premises owned by it which is leased to the present appellant. Eviction of the three other tenants referred to herein above was from the premises which are parts of the same premises, therefore, in view of the above judgment the bar under the proviso is not applicable. We find it difficult to accept this argument of the landlord also. From the language of the proviso we do not find any support for this argument of the appellant or to the conclusions arrived at by the High Court in thed judgments. The proviso does not make any such distinction between a landlord seeking possession of the premises held by more than one tenant occupying the same building or the tenants occupying different independent buildings under the same landlord. As we have observed, the object of the proviso like any other provisions of the Act, is to further restrict the right of the landlord to seek eviction, if that be so, we do not find any justification in reading into the proviso something as conferring a larger right on the landlord to evict more than one tenant if those tenants are occupying different parts of the same premises. Therefore, we are of the opinion that the view expressed by the High Court in the above referred case does not lay down the correct law. Consequently, the argument of the landlord based on the said judgment is also rejected15. It is next contended on behalf of the landlord that the decisions cited above have stood the test of time since 1978 onwards, if not earlier, because of which the law is so understood in that part of the country, therefore, we should not interfere with the ratio laid down by the High Court of Punjab & Haryana in those cases so as not to create uncertainty in judicial thinking. We are unable to accept this argument advanced on behalf of the landlord. When we find that the interpretation of the proviso by the High Court is wholly contrary to the object of the Statute, merely because it had remained to be the interpretation of the High Court for a considerable length of time, the same cannot be permitted to continue to be so when it is erroneous and it is so brought to our notice. We will be failing in our duty if we do not declare an erroneous interpretation of law by the High Court to be so, solely on the ground that it has stood the test of time. Since, in our opinion, in regard to the interpretation of the above proviso, no two views are possible, we are constrained to hold that the law declared by the Punjab & Haryana High Court with reference to the proviso is not the correct interpretation and hold that the said judgment is no more a good law. On behalf of the landlord, another argument based on equity was addressed before us giving various examples of the hardship that could be caused to the landlords by the interpretation we have now given to the said proviso. We do not find that the proviso, as interpreted by us, may cause some hardship to the landlords in some cases but that is the intention of the Legislature which the courts have to take to its logical end so long as it remains in the Statute book. Merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. We may notice at this stage that constitutional validity of the proviso is not in challenge before us, therefore, we will have to proceed on the footing that the proviso, as it stands, is intra vires and interpret the same as such16. This leaves us to consider the last argument of the landlord that the applicability of this proviso being a mixed question of law and fact and there being no issues before the courts below, the same cannot be applied in abstract. We see force in this contention before refusing eviction based on the ground of the bar imposed by the proviso. The Court will have to come to the conclusion that the premisesland eviction whereof has been obtained by the landlord, belong to the same class of building or tenanted land. This finding of the Court will be dependent upon the facts which are not available on records of this case. The absence of this evidence will cause prejudice to the landlord if the said question is to be decided in these appeals. Though in the earlier part of this judgment, we have held that the parties in this case have pleaded the facts necessary for invoking the proviso, still since no issue has been framed on this point, the parties have not led evidence in regard to the nature of the buildingland. Therefore, we agree with the argument of the landlord that in order to apply the proviso, certain factual matrix has to be established absence of which, in appropriate cases, might necessitate a remand to the trial court. On the peculiar facts of this case and taking into consideration the fact that this litigation has been going on since 1979 and there has already been one remand from the High Court to the appellate authority, we find it just and proper that we frame the following issue in regard to this point and remit the case to the trial court for the purpose of recording evidence and its decision :Does the respondent prove that the applicant has obtained possession of other residential building or rented land of the same class under the provisions of Clause (b) of Section 13(3) of the Act so as to disentitle it to obtain possession of the petition scheduled premises ? | 1 | 4,530 | 2,226 | ### Instruction:
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building which is sufficient for his personal occupation...... 14. Based on the above-cited two judgments of the High Court, it is contended that the landlord in the instant case is seeking eviction of a part of the premises owned by it which is leased to the present appellant. Eviction of the three other tenants referred to herein above was from the premises which are parts of the same premises, therefore, in view of the above judgment the bar under the proviso is not applicable. We find it difficult to accept this argument of the landlord also. From the language of the proviso we do not find any support for this argument of the appellant or to the conclusions arrived at by the High Court in the above-referred judgments. The proviso does not make any such distinction between a landlord seeking possession of the premises held by more than one tenant occupying the same building or the tenants occupying different independent buildings under the same landlord. As we have observed, the object of the proviso like any other provisions of the Act, is to further restrict the right of the landlord to seek eviction, if that be so, we do not find any justification in reading into the proviso something as conferring a larger right on the landlord to evict more than one tenant if those tenants are occupying different parts of the same premises. Therefore, we are of the opinion that the view expressed by the High Court in the above referred case does not lay down the correct law. Consequently, the argument of the landlord based on the said judgment is also rejected. 15. It is next contended on behalf of the landlord that the decisions cited above have stood the test of time since 1978 onwards, if not earlier, because of which the law is so understood in that part of the country, therefore, we should not interfere with the ratio laid down by the High Court of Punjab & Haryana in those cases so as not to create uncertainty in judicial thinking. We are unable to accept this argument advanced on behalf of the landlord. When we find that the interpretation of the proviso by the High Court is wholly contrary to the object of the Statute, merely because it had remained to be the interpretation of the High Court for a considerable length of time, the same cannot be permitted to continue to be so when it is erroneous and it is so brought to our notice. We will be failing in our duty if we do not declare an erroneous interpretation of law by the High Court to be so, solely on the ground that it has stood the test of time. Since, in our opinion, in regard to the interpretation of the above proviso, no two views are possible, we are constrained to hold that the law declared by the Punjab & Haryana High Court with reference to the proviso is not the correct interpretation and hold that the said judgment is no more a good law. On behalf of the landlord, another argument based on equity was addressed before us giving various examples of the hardship that could be caused to the landlords by the interpretation we have now given to the said proviso. We do not find that the proviso, as interpreted by us, may cause some hardship to the landlords in some cases but that is the intention of the Legislature which the courts have to take to its logical end so long as it remains in the Statute book. Merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. We may notice at this stage that constitutional validity of the proviso is not in challenge before us, therefore, we will have to proceed on the footing that the proviso, as it stands, is intra vires and interpret the same as such. 16. This leaves us to consider the last argument of the landlord that the applicability of this proviso being a mixed question of law and fact and there being no issues before the courts below, the same cannot be applied in abstract. We see force in this contention before refusing eviction based on the ground of the bar imposed by the proviso. The Court will have to come to the conclusion that the premisesland eviction whereof has been obtained by the landlord, belong to the same class of building or tenanted land. This finding of the Court will be dependent upon the facts which are not available on records of this case. The absence of this evidence will cause prejudice to the landlord if the said question is to be decided in these appeals. Though in the earlier part of this judgment, we have held that the parties in this case have pleaded the facts necessary for invoking the proviso, still since no issue has been framed on this point, the parties have not led evidence in regard to the nature of the buildingland. Therefore, we agree with the argument of the landlord that in order to apply the proviso, certain factual matrix has to be established absence of which, in appropriate cases, might necessitate a remand to the trial court. On the peculiar facts of this case and taking into consideration the fact that this litigation has been going on since 1979 and there has already been one remand from the High Court to the appellate authority, we find it just and proper that we frame the following issue in regard to this point and remit the case to the trial court for the purpose of recording evidence and its decision :- Does the respondent prove that the applicant has obtained possession of other residential building or rented land of the same class under the provisions of Clause (b) of Section 13(3) of the Act so as to disentitle it to obtain possession of the petition scheduled premises ?
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landlord for actual eviction and is not confined to the stage of filing of eviction petition onlyd two judgments of the High Court, it is contended that the landlord in the instant case is seeking eviction of a part of the premises owned by it which is leased to the present appellant. Eviction of the three other tenants referred to herein above was from the premises which are parts of the same premises, therefore, in view of the above judgment the bar under the proviso is not applicable. We find it difficult to accept this argument of the landlord also. From the language of the proviso we do not find any support for this argument of the appellant or to the conclusions arrived at by the High Court in thed judgments. The proviso does not make any such distinction between a landlord seeking possession of the premises held by more than one tenant occupying the same building or the tenants occupying different independent buildings under the same landlord. As we have observed, the object of the proviso like any other provisions of the Act, is to further restrict the right of the landlord to seek eviction, if that be so, we do not find any justification in reading into the proviso something as conferring a larger right on the landlord to evict more than one tenant if those tenants are occupying different parts of the same premises. Therefore, we are of the opinion that the view expressed by the High Court in the above referred case does not lay down the correct law. Consequently, the argument of the landlord based on the said judgment is also rejected15. It is next contended on behalf of the landlord that the decisions cited above have stood the test of time since 1978 onwards, if not earlier, because of which the law is so understood in that part of the country, therefore, we should not interfere with the ratio laid down by the High Court of Punjab & Haryana in those cases so as not to create uncertainty in judicial thinking. We are unable to accept this argument advanced on behalf of the landlord. When we find that the interpretation of the proviso by the High Court is wholly contrary to the object of the Statute, merely because it had remained to be the interpretation of the High Court for a considerable length of time, the same cannot be permitted to continue to be so when it is erroneous and it is so brought to our notice. We will be failing in our duty if we do not declare an erroneous interpretation of law by the High Court to be so, solely on the ground that it has stood the test of time. Since, in our opinion, in regard to the interpretation of the above proviso, no two views are possible, we are constrained to hold that the law declared by the Punjab & Haryana High Court with reference to the proviso is not the correct interpretation and hold that the said judgment is no more a good law. On behalf of the landlord, another argument based on equity was addressed before us giving various examples of the hardship that could be caused to the landlords by the interpretation we have now given to the said proviso. We do not find that the proviso, as interpreted by us, may cause some hardship to the landlords in some cases but that is the intention of the Legislature which the courts have to take to its logical end so long as it remains in the Statute book. Merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. We may notice at this stage that constitutional validity of the proviso is not in challenge before us, therefore, we will have to proceed on the footing that the proviso, as it stands, is intra vires and interpret the same as such16. This leaves us to consider the last argument of the landlord that the applicability of this proviso being a mixed question of law and fact and there being no issues before the courts below, the same cannot be applied in abstract. We see force in this contention before refusing eviction based on the ground of the bar imposed by the proviso. The Court will have to come to the conclusion that the premisesland eviction whereof has been obtained by the landlord, belong to the same class of building or tenanted land. This finding of the Court will be dependent upon the facts which are not available on records of this case. The absence of this evidence will cause prejudice to the landlord if the said question is to be decided in these appeals. Though in the earlier part of this judgment, we have held that the parties in this case have pleaded the facts necessary for invoking the proviso, still since no issue has been framed on this point, the parties have not led evidence in regard to the nature of the buildingland. Therefore, we agree with the argument of the landlord that in order to apply the proviso, certain factual matrix has to be established absence of which, in appropriate cases, might necessitate a remand to the trial court. On the peculiar facts of this case and taking into consideration the fact that this litigation has been going on since 1979 and there has already been one remand from the High Court to the appellate authority, we find it just and proper that we frame the following issue in regard to this point and remit the case to the trial court for the purpose of recording evidence and its decision :Does the respondent prove that the applicant has obtained possession of other residential building or rented land of the same class under the provisions of Clause (b) of Section 13(3) of the Act so as to disentitle it to obtain possession of the petition scheduled premises ?
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Sales Tax Officer, Ganjam & Anr Vs. M/S. Uttareswari Rice Mills | of the provisions of the Act or any section laying down as a condition for the initiation of the proceedings that the reasons which induced the Commissioner to accord sanction to proceed under Section 34 must also be communicated to the assessee" As the provisions of Section 12 (8) of the Act and Section 34 of the Indian Income Tax Act, 1922 are substantially similar, the dicta laid down in cases under Section 34 of the Indian Income Tax Act has, in our opinion, a direct bearing. 10. Mr. Gobind Das has tried to distinguish the cases under S. 34 of the Indian Income Tax on the ground that, unlike Section 12 (8) of the Act which also provides for the imposition of penalty, there was no mention of penalty in Section 34 of the Indian Income Tax Act. This circumstance, in our opinion, makes no substantial difference and cannot prevent the applicability of the dicta laid down in cases under Section 34 of the Indian Income Tax Act, 1922 to cases under Section 12(8) of the Act.The question of imposition of penalty can only arise at the time of making an order for reassessment. Mr. Ramachandran on behalf of the appellants has frankly stated that it would be only at that stage that the sales tax officer would go into the question as to whether the escapement or under-assessment or composition has been due to the fact that the dealer concealed particulars of his turnover or without sufficient cause furnished incorrect particulars thereof. The sales tax officer in such an event, it is not disputed, would have to give opportunity to the dealer to show cause why penalty in addition to the tax should not be imposed upon him. 11. Reference has also been made by Mr. Gobind Das to the fact that notice issued to the respondent on March 31, 1967 related not merely to the escaped assessment or under-assessment, it also called upon the respondent to show cause why penalty should not be imposed upon him. It is urged that such a combined notice is invalid even though it may be in accordance with Form VI prescribed by the rules. Calling upon the respondent to show cause why penalty should not be imposed upon him, according to the learned counsel, is premature at this stage. In this respect we find that no such ground was taken by the respondent in the writ petition before the High Court. As such, it is not necessary for the purpose of this case to express an opinion on the point as to whether a notice under Section 12 (8) should be struck down on the aforesaid ground. 12. There is nothing in the language of Section 12 (8) of the Act which either expressly or by necessary implication postulates the recording of reasons in the notice which is issued to the dealer under the above provision of law. To hold that reasons which led to the issue of the said notice should be incorporated in the notice and that failure to do so would invalidate the notice, would be tantamount to reading something in the statute which, in fact, is not there. We are consequently unable to accede to the contention that the notice under the above provision of law should be quashed if the reasons which led to the issue of the notice are not mentioned in the notice. At the same time, we would like to make it clear that if the sales tax officer is in possession of material which he proposes to use against the dealer in proceedings for reassessment, the said officer must before using that material bring it to the notice of the dealer and give him adequate opportunity to explain and answer the case on the basis of that material. 13. Mr. Gobind Das has also argued that the existence of a reason that the turnover of a dealer has escaped assessment or has been under-assessed (in cases not dealing with composition) is a condition precedent to the issue of a notice under Section 12 (8) of the Act. It is urged that such reason is not shown to have existed in the present case. Although we agree with the learned counsel that the existence of the reason that the turnover of a dealer has escaped assessment or has been under-assessed is a sine qua non for the issue of the notice, we are unable to accept the contention that the said reason has been shown to be non-existent in the present case. Although the High Court did not go into this aspect of the matter, we find that the respondent has brought material on the record to indicate that there did exist such reasons. Affidavit of Shri Prakash Chandra Mohanty, Sales Tax Officer, Intelligence Circle was filed in opposition to the petition. Shri. Mohanty is the successor of Shri Patnaik who had issued the notice under Section 12 (8) of the Act to the respondent. According to the affidavit of Shri Mohanty, the material on record indicates that Shri Patnaik issued the impugned notice after he had obtained information about certain clandestine dealings of the respondent. It was further stated that the seized documents disclosed prima facie material to hold that the respondent had failed to disclose his entire turnover. It was also mentioned that the details of the material which led to the initiation of proceedings under Section 12 (8) of the Act had been recorded in the relevant case file. The said file, it would appear from the affidavit of Shri Mohanty, was kept available for reference by the High Court at the time of hearing. No reference, it would seem, was however made to that file because the High Court did not feel the necessity of doing so. 14. In our opinion the view taken by the High Court in the judgment under appeal as well as in the earlier case of ILR (1967) Cut 446 (supra) was not correct. | 1[ds]12. There is nothing in the language of Section 12 (8) of the Act which either expressly or by necessary implication postulates the recording of reasons in the notice which is issued to the dealer under the above provision of law. To hold that reasons which led to the issue of the said notice should be incorporated in the notice and that failure to do so would invalidate the notice, would be tantamount to reading something in the statute which, in fact, is not there. We are consequently unable to accede to the contention that the notice under the above provision of law should be quashed if the reasons which led to the issue of the notice are not mentioned in the notice. At the same time, we would like to make it clear that if the sales tax officer is in possession of material which he proposes to use against the dealer in proceedings for reassessment, the said officer must before using that material bring it to the notice of the dealer and give him adequate opportunity to explain and answer the case on the basis of that material13. Mr. Gobind Das has also argued that the existence of a reason that the turnover of a dealer has escaped assessment or has been under-assessed (in cases not dealing with composition) is a condition precedent to the issue of a notice under Section 12 (8) of the Act. It is urged that such reason is not shown to have existed in the present case. Although we agree with the learned counsel that the existence of the reason that the turnover of a dealer has escaped assessment or has been under-assessed is a sine qua non for the issue of the notice, we are unable to accept the contention that the said reason has been shown to be non-existent in the present case. Although the High Court did not go into this aspect of the matter, we find that the respondent has brought material on the record to indicate that there did exist such reasons. Affidavit of Shri Prakash Chandra Mohanty,Sales Tax, Intelligence Circle was filed in opposition to the petition. Shri. Mohanty is the successor of Shri Patnaik who had issued the notice under Section 12 (8) of the Act to the respondent. According to the affidavit of Shri Mohanty, the material on record indicates that Shri Patnaik issued the impugned notice after he had obtained information about certain clandestine dealings of the respondent. It was further stated that the seized documents disclosed prima facie material to hold that the respondent had failed to disclose his entire turnover. It was also mentioned that the details of the material which led to the initiation of proceedings under Section 12 (8) of the Act had been recorded in the relevant case file. The said file, it would appear from the affidavit of Shri Mohanty, was kept available for reference by the High Court at the time of hearing. No reference, it would seem, was however made to that file because the High Court did not feel the necessity of doing so14. In our opinion the view taken by the High Court in the judgment under appeal as well as in the earlier case of ILR (1967) Cut 446 (supra) was not correct. | 1 | 4,998 | 601 | ### Instruction:
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of the provisions of the Act or any section laying down as a condition for the initiation of the proceedings that the reasons which induced the Commissioner to accord sanction to proceed under Section 34 must also be communicated to the assessee" As the provisions of Section 12 (8) of the Act and Section 34 of the Indian Income Tax Act, 1922 are substantially similar, the dicta laid down in cases under Section 34 of the Indian Income Tax Act has, in our opinion, a direct bearing. 10. Mr. Gobind Das has tried to distinguish the cases under S. 34 of the Indian Income Tax on the ground that, unlike Section 12 (8) of the Act which also provides for the imposition of penalty, there was no mention of penalty in Section 34 of the Indian Income Tax Act. This circumstance, in our opinion, makes no substantial difference and cannot prevent the applicability of the dicta laid down in cases under Section 34 of the Indian Income Tax Act, 1922 to cases under Section 12(8) of the Act.The question of imposition of penalty can only arise at the time of making an order for reassessment. Mr. Ramachandran on behalf of the appellants has frankly stated that it would be only at that stage that the sales tax officer would go into the question as to whether the escapement or under-assessment or composition has been due to the fact that the dealer concealed particulars of his turnover or without sufficient cause furnished incorrect particulars thereof. The sales tax officer in such an event, it is not disputed, would have to give opportunity to the dealer to show cause why penalty in addition to the tax should not be imposed upon him. 11. Reference has also been made by Mr. Gobind Das to the fact that notice issued to the respondent on March 31, 1967 related not merely to the escaped assessment or under-assessment, it also called upon the respondent to show cause why penalty should not be imposed upon him. It is urged that such a combined notice is invalid even though it may be in accordance with Form VI prescribed by the rules. Calling upon the respondent to show cause why penalty should not be imposed upon him, according to the learned counsel, is premature at this stage. In this respect we find that no such ground was taken by the respondent in the writ petition before the High Court. As such, it is not necessary for the purpose of this case to express an opinion on the point as to whether a notice under Section 12 (8) should be struck down on the aforesaid ground. 12. There is nothing in the language of Section 12 (8) of the Act which either expressly or by necessary implication postulates the recording of reasons in the notice which is issued to the dealer under the above provision of law. To hold that reasons which led to the issue of the said notice should be incorporated in the notice and that failure to do so would invalidate the notice, would be tantamount to reading something in the statute which, in fact, is not there. We are consequently unable to accede to the contention that the notice under the above provision of law should be quashed if the reasons which led to the issue of the notice are not mentioned in the notice. At the same time, we would like to make it clear that if the sales tax officer is in possession of material which he proposes to use against the dealer in proceedings for reassessment, the said officer must before using that material bring it to the notice of the dealer and give him adequate opportunity to explain and answer the case on the basis of that material. 13. Mr. Gobind Das has also argued that the existence of a reason that the turnover of a dealer has escaped assessment or has been under-assessed (in cases not dealing with composition) is a condition precedent to the issue of a notice under Section 12 (8) of the Act. It is urged that such reason is not shown to have existed in the present case. Although we agree with the learned counsel that the existence of the reason that the turnover of a dealer has escaped assessment or has been under-assessed is a sine qua non for the issue of the notice, we are unable to accept the contention that the said reason has been shown to be non-existent in the present case. Although the High Court did not go into this aspect of the matter, we find that the respondent has brought material on the record to indicate that there did exist such reasons. Affidavit of Shri Prakash Chandra Mohanty, Sales Tax Officer, Intelligence Circle was filed in opposition to the petition. Shri. Mohanty is the successor of Shri Patnaik who had issued the notice under Section 12 (8) of the Act to the respondent. According to the affidavit of Shri Mohanty, the material on record indicates that Shri Patnaik issued the impugned notice after he had obtained information about certain clandestine dealings of the respondent. It was further stated that the seized documents disclosed prima facie material to hold that the respondent had failed to disclose his entire turnover. It was also mentioned that the details of the material which led to the initiation of proceedings under Section 12 (8) of the Act had been recorded in the relevant case file. The said file, it would appear from the affidavit of Shri Mohanty, was kept available for reference by the High Court at the time of hearing. No reference, it would seem, was however made to that file because the High Court did not feel the necessity of doing so. 14. In our opinion the view taken by the High Court in the judgment under appeal as well as in the earlier case of ILR (1967) Cut 446 (supra) was not correct.
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### Explanation:
12. There is nothing in the language of Section 12 (8) of the Act which either expressly or by necessary implication postulates the recording of reasons in the notice which is issued to the dealer under the above provision of law. To hold that reasons which led to the issue of the said notice should be incorporated in the notice and that failure to do so would invalidate the notice, would be tantamount to reading something in the statute which, in fact, is not there. We are consequently unable to accede to the contention that the notice under the above provision of law should be quashed if the reasons which led to the issue of the notice are not mentioned in the notice. At the same time, we would like to make it clear that if the sales tax officer is in possession of material which he proposes to use against the dealer in proceedings for reassessment, the said officer must before using that material bring it to the notice of the dealer and give him adequate opportunity to explain and answer the case on the basis of that material13. Mr. Gobind Das has also argued that the existence of a reason that the turnover of a dealer has escaped assessment or has been under-assessed (in cases not dealing with composition) is a condition precedent to the issue of a notice under Section 12 (8) of the Act. It is urged that such reason is not shown to have existed in the present case. Although we agree with the learned counsel that the existence of the reason that the turnover of a dealer has escaped assessment or has been under-assessed is a sine qua non for the issue of the notice, we are unable to accept the contention that the said reason has been shown to be non-existent in the present case. Although the High Court did not go into this aspect of the matter, we find that the respondent has brought material on the record to indicate that there did exist such reasons. Affidavit of Shri Prakash Chandra Mohanty,Sales Tax, Intelligence Circle was filed in opposition to the petition. Shri. Mohanty is the successor of Shri Patnaik who had issued the notice under Section 12 (8) of the Act to the respondent. According to the affidavit of Shri Mohanty, the material on record indicates that Shri Patnaik issued the impugned notice after he had obtained information about certain clandestine dealings of the respondent. It was further stated that the seized documents disclosed prima facie material to hold that the respondent had failed to disclose his entire turnover. It was also mentioned that the details of the material which led to the initiation of proceedings under Section 12 (8) of the Act had been recorded in the relevant case file. The said file, it would appear from the affidavit of Shri Mohanty, was kept available for reference by the High Court at the time of hearing. No reference, it would seem, was however made to that file because the High Court did not feel the necessity of doing so14. In our opinion the view taken by the High Court in the judgment under appeal as well as in the earlier case of ILR (1967) Cut 446 (supra) was not correct.
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National Insurance Co. Ltd Vs. Kaushalaya Devi | a valid driving lience. On 16.3.2000 Shyam Lal only held a licence to drive a light transport vehicle and the owner could not have checked or verified the licence for driving a heavy goods vehicle. In fact in this case the owner has not even stepped into the witness box to say anything in this regard. Therefore, I hold that the insurance company was wrongly held liable to pay compensation. As regards to the question as to whether the deceased was an unauthorized passenger, it accepted the plea of the insurance company. 10. The provisions relating to the necessity of having a licence to drive a vehicle is contained in Sections 3, 4 and 10 of the Act. As various aspects of the said provisions, vis-à-vis, the liability of the insurance company to reimburse the owner in respect of a claim of a third party as provided in Section 149 thereof have been dealt with in several decisions, it is not necessary for us to reiterate the same once over again. Suffice it to notice some of the precedents operating in the field. In National Insurance Co. Ltd. v. Swaran Singh & Ors. [(2004) 3 SCC 297] , this Court held: 88. Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder there to drive the vehicle falling within that class or description. 89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. It was furthermore, observed: 90. We have construed and determined the scope of sub-clause (ii) of sub-section (2) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties. 91. On all pleas of breach of licensing conditions taken by the insurer, it would be open to the Tribunal to adjudicate the claim and decide inter se liability of insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil court. The decision in Swaran Singh, however, was held to be not applicable in relation to the owner or a passenger of a vehicle which is insured. 11. In National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 36 ], this Court referring to Swaran Singh (supra) and discussing the law on the subject, held: In view of the above analysis the following situations emerge: 1. The decision in Swaran Singhs case (supra) has no application to cases other than third party risks. 2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality. 3. In case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured. 4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act. The High Courts/Commissions shall now consider the mater afresh in the light of the position in law as delineated above. See also Oriental Insurance Company Ltd. v. Meena Variyal & Ors. [2007 (5) SCALE 269 ]; Oriental Insurance Company Ltd. v. Brij Mohan & Ors. [2007 (7) SCALE 753 ]; and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727 ]. 12. In view of the findings arrived at by the High Court, it must be held that the owner alone was liable to pay compensation to the first respondent herein for causing death of her son by rash and negligent driving on the part of the driver of the truck. The High Courts judgment must be sustained on this ground. 13. The deceased was not the owner of any goods which were being carried in the truck. Admitted position is that he had been traveling in the truck for the purpose of collecting the empty boxes. He was a vegetable dealer. He was not traveling in the truck as owner of the goods viz. the vegetables. He was traveling in the truck for a purpose other than the one for which he was entitled to travel in a public carriage goods vehicle. This aspect of the matter is squarely covered by the decision of this Court in Brij Mohan (supra) wherein the Bench cited with approval the decision in New India Assurance Co. Ltd. v. Asha Rani & Ors. [(2003) 2 SCC 223] wherein it was stated: 26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words any person must also be attributed having regard to the context in which they have been used i.e. a third party. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor. See also Prem Kumar & Ors. v. Prahlad Dev & Ors. [2008 (1) SCALE 531 ] and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727 ]. | 1[ds]12. In view of the findings arrived at by the High Court, it must be held that the owner alone was liable to pay compensation to the first respondent herein for causing death of her son by rash and negligent driving on the part of the driver of the truck. The High Courts judgment must be sustained on this ground13. The deceased was not the owner of any goods which were being carried in the truck. Admitted position is that he had been traveling in the truck for the purpose of collecting the empty boxes. He was a vegetable dealer. He was not traveling in the truck as owner of the goods viz. the vegetables. He was traveling in the truck for a purpose other than the one for which he was entitled to travel in a public carriage goods vehicle. This aspect of the matter is squarely covered by the decision of this Court in Brij Mohan (supra) wherein the Bench cited with approval the decision in New India Assurance Co. Ltd. v. Asha Rani & Ors. [(2003) 2 SCC 223] wherein it was stated:26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words any person must also be attributed having regard to the context in which they have been used i.e. a third party. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable thereforSee also Prem Kumar & Ors. v. Prahlad Dev & Ors. [2008 (1) SCALE 531 ] and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727 ] | 1 | 1,917 | 349 | ### 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:
a valid driving lience. On 16.3.2000 Shyam Lal only held a licence to drive a light transport vehicle and the owner could not have checked or verified the licence for driving a heavy goods vehicle. In fact in this case the owner has not even stepped into the witness box to say anything in this regard. Therefore, I hold that the insurance company was wrongly held liable to pay compensation. As regards to the question as to whether the deceased was an unauthorized passenger, it accepted the plea of the insurance company. 10. The provisions relating to the necessity of having a licence to drive a vehicle is contained in Sections 3, 4 and 10 of the Act. As various aspects of the said provisions, vis-à-vis, the liability of the insurance company to reimburse the owner in respect of a claim of a third party as provided in Section 149 thereof have been dealt with in several decisions, it is not necessary for us to reiterate the same once over again. Suffice it to notice some of the precedents operating in the field. In National Insurance Co. Ltd. v. Swaran Singh & Ors. [(2004) 3 SCC 297] , this Court held: 88. Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder there to drive the vehicle falling within that class or description. 89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. It was furthermore, observed: 90. We have construed and determined the scope of sub-clause (ii) of sub-section (2) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties. 91. On all pleas of breach of licensing conditions taken by the insurer, it would be open to the Tribunal to adjudicate the claim and decide inter se liability of insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil court. The decision in Swaran Singh, however, was held to be not applicable in relation to the owner or a passenger of a vehicle which is insured. 11. In National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 36 ], this Court referring to Swaran Singh (supra) and discussing the law on the subject, held: In view of the above analysis the following situations emerge: 1. The decision in Swaran Singhs case (supra) has no application to cases other than third party risks. 2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality. 3. In case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured. 4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act. The High Courts/Commissions shall now consider the mater afresh in the light of the position in law as delineated above. See also Oriental Insurance Company Ltd. v. Meena Variyal & Ors. [2007 (5) SCALE 269 ]; Oriental Insurance Company Ltd. v. Brij Mohan & Ors. [2007 (7) SCALE 753 ]; and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727 ]. 12. In view of the findings arrived at by the High Court, it must be held that the owner alone was liable to pay compensation to the first respondent herein for causing death of her son by rash and negligent driving on the part of the driver of the truck. The High Courts judgment must be sustained on this ground. 13. The deceased was not the owner of any goods which were being carried in the truck. Admitted position is that he had been traveling in the truck for the purpose of collecting the empty boxes. He was a vegetable dealer. He was not traveling in the truck as owner of the goods viz. the vegetables. He was traveling in the truck for a purpose other than the one for which he was entitled to travel in a public carriage goods vehicle. This aspect of the matter is squarely covered by the decision of this Court in Brij Mohan (supra) wherein the Bench cited with approval the decision in New India Assurance Co. Ltd. v. Asha Rani & Ors. [(2003) 2 SCC 223] wherein it was stated: 26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words any person must also be attributed having regard to the context in which they have been used i.e. a third party. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor. See also Prem Kumar & Ors. v. Prahlad Dev & Ors. [2008 (1) SCALE 531 ] and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727 ].
### Response:
1
### Explanation:
12. In view of the findings arrived at by the High Court, it must be held that the owner alone was liable to pay compensation to the first respondent herein for causing death of her son by rash and negligent driving on the part of the driver of the truck. The High Courts judgment must be sustained on this ground13. The deceased was not the owner of any goods which were being carried in the truck. Admitted position is that he had been traveling in the truck for the purpose of collecting the empty boxes. He was a vegetable dealer. He was not traveling in the truck as owner of the goods viz. the vegetables. He was traveling in the truck for a purpose other than the one for which he was entitled to travel in a public carriage goods vehicle. This aspect of the matter is squarely covered by the decision of this Court in Brij Mohan (supra) wherein the Bench cited with approval the decision in New India Assurance Co. Ltd. v. Asha Rani & Ors. [(2003) 2 SCC 223] wherein it was stated:26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words any person must also be attributed having regard to the context in which they have been used i.e. a third party. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable thereforSee also Prem Kumar & Ors. v. Prahlad Dev & Ors. [2008 (1) SCALE 531 ] and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727 ]
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Gurdial Singh Vs. Union Of India | masses of this country had participated in the freedom struggle without any expection of grant of any schemed at the relevant time. It has also to be kept in mind that in the partition of the country most of citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from the foreign country is very cumbersome and expensive. Keeping in mind the object of the scheme, the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rationale and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the scheme are supposed to be such persons who had given the best part of their life for the country. This Court in Mukund Lal Bhandaris case (supra) observed : "The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would,d be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, sine we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable toe extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters of their dependents. The preference in employment, allotment of accommodation and in admission to schools and colleges of their kith and kin etc., are also the other benefits which have been made available to them for quite sometime now." The court categorically mentioned that the pension under the scheme should be made payable from the date on which the application is made whether it is accompanied by necessary proof of eligibility or not. 7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal a not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be covered by scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touch-stone of the test of `beyond reasonable doubt. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence. 8. We have noticed with disgust that the respondent Authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been pased with a biased and close mind completely ignoring the verdict of this Court in Mukund Lal Bhandaris case. We further feel that after granting the pension to the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in CWP No. 3790 of 1994 entitled Mohan Singh v. Union of India decided on 1.6.1995 and CWP 14442 of 1995 decided on 11.12.1995. 9. We are satisfied that the order of the respondent Authorities impugned before the High Court (Annexure P-14) dated 1.11.2000 is liable to be set aside and the appellant entitled to the grant of relief of pension. However, keeping in view the lapse of time and peculiar circumstances of the case, we are not inclined to grant him the pension with effect from 12.3.1973 as claimed and feel that the ends of justice would be met if the appellant is granted pension with effect from March, 1996 when he was forced to file Writ Petition No. 12350 of 1996. | 1[ds]8. We have noticed with disgust that the respondent Authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been pased with a biased and close mind completely ignoring the verdict of this Court in Mukund Lal Bhandaris case. We further feel that after granting the pension to the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in CWP No. 3790 of 1994 entitled Mohan Singh v. Union of India decided on 1.6.1995 and CWP 14442 of 1995 decided on 11.12.1995.We are satisfied that the order of the respondent Authorities impugned before the High Court (Annexure P-14) dated 1.11.2000 is liable to be set aside and the appellant entitled to the grant of relief of pension. However, keeping in view the lapse of time and peculiar circumstances of the case, we are not inclined to grant him the pension with effect from 12.3.1973 as claimed and feel that the ends of justice would be met if the appellant is granted pension with effect from March, 1996 when he was forced to file Writ Petition No. 12350 of 1996. | 1 | 2,369 | 325 | ### 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:
masses of this country had participated in the freedom struggle without any expection of grant of any schemed at the relevant time. It has also to be kept in mind that in the partition of the country most of citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from the foreign country is very cumbersome and expensive. Keeping in mind the object of the scheme, the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rationale and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the scheme are supposed to be such persons who had given the best part of their life for the country. This Court in Mukund Lal Bhandaris case (supra) observed : "The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would,d be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, sine we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable toe extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters of their dependents. The preference in employment, allotment of accommodation and in admission to schools and colleges of their kith and kin etc., are also the other benefits which have been made available to them for quite sometime now." The court categorically mentioned that the pension under the scheme should be made payable from the date on which the application is made whether it is accompanied by necessary proof of eligibility or not. 7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal a not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be covered by scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touch-stone of the test of `beyond reasonable doubt. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence. 8. We have noticed with disgust that the respondent Authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been pased with a biased and close mind completely ignoring the verdict of this Court in Mukund Lal Bhandaris case. We further feel that after granting the pension to the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in CWP No. 3790 of 1994 entitled Mohan Singh v. Union of India decided on 1.6.1995 and CWP 14442 of 1995 decided on 11.12.1995. 9. We are satisfied that the order of the respondent Authorities impugned before the High Court (Annexure P-14) dated 1.11.2000 is liable to be set aside and the appellant entitled to the grant of relief of pension. However, keeping in view the lapse of time and peculiar circumstances of the case, we are not inclined to grant him the pension with effect from 12.3.1973 as claimed and feel that the ends of justice would be met if the appellant is granted pension with effect from March, 1996 when he was forced to file Writ Petition No. 12350 of 1996.
### Response:
1
### Explanation:
8. We have noticed with disgust that the respondent Authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been pased with a biased and close mind completely ignoring the verdict of this Court in Mukund Lal Bhandaris case. We further feel that after granting the pension to the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in CWP No. 3790 of 1994 entitled Mohan Singh v. Union of India decided on 1.6.1995 and CWP 14442 of 1995 decided on 11.12.1995.We are satisfied that the order of the respondent Authorities impugned before the High Court (Annexure P-14) dated 1.11.2000 is liable to be set aside and the appellant entitled to the grant of relief of pension. However, keeping in view the lapse of time and peculiar circumstances of the case, we are not inclined to grant him the pension with effect from 12.3.1973 as claimed and feel that the ends of justice would be met if the appellant is granted pension with effect from March, 1996 when he was forced to file Writ Petition No. 12350 of 1996.
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TILAK RAJ BAKSHI Vs. AVINASH CHAND SHARMA(DEAD) THROUGH LRS | firm or. other body of individuals, whether incorporated or not) to whom a site or building is transferred in any manner whatsoever, under this Act and includes his successors and assigns; 57. Section 4(2) of the 1952 Act reads as follows: 4(2) Every transferee shall comply with the directions issued under sub-section(1) and shall as expeditiously as possible, erect any building or take such other steps as may be necessary, to comply with such directions. 58. Section 5 of the 1952 Act forbids erection or occupation of any building at Chandigarh in contravention of Building Rules made under sub-Section (2). The word building is defined in Section 2(c), which reads as follows: 2(c)building means any construction or part of a construction which is transferred by the [Central Government] under section 3 and which is intended to be used for residential, commercial, industrial or other purposes, whether in actual use or not, and includes any out-house, stable, cattle shed and garage and also includes any building erected on any land transferred by the Central Government under section 3; 59. From a perusal of the aforesaid provisions, it becomes clear that the word site means any land which is transferred under Section 3 of the 1952 Act. When it comes to the terms of Section 3, it contemplates power with the Central Government to transfer by auction, allotment or otherwise any land or building belonging to the Government in Chandigarh on such terms and conditions as may subject to any Rules that can be made under the Act, the Government thinks fit to impose. Thus, though it is open to the Central Government to transfer either land or building belonging to the Government in Chandigarh under Section 3 of the 1952 Act, the word site is confined to only the land which is transferred by the Central Government under Section 3. In fact, the word building, as defined in the Act, points to any construction or part of construction which his transferred under Section 3. It includes outhouse, stable, cattle shed and garage and also includes any building erected on any land transferred by the Central Government. The construction must be intended to be used for residential, commercial, industrial or any other purposes. A clear distinction is maintained between site and building. The Chandigarh (Sale of Sites and Building) Rules, 1960 came to be made. Section 22 of the 1952 Act confers power upon the Central Government to make the Rules for various purposes, which are mentioned in sub-Section (2). It includes Sections 2(a), 2(d), 2(e) and 2(h) of the 1952 Act, which reads as follows: 2(a) the terms and conditions on which any land or building may be transferred by the Central Government under this Act; xxx xxx xxx 2(d) the terms and conditions under which the transfer of any right in any sit or building may be permitted; xxx xxx xxx 2(e) erection of any building or the use of any site; xxx xxx xxx 2(h) the conditions with regard to the buildings to be erected on sites transferred under this Act; 60. Rule 14 of the Chandigarh Sale of Sites and Building Rules, 1960 provides that no fragmentation of any site is permitted. Subsequently, in exercise of powers under Sections 3 and 22 of the Act, Chandigarh Estate Rules, 2007 came to be made. Rule 16 deals with fragmentation/amalgamation, which reads as follows: 16. Fragmentation/Amalgamation. No fragmentation or amalgamation of any site or building shall be permitted. Provided that amalgamation of two or more adjoining sites shall be permissible only in the case of commercial or industrial sites subject to the condition that the revised plans are approved by the competent authority, prior thereto. Provided further that fragmentation of any site shall be allowed if such fragmentation is permitted under any scheme notified by the Administration. (Emphasis supplied) 61. It is on the strength of the provisions contained in Rule 14 of the 1960 Rules and Rule 16 of the 2007 Rules that the appellant would argue that the assignment of the share of the first defendant occasioned a breach of the law. The second defendant, on the other hand would point out that there was no issue of fragmentation ever raised before the courts and the same was not decided in the courts. 62. It is contended by the second defendant that the sale deed in favour of the respondent no.1 specifically says that the sale is in respect of one-third share in the residential house no.13 of Sector 19A, Chandigarh. After the sale deed, it is contended, one-third share of the party was duly transferred and mutated in the name of respondent no.1/second defendant by the Chandigarh Administration. The High Court, in fact, tides over this objection by the appellant by pointing out that once the second defendant steps into the shoes of the first defendant, he became a co-owner and his remedy is to sue for partition and while fragmentation of property, is not admissible, the market value of the property can be determined, and buying each others share, as per the provisions of Sections 2, 3 and 4 of the Partition Act, 1893. 63. While it may not be true that the issue of fragmentation was not raised in the courts, we would think that the appellant is not able to persuade us to hold that the assignment in favour of the second defendant is vulnerable on the basis that it involves fragmentation. We have noticed the deposition of the plaintiff about partition of the house into three portions. We have noted the fact that one-third share has been duly transferred and mutated in the name of the first respondent/second defendant by the Chandigarh Administration. 64. The second defendant has produced the communication dated 19.12.1997 which indicates the transfer of rights of site in Sector 19A held by Vishnu Dutt Mehta (first defendant) is noted in favour of the second defendant subject to certain conditions. This is obviously before the 2007 Rules came into force. | 0[ds]FINDINGS WHETHER THERE WAS A FAMILY SETTLEMENT?17. As far as the first question is concerned, whether there was a family settlement, at paragraph 6 of the plaint, the family settlement was pleaded. The answer to the same, by the second defendant, is that the alleged family settlement dated 31.03.1982 is a forged and fabricated document. We can safely conclude that no material has been placed by the second defendant to establish that the alleged family settlement is a forged document. There is no case that it is not a family settlement. The settlement is arrived at between the plaintiff, his brother-the first defendant and another brother-third defendant. Therefore, we can proceed on the basis that there is a family settlementWHETHER THE FAMILY SETTLEMENT WAS VAGUE?18. With regard to the finding by the High Court that whether the family settlement is vague, unenforceable and void, the complaint of the plaintiff is that there is no pleading that family settlement is vague and unenforceable21. Therefore, the mere fact that a plea is not taken, that the clause in question is vague, and hence, unenforceable and void will not stand in the way of the Appellate Court looking into the contract and, if on its terms, it finds it to be vague and unenforceable, it can be so held22. The question is to whether clause (5) in question is vague and unenforceable. We noticed that it provides that the property in question cannot be sold without concurrence of the three brothers in writing. If it is sold on the agreement of three brothers, the first preference is to be given to both other brothers. When it is stated that the property cannot be sold without concurrence of the three brothers in writing, there cannot be any doubt about its meaning. It means what it says which is that should a brother want to sell the property, the other two brothers must agree in writing. This clause cannot be described as vague. This is different from the aspect as to whether it is a clog on ownership or whether it is otherwise unenforceable but it cannot be described as being vague. The second contention is that when a decision is taken by the brothers permitting sale by a third brother, then, first preference is to be given to both the other brothers. What is intended is that after the written concurrence is obtained for selling in order that property is not sold to a third party/stranger, the other two brothers are given an opportunity to buy that property. This portion of the clause cannot also be described as vague as such. No doubt, it could be argued that the price at which the offer is to be made is not expressly mentioned. We have found that the clause is part of a family settlement between brothers. Courts ordinarily lean in favour of family settlement. Clause (5) itself does not contain an agreement to sell. It only contemplates a preferential offer being treated as a condition precedent to a brother affecting a sale outside of a family to a stranger. The price can only be understood as market price which would be the fair price. Therefore, we are of the view that the finding by the High Court that contract is vague cannot be sustainedWHETHER OFFER WAS MADE BY DEFENDANT NO.1 TO PLAINTIFF30. Correspondence indeed establish, therefore, that the health of the first defendant was poor and it was deteriorating and he was in urgent need for money. It is quite clear that the first defendant had made offer to the appellant for selling his share for Rupees Five Lakhs. It is also quite clear that the plaintiff himself acknowledged in the letter dated 01.04.1996 that the offer of Rupees five lakhs was reasonable. Appellant, quite clearly, has articulated his pressing priority to be to conduct the marriage of his daughter. This means that he was hard pressed for money. Otherwise there was no need for him after finding the offer to be reasonable to request the first defendant and his wife to try to reduce the value. Letter dated 15.04.1996 written by the first defendants wife shows that she did not wish to then receive earnest money and she finally demanded that final payment be made as prices in Chandigarh were increasing quite rapidly and rate settled by the plaintiff was quite old. She emphasized that the offer was given because she was in dire need of money. Now the need is of the plaintiff. This correspondence also tends to show that the rate of five lakhs was, in fact, even acceptable to the plaintiff as the letter referred to the rate settled by the plaintiff being quite old. But nothing was happening on the ground. This leads the first defendant wife to state that she would only handle the situation in any manner but it will not be possible later on. The sale took place after more than a year. One thing is clear that an offer was made on behalf of the first defendant to the plaintiff32. Apparently, in keeping with the family settlement, a preference was indeed shown. The price was reasonable and acceptable even to the plaintiff though he wanted a reduction. Having regard to the health of the first defendant and the dire stage at which first defendant and his wife were placed, we cannot for a moment but hold that they had made an attempt to comply with the condition in the family settlement providing for preferenceWHETHER THE HIGH COURT WAS RIGHT IN HOLDING THAT THE COURTS WOULD NOT EXERCISE DISCRETION UNDER SECTION 20 OF THE SPECIFIC RELIEF ACT, 1963 AS THE CONTRACT WAS NOT SPECIFICALLY ENFORCEABLE?34. In this regard, the question would arise in the first place as to which is the contract which is sought to be enforced. It is pleaded in the plaint that first defendant was interested in disposing of his share and the plaintiff was ready and willing to purchase the share of first defendant. It is specifically averred that the third defendant (the other brother) did not show any interest in purchasing share of the fist defendant. Finally, the relief sought is by way of decree for specific performance directing the defendant to sell by the sale of one-third share in the house to the plaintiff and handover vacant possession of the demised portion to the plaintiff. This is apart from the relief against the sale in favour of the second defendantThus, it can be seen that the family settlement has been understood as the agreement and the plaintiff is entitled to specific performance of the agreement37. A perusal of these judgments would reveal the following aspects:1. The Appellate Court finds that the plaint schedule property was owned by the father. It is found that the three sons get equal shares2. The Trial Court finds that no offer was made by the first defendant to the plaintiff. It decrees specific performance by directing so on the basis that first defendant will have to make an offer to the plaintiff and the third defendant after finding that the first defendant was not bound to make an offer to sell at Rs.4.80 lakhs. The Appellate Court, on the other hand, has gone to decree specific performance by even directing possession of the property to be given to the plaintiff by the second defendant. On the basis of the terms and conditions of the agreement dated 31.03.1982, there are clearly two palpable flaws in the findings and directions. Admittedly, the second defendant was already occupying the property as a tenant. He can be evicted only in accordance with law even if everything is held in favour of the plaintiff. In other words, even if it is found that the assignment by the first defendant in favour of the second defendant is null and void, he has the right to continue in possession unless he is evicted under the relevant law for the eviction of tenants. Therefore, the direction to deliver possession is clearly unsustainable. The second flaw which vitiated the judgment of the first Appellate Court is that it has proceeded to hold that plaintiff is entitled to specific performance as per the terms and conditions of the agreement dated 31.03.1982. The Appellate Court was in error in decreeing specific performance on the basis that the family settlement without anything more, embodied a contract for sale of immovable property. The terms of the agreement, viz., the price at which the property is to be sold and purchased, are not spelt out in the family settlement, as correctly noticed by the Trial Court. The Appellate Court has not proceeded to hold that the plaintiff is entitled to purchase the property at Rs.4.80 lakhs at which price the first defendant has sold to the second defendant. If the decree is treated as confirming the decree of the Trial Court, then, the price at which it is to be purchased would only have been ascertained on the basis of an offer which is made in pursuance of the Trial Courts judgment, and therefore, no decree for specific performance, as passed by the First Appellate Court, could certainly have been passed43. Right to preemption is ordinarily born out of custom or in terms of a statutory provision. We are not, in this case, concerned with the statutory right of preemption or custom. We would necessarily have to fall back on first principles relating to preemption, which we feel, have been explained in Bishan Singh (supra) which we have set out. We will proceed on the basis that a family settlement/contract can give rise to a right of preemption44. We would notice that there is no case expressly set up in the plaint that what appellant is seeking to enforce is a right of preemption. If the suit involved a right of preemption, and proceeding on the basis that the appellant was pursuing his secondary right to follow the property sold, then, the relief would have been to substitute himself in place of the buyer/second defendant. As held by this Court, the right of preemption is not right of re-purchase. Even proceeding on the basis of it being a case of preemption, as held by the High Court and by us, first preference was given to the plaintiff. As far as decision in K. Naina Mohamed (supra)is concerned, clause (11) of the will in the said case tabooed alienation in favour of strangers. In this case, the clause, we are concerned with, certainly does not place an absolute restriction on alienation in favour of a stranger. All that it contemplates is an offer being made to the brothers, once the first step of concurrence in writing by the brothers for the sale is obtained. We do not, therefore, think that the appellant would be justified in invoking the principle underlying the right of preemption in this caseIMPACT OF ABSENCE OF WRITTEN CONCURRENCE BY BROTHERS FOR SALE52. Thus, what is sought is specific performance. The appellant proceeded in the suit on the basis that there is a contract. A contract presupposes an offer which is accepted which means that there was an offer from the defendant. The correspondence, which we have referred to, fortifies us in holding that there was an effective offer and it did not materialize on account of any default on the part of the plaintiff53. Now, if the clause is broken down, it involves the following steps. A brother announces his desire to sell his share. He seeks written concurrence of the other brothers. A written concurrence is given. Then, the next step is reached. The selling brother offers to sell it to the other brothers. If they take the offer and the price is agreeable to the parties, sale follows. If the brothers do not wish to buy, the sale to the strangers is permitted. In the above process, in the facts of this case, it is clear that the appellant and the first defendant, without insisting on the written concurrence, went to the stage of offer to brothers. The appellant has led the first defendant to assume, even without a written concurrence, that the sale is permitted. The first defendant has acted clearly on the basis that the requirement of the first stage was not being insisted upon. Otherwise, he could have certainly obtained the concurrence. Having thus acted in the matter, and the second stage having been reached, when for reasons where the fault cannot be attributed to the first defendant, the offer, which the appellant himself describes as reasonable, was not seized upon by the appellant, the third stage emerged. This meant that it became open to the first defendant to sell to a stranger and which is what he did by it selling it to the second defendant. Even proceeding to enforce the clause, we find that the appellant is clearly estopped from setting up the plea of absence of written consent of the brothers. It would be inequitable, particularly when we are considering the matter in an appeal sourced under Article 136 of the Constitution of IndiaEFFECT OF PROHIBITION AGAINST FRAGMENTATION OF PROPERTY IN QUESTION UNDER THE CAPITAL OF PUNJAB (DEVELOPMENT AND REGULATION) ACT, 195263. While it may not be true that the issue of fragmentation was not raised in the courts, we would think that the appellant is not able to persuade us to hold that the assignment in favour of the second defendant is vulnerable on the basis that it involves fragmentation. We have noticed the deposition of the plaintiff about partition of the house into three portions. We have noted the fact that one-third share has been duly transferred and mutated in the name of the first respondent/second defendant by the Chandigarh Administration64. The second defendant has produced the communication dated 19.12.1997 which indicates the transfer of rights of site in Sector 19A held by Vishnu Dutt Mehta (first defendant) is noted in favour of the second defendant subject to certain conditions. This is obviously before the 2007 Rules came into force | 0 | 13,061 | 2,577 | ### Instruction:
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firm or. other body of individuals, whether incorporated or not) to whom a site or building is transferred in any manner whatsoever, under this Act and includes his successors and assigns; 57. Section 4(2) of the 1952 Act reads as follows: 4(2) Every transferee shall comply with the directions issued under sub-section(1) and shall as expeditiously as possible, erect any building or take such other steps as may be necessary, to comply with such directions. 58. Section 5 of the 1952 Act forbids erection or occupation of any building at Chandigarh in contravention of Building Rules made under sub-Section (2). The word building is defined in Section 2(c), which reads as follows: 2(c)building means any construction or part of a construction which is transferred by the [Central Government] under section 3 and which is intended to be used for residential, commercial, industrial or other purposes, whether in actual use or not, and includes any out-house, stable, cattle shed and garage and also includes any building erected on any land transferred by the Central Government under section 3; 59. From a perusal of the aforesaid provisions, it becomes clear that the word site means any land which is transferred under Section 3 of the 1952 Act. When it comes to the terms of Section 3, it contemplates power with the Central Government to transfer by auction, allotment or otherwise any land or building belonging to the Government in Chandigarh on such terms and conditions as may subject to any Rules that can be made under the Act, the Government thinks fit to impose. Thus, though it is open to the Central Government to transfer either land or building belonging to the Government in Chandigarh under Section 3 of the 1952 Act, the word site is confined to only the land which is transferred by the Central Government under Section 3. In fact, the word building, as defined in the Act, points to any construction or part of construction which his transferred under Section 3. It includes outhouse, stable, cattle shed and garage and also includes any building erected on any land transferred by the Central Government. The construction must be intended to be used for residential, commercial, industrial or any other purposes. A clear distinction is maintained between site and building. The Chandigarh (Sale of Sites and Building) Rules, 1960 came to be made. Section 22 of the 1952 Act confers power upon the Central Government to make the Rules for various purposes, which are mentioned in sub-Section (2). It includes Sections 2(a), 2(d), 2(e) and 2(h) of the 1952 Act, which reads as follows: 2(a) the terms and conditions on which any land or building may be transferred by the Central Government under this Act; xxx xxx xxx 2(d) the terms and conditions under which the transfer of any right in any sit or building may be permitted; xxx xxx xxx 2(e) erection of any building or the use of any site; xxx xxx xxx 2(h) the conditions with regard to the buildings to be erected on sites transferred under this Act; 60. Rule 14 of the Chandigarh Sale of Sites and Building Rules, 1960 provides that no fragmentation of any site is permitted. Subsequently, in exercise of powers under Sections 3 and 22 of the Act, Chandigarh Estate Rules, 2007 came to be made. Rule 16 deals with fragmentation/amalgamation, which reads as follows: 16. Fragmentation/Amalgamation. No fragmentation or amalgamation of any site or building shall be permitted. Provided that amalgamation of two or more adjoining sites shall be permissible only in the case of commercial or industrial sites subject to the condition that the revised plans are approved by the competent authority, prior thereto. Provided further that fragmentation of any site shall be allowed if such fragmentation is permitted under any scheme notified by the Administration. (Emphasis supplied) 61. It is on the strength of the provisions contained in Rule 14 of the 1960 Rules and Rule 16 of the 2007 Rules that the appellant would argue that the assignment of the share of the first defendant occasioned a breach of the law. The second defendant, on the other hand would point out that there was no issue of fragmentation ever raised before the courts and the same was not decided in the courts. 62. It is contended by the second defendant that the sale deed in favour of the respondent no.1 specifically says that the sale is in respect of one-third share in the residential house no.13 of Sector 19A, Chandigarh. After the sale deed, it is contended, one-third share of the party was duly transferred and mutated in the name of respondent no.1/second defendant by the Chandigarh Administration. The High Court, in fact, tides over this objection by the appellant by pointing out that once the second defendant steps into the shoes of the first defendant, he became a co-owner and his remedy is to sue for partition and while fragmentation of property, is not admissible, the market value of the property can be determined, and buying each others share, as per the provisions of Sections 2, 3 and 4 of the Partition Act, 1893. 63. While it may not be true that the issue of fragmentation was not raised in the courts, we would think that the appellant is not able to persuade us to hold that the assignment in favour of the second defendant is vulnerable on the basis that it involves fragmentation. We have noticed the deposition of the plaintiff about partition of the house into three portions. We have noted the fact that one-third share has been duly transferred and mutated in the name of the first respondent/second defendant by the Chandigarh Administration. 64. The second defendant has produced the communication dated 19.12.1997 which indicates the transfer of rights of site in Sector 19A held by Vishnu Dutt Mehta (first defendant) is noted in favour of the second defendant subject to certain conditions. This is obviously before the 2007 Rules came into force.
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the judgment of the first Appellate Court is that it has proceeded to hold that plaintiff is entitled to specific performance as per the terms and conditions of the agreement dated 31.03.1982. The Appellate Court was in error in decreeing specific performance on the basis that the family settlement without anything more, embodied a contract for sale of immovable property. The terms of the agreement, viz., the price at which the property is to be sold and purchased, are not spelt out in the family settlement, as correctly noticed by the Trial Court. The Appellate Court has not proceeded to hold that the plaintiff is entitled to purchase the property at Rs.4.80 lakhs at which price the first defendant has sold to the second defendant. If the decree is treated as confirming the decree of the Trial Court, then, the price at which it is to be purchased would only have been ascertained on the basis of an offer which is made in pursuance of the Trial Courts judgment, and therefore, no decree for specific performance, as passed by the First Appellate Court, could certainly have been passed43. Right to preemption is ordinarily born out of custom or in terms of a statutory provision. We are not, in this case, concerned with the statutory right of preemption or custom. We would necessarily have to fall back on first principles relating to preemption, which we feel, have been explained in Bishan Singh (supra) which we have set out. We will proceed on the basis that a family settlement/contract can give rise to a right of preemption44. We would notice that there is no case expressly set up in the plaint that what appellant is seeking to enforce is a right of preemption. If the suit involved a right of preemption, and proceeding on the basis that the appellant was pursuing his secondary right to follow the property sold, then, the relief would have been to substitute himself in place of the buyer/second defendant. As held by this Court, the right of preemption is not right of re-purchase. Even proceeding on the basis of it being a case of preemption, as held by the High Court and by us, first preference was given to the plaintiff. As far as decision in K. Naina Mohamed (supra)is concerned, clause (11) of the will in the said case tabooed alienation in favour of strangers. In this case, the clause, we are concerned with, certainly does not place an absolute restriction on alienation in favour of a stranger. All that it contemplates is an offer being made to the brothers, once the first step of concurrence in writing by the brothers for the sale is obtained. We do not, therefore, think that the appellant would be justified in invoking the principle underlying the right of preemption in this caseIMPACT OF ABSENCE OF WRITTEN CONCURRENCE BY BROTHERS FOR SALE52. Thus, what is sought is specific performance. The appellant proceeded in the suit on the basis that there is a contract. A contract presupposes an offer which is accepted which means that there was an offer from the defendant. The correspondence, which we have referred to, fortifies us in holding that there was an effective offer and it did not materialize on account of any default on the part of the plaintiff53. Now, if the clause is broken down, it involves the following steps. A brother announces his desire to sell his share. He seeks written concurrence of the other brothers. A written concurrence is given. Then, the next step is reached. The selling brother offers to sell it to the other brothers. If they take the offer and the price is agreeable to the parties, sale follows. If the brothers do not wish to buy, the sale to the strangers is permitted. In the above process, in the facts of this case, it is clear that the appellant and the first defendant, without insisting on the written concurrence, went to the stage of offer to brothers. The appellant has led the first defendant to assume, even without a written concurrence, that the sale is permitted. The first defendant has acted clearly on the basis that the requirement of the first stage was not being insisted upon. Otherwise, he could have certainly obtained the concurrence. Having thus acted in the matter, and the second stage having been reached, when for reasons where the fault cannot be attributed to the first defendant, the offer, which the appellant himself describes as reasonable, was not seized upon by the appellant, the third stage emerged. This meant that it became open to the first defendant to sell to a stranger and which is what he did by it selling it to the second defendant. Even proceeding to enforce the clause, we find that the appellant is clearly estopped from setting up the plea of absence of written consent of the brothers. It would be inequitable, particularly when we are considering the matter in an appeal sourced under Article 136 of the Constitution of IndiaEFFECT OF PROHIBITION AGAINST FRAGMENTATION OF PROPERTY IN QUESTION UNDER THE CAPITAL OF PUNJAB (DEVELOPMENT AND REGULATION) ACT, 195263. While it may not be true that the issue of fragmentation was not raised in the courts, we would think that the appellant is not able to persuade us to hold that the assignment in favour of the second defendant is vulnerable on the basis that it involves fragmentation. We have noticed the deposition of the plaintiff about partition of the house into three portions. We have noted the fact that one-third share has been duly transferred and mutated in the name of the first respondent/second defendant by the Chandigarh Administration64. The second defendant has produced the communication dated 19.12.1997 which indicates the transfer of rights of site in Sector 19A held by Vishnu Dutt Mehta (first defendant) is noted in favour of the second defendant subject to certain conditions. This is obviously before the 2007 Rules came into force
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Janendra Nath Roy Vs. State of W.B | the detenu to make a representation protesting against his detention and a corresponding obligation on the Government to consider it and that it was inherent in the language of Art. 22 (5) that facility to make such a representation as early as possible should be furnished to such a detenu and to have that representation considered by the Government and not to shelve it until his case was referred to an Advisory Board. It was in this connection and to emphasise that the obligation of the Government to consider such a representation was independent of and distinct from the duty and function of the Advisory Board to once again consider it and not to shelve it till his case was referred to the Board that the learned Judge made the aforesaid observations. In Jayanarayans case, Ray, J., reviewing the constitutional obligations, both express and inherent, in Art. 22 (5), laid down four propositions. He once again emphasised the consideration of the representation made by a detenu by the State Government and the Advisory Board as two distinct obligations, and brought our clearly the point that a reference to the Board and consideration by it of the detenus representation did not dispense with the obligation of the State Government to consider it independently of its consideration by the Board. It was with a view to emphasis that obligation of the detaining authority and its satisfaction independently of the view on it of the Advisory Board and not to delay its consideration till the case was referred to the Board that observations were made in both the decisions that the Government had to consider the representation before reference was made by it to the Board. In a recent decision in Nagendra Nath Mondal v. State of West Bengal, . Writ Petn. No. 308 of 1971, D/- 13-1-1972 = (reported in AIR 1972 SC 665 ) we explained that it was with reference to such an obligation of the detaining authority as distinct and independent of a similar obligation of the Board that Ray, J., laid down his fourth proposition, and not to prescribe a rule that it must always be considered before the date of the reference to the Board, for if that was so, he would not have also said, as he did at page 231 of the report, that no. time limit can be laid down within which a representation should be dealt with except that it was a constitutional right of a detenu to have his representation considered as expeditiously as possible. If the two decisions were to be understood, as counsel urged us to do, it would be impossible in cases, where a detenu sends his representation late, for the State Government to discharge its function. Such a construction could not have been intended either by Ramaswami, J., or by Ray, J., in the two decisions referred to above. 7. As stated earlier, the petitioner was arrested on April 21, 1971. The State Government received his representation on May 19, 1971, that is to say, one day before the expiry of 30 days from the date of his detention within which the Government had to refer his case to the Advisory Board under Sec. 10 of the Act together with his representation. It is manifest that it was practically impossible for the State Government to properly and bona fide consider that representation and arrive at its decision thereon before it referred the case to the Board. Supposing that instead of the State Government receiving the said representation on May 19, 1971, it had received it a day or two later, the time for referring the case to the Board would have expired and the State Government would have been placed in a quandary, if it were intended that it should consider and come to its decision on the representation before it could refer the petitioners case to the Board. There can be no. doubt, therefore, that the obligation of the Government under Art. 22 (5) spelt out in the decisions of this Court, is that consideration by the State Government of a detenus representation is an obligation distinct from and independent of its consideration by the Board. It need not as a rule be done before the Government refers the detenus case to the Board. Such consideration, however, must be done without any inordinate delay. But each case must depend upon its own facts. And the question whether the obligation by the Government was discharged properly or not and without any inordinate delay has to be decided upon a consideration of such facts. The first contention of counsel cannot, therefore, prevail. 8. The second contention has no. merit. The allegation in the petition that the grounds of detention were motivated is only a bare allegation without its being supported by any facts or particulars. Such an allegation, obviously, could be met only by an equally bare denial which has been done in the counter-affidavit. But counsel contended that the counter-affidavit ought to have been sworn by the District Magistrate himself upon whose satisfaction the impugned order was founded. While there is some force in it, it appears from this petition as well as from other similar petitions which we had recently to deal that the West Bengal Government has given the entire work relating to detention orders to one of its officers, who naturally has to get acquainted with the facts of cases coming to him. The Government, therefore, seems to consider it convenient that that officer, and not the District Magistrate, makes the counter-affidavit. By the time such an affidavit has to be made, the record would have come to the secretariat, and therefore, it has been found more convenient that such an officer, rather than the relevant District Magistrate, should make the affidavit. In these circumstances, it is not possible to say that the objections raised by a detenu in his petition cannot be satisfactorily explained or replied to by the officer entrusted with detention cases. | 0[ds]5. In support of his first contention, counsel relied on two decisions of this Court, viz. Abdul Karim v. State of West Bengal, (1969) 3 SCR 479 = (AIR 1969 SC 1028 ) and Jayanarayan Sukul v. State of West Bengal, (1970) 3 SCR 225 = (AIR 1970 SC 675 ).Both these decisions were under the Preventive Detention Act IV of 1950, but the provisions of the present Act being almost similar to those of that Act, the principles laid down in the decisions under the latter Act would undoubtedly applyIf the two decisions were to be understood, as counsel urged us to do, it would be impossible in cases, where a detenu sends his representation late, for the State Government to discharge its function. Such a construction could not have been intended either by Ramaswami, J., or by Ray, J., in the two decisions referred to above7. As stated earlier, the petitioner was arrested on April 21, 1971. The State Government received his representation on May 19, 1971, that is to say, one day before the expiry of 30 days from the date of his detention within which the Government had to refer his case to the Advisory Board under Sec. 10 of the Act together with his representation. It is manifest that it was practically impossible for the State Government to properly and bona fide consider that representation and arrive at its decision thereon before it referred the case to the Board. Supposing that instead of the State Government receiving the said representation on May 19, 1971, it had received it a day or two later, the time for referring the case to the Board would have expired and the State Government would have been placed in a quandary, if it were intended that it should consider and come to its decision on the representation before it could refer the petitioners case to the Board. There can be no. doubt, therefore, that the obligation of the Government under Art. 22 (5) spelt out in the decisions of this Court, is that consideration by the State Government of a detenus representation is an obligation distinct from and independent of its consideration by the Board. It need not as a rule be done before the Government refers the detenus case to the Board. Such consideration, however, must be done without any inordinate delay. But each case must depend upon its own facts. And the question whether the obligation by the Government was discharged properly or not and without any inordinate delay has to be decided upon a consideration of such facts. The first contention of counsel cannot, therefore, prevail8. The second contention has no. merit. The allegation in the petition that the grounds of detention were motivated is only a bare allegation without its being supported by any facts or particulars. Such an allegation, obviously, could be met only by an equally bare denial which has been done in the. But counsel contended that thet ought to have been sworn by the District Magistrate himself upon whose satisfaction the impugned order was founded. While there is some force in it, it appears from this petition as well as from other similar petitions which we had recently to deal that the West Bengal Government has given the entire work relating to detention orders to one of its officers, who naturally has to get acquainted with the facts of cases coming to him. The Government, therefore, seems to consider it convenient that that officer, and not the District Magistrate, makes the. By the time such an affidavit has to be made, the record would have come to the secretariat, and therefore, it has been found more convenient that such an officer, rather than the relevant District Magistrate, should make the affidavit. In these circumstances, it is not possible to say that the objections raised by a detenu in his petition cannot be satisfactorily explained or replied to by the officer entrusted with detention cases. | 0 | 2,417 | 747 | ### 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:
the detenu to make a representation protesting against his detention and a corresponding obligation on the Government to consider it and that it was inherent in the language of Art. 22 (5) that facility to make such a representation as early as possible should be furnished to such a detenu and to have that representation considered by the Government and not to shelve it until his case was referred to an Advisory Board. It was in this connection and to emphasise that the obligation of the Government to consider such a representation was independent of and distinct from the duty and function of the Advisory Board to once again consider it and not to shelve it till his case was referred to the Board that the learned Judge made the aforesaid observations. In Jayanarayans case, Ray, J., reviewing the constitutional obligations, both express and inherent, in Art. 22 (5), laid down four propositions. He once again emphasised the consideration of the representation made by a detenu by the State Government and the Advisory Board as two distinct obligations, and brought our clearly the point that a reference to the Board and consideration by it of the detenus representation did not dispense with the obligation of the State Government to consider it independently of its consideration by the Board. It was with a view to emphasis that obligation of the detaining authority and its satisfaction independently of the view on it of the Advisory Board and not to delay its consideration till the case was referred to the Board that observations were made in both the decisions that the Government had to consider the representation before reference was made by it to the Board. In a recent decision in Nagendra Nath Mondal v. State of West Bengal, . Writ Petn. No. 308 of 1971, D/- 13-1-1972 = (reported in AIR 1972 SC 665 ) we explained that it was with reference to such an obligation of the detaining authority as distinct and independent of a similar obligation of the Board that Ray, J., laid down his fourth proposition, and not to prescribe a rule that it must always be considered before the date of the reference to the Board, for if that was so, he would not have also said, as he did at page 231 of the report, that no. time limit can be laid down within which a representation should be dealt with except that it was a constitutional right of a detenu to have his representation considered as expeditiously as possible. If the two decisions were to be understood, as counsel urged us to do, it would be impossible in cases, where a detenu sends his representation late, for the State Government to discharge its function. Such a construction could not have been intended either by Ramaswami, J., or by Ray, J., in the two decisions referred to above. 7. As stated earlier, the petitioner was arrested on April 21, 1971. The State Government received his representation on May 19, 1971, that is to say, one day before the expiry of 30 days from the date of his detention within which the Government had to refer his case to the Advisory Board under Sec. 10 of the Act together with his representation. It is manifest that it was practically impossible for the State Government to properly and bona fide consider that representation and arrive at its decision thereon before it referred the case to the Board. Supposing that instead of the State Government receiving the said representation on May 19, 1971, it had received it a day or two later, the time for referring the case to the Board would have expired and the State Government would have been placed in a quandary, if it were intended that it should consider and come to its decision on the representation before it could refer the petitioners case to the Board. There can be no. doubt, therefore, that the obligation of the Government under Art. 22 (5) spelt out in the decisions of this Court, is that consideration by the State Government of a detenus representation is an obligation distinct from and independent of its consideration by the Board. It need not as a rule be done before the Government refers the detenus case to the Board. Such consideration, however, must be done without any inordinate delay. But each case must depend upon its own facts. And the question whether the obligation by the Government was discharged properly or not and without any inordinate delay has to be decided upon a consideration of such facts. The first contention of counsel cannot, therefore, prevail. 8. The second contention has no. merit. The allegation in the petition that the grounds of detention were motivated is only a bare allegation without its being supported by any facts or particulars. Such an allegation, obviously, could be met only by an equally bare denial which has been done in the counter-affidavit. But counsel contended that the counter-affidavit ought to have been sworn by the District Magistrate himself upon whose satisfaction the impugned order was founded. While there is some force in it, it appears from this petition as well as from other similar petitions which we had recently to deal that the West Bengal Government has given the entire work relating to detention orders to one of its officers, who naturally has to get acquainted with the facts of cases coming to him. The Government, therefore, seems to consider it convenient that that officer, and not the District Magistrate, makes the counter-affidavit. By the time such an affidavit has to be made, the record would have come to the secretariat, and therefore, it has been found more convenient that such an officer, rather than the relevant District Magistrate, should make the affidavit. In these circumstances, it is not possible to say that the objections raised by a detenu in his petition cannot be satisfactorily explained or replied to by the officer entrusted with detention cases.
### Response:
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### Explanation:
5. In support of his first contention, counsel relied on two decisions of this Court, viz. Abdul Karim v. State of West Bengal, (1969) 3 SCR 479 = (AIR 1969 SC 1028 ) and Jayanarayan Sukul v. State of West Bengal, (1970) 3 SCR 225 = (AIR 1970 SC 675 ).Both these decisions were under the Preventive Detention Act IV of 1950, but the provisions of the present Act being almost similar to those of that Act, the principles laid down in the decisions under the latter Act would undoubtedly applyIf the two decisions were to be understood, as counsel urged us to do, it would be impossible in cases, where a detenu sends his representation late, for the State Government to discharge its function. Such a construction could not have been intended either by Ramaswami, J., or by Ray, J., in the two decisions referred to above7. As stated earlier, the petitioner was arrested on April 21, 1971. The State Government received his representation on May 19, 1971, that is to say, one day before the expiry of 30 days from the date of his detention within which the Government had to refer his case to the Advisory Board under Sec. 10 of the Act together with his representation. It is manifest that it was practically impossible for the State Government to properly and bona fide consider that representation and arrive at its decision thereon before it referred the case to the Board. Supposing that instead of the State Government receiving the said representation on May 19, 1971, it had received it a day or two later, the time for referring the case to the Board would have expired and the State Government would have been placed in a quandary, if it were intended that it should consider and come to its decision on the representation before it could refer the petitioners case to the Board. There can be no. doubt, therefore, that the obligation of the Government under Art. 22 (5) spelt out in the decisions of this Court, is that consideration by the State Government of a detenus representation is an obligation distinct from and independent of its consideration by the Board. It need not as a rule be done before the Government refers the detenus case to the Board. Such consideration, however, must be done without any inordinate delay. But each case must depend upon its own facts. And the question whether the obligation by the Government was discharged properly or not and without any inordinate delay has to be decided upon a consideration of such facts. The first contention of counsel cannot, therefore, prevail8. The second contention has no. merit. The allegation in the petition that the grounds of detention were motivated is only a bare allegation without its being supported by any facts or particulars. Such an allegation, obviously, could be met only by an equally bare denial which has been done in the. But counsel contended that thet ought to have been sworn by the District Magistrate himself upon whose satisfaction the impugned order was founded. While there is some force in it, it appears from this petition as well as from other similar petitions which we had recently to deal that the West Bengal Government has given the entire work relating to detention orders to one of its officers, who naturally has to get acquainted with the facts of cases coming to him. The Government, therefore, seems to consider it convenient that that officer, and not the District Magistrate, makes the. By the time such an affidavit has to be made, the record would have come to the secretariat, and therefore, it has been found more convenient that such an officer, rather than the relevant District Magistrate, should make the affidavit. In these circumstances, it is not possible to say that the objections raised by a detenu in his petition cannot be satisfactorily explained or replied to by the officer entrusted with detention cases.
|
R.S. Mishra Vs. State of Orissa & Others | at the appropriate stage and issue of a process could not be refused". Illustratively, Shelat, J., further added "Unless, therefore, the Magistrate finds that the evidence led before him is self- contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case".(emphasis supplied) Further, as observed later in paragraph 6 of a subsequent judgment of this Court in Niranjan Singh Vs. Jitendra Bhimraj [1990 (4) SCC 76 ], at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge. 21. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his order dated 21.03.1996 was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned. 22. In the instant case, a young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self-contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute the same. 23. The impugned order of the learned Single Judge deciding Revision notes that the appellant had been functioning in the rank of the District Judge from August 1991 onwards, i.e. for nearly 5 years prior to his order dated 21.3.1996. The impugned order further states in para 5, that a Judicial Officer, before being posted as an Additional Session Judge, gets an experience of taking the sessions cases as Assistant Session Judge. It cannot, therefore, be said that the appellant did not have requisite experience to pass a correct legal order under Section 228 of Cr.P.C. 24. That apart, all that the impugned order in Revision has done is to suggest to the High Court Administration, that if the appellant is not yet confirmed, his probation should wait and if he has already been confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court has done on the administrative side is to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision is a suggestion to the Administration of the High Court. It is not a case of making any adverse or disparaging remarks as in the three cases cited on behalf of the appellant. In fact, in the first judgment cited by the appellant, in the case of V.K. Jain (supra), the observation of this Court in clause No. I of para 58 is very significant, namely that the erosion of the credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the learned Single Judge), and having noted the serious deficiencies, the High Court has denied the selection grade to the appellant. Interestingly enough, in this Appeal by Special leave, the appellant is not directly seeking to challenge the denial of selection grade. He is challenging the observations in the impugned order which led to denial of the selection grade. In our view, the impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted. 25. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. It is contended on behalf of the appellant that in any case the suo-moto Revision has not led to the reopening of the case under Section 401 of the Code of Criminal Procedure. In this connection, we must note that by the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years. Therefore, | 0[ds]20. The observations of this Court in the case of State of Bihar Vs. Ramesh Singh [AIR 1977 SC 2018 ] / [1977 (4) SCC 39 ] are very apt in this behalf. A bench of two Judges of this Court has observed in that matter that at the initial stage of the framing of a charge, if there is a strong suspicion/evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The Court referred to the judgment of a bench of three Judges in Nirmaljit Singh Hoon Vs. State of West Bengal [1973 (3) SCC 753 ], which in turn referred to an earlier judgment of a bench of four Judges in Chandra Deo Singh Vs. Prokash Chandra Bose [AIR 1963 SC 1430 ], and observed as follows in para 5:-"5. In Nirmaljit Singh Hoon v. State of West Bengal - Shelat, J. delivering the judgment on behalf of the majority of the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prokash Chandra Bose - where this Court was held to have laid down with reference to the similar provisions contained in Sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused". Illustratively, Shelat, J., further added "Unless, therefore, the Magistrate finds that the evidence led before him is self- contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case".(emphasis supplied)Further, as observed later in paragraph 6 of a subsequent judgment of this Court in Niranjan Singh Vs. Jitendra Bhimraj [1990 (4) SCC 76 ], at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge.21. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his order dated 21.03.1996 was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned.22. In the instant casea young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self-contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute theobservation of this Court in clause No. I of para 58 is very significant, namely that the erosion of the credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter ofis only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. It is contended on behalf of the appellant that in any case the suo-moto Revision has not led to the reopening of the case under Section 401 of the Code of Criminal Procedure. In this connection, we must note that by the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years | 0 | 6,295 | 1,031 | ### 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:
at the appropriate stage and issue of a process could not be refused". Illustratively, Shelat, J., further added "Unless, therefore, the Magistrate finds that the evidence led before him is self- contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case".(emphasis supplied) Further, as observed later in paragraph 6 of a subsequent judgment of this Court in Niranjan Singh Vs. Jitendra Bhimraj [1990 (4) SCC 76 ], at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge. 21. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his order dated 21.03.1996 was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned. 22. In the instant case, a young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self-contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute the same. 23. The impugned order of the learned Single Judge deciding Revision notes that the appellant had been functioning in the rank of the District Judge from August 1991 onwards, i.e. for nearly 5 years prior to his order dated 21.3.1996. The impugned order further states in para 5, that a Judicial Officer, before being posted as an Additional Session Judge, gets an experience of taking the sessions cases as Assistant Session Judge. It cannot, therefore, be said that the appellant did not have requisite experience to pass a correct legal order under Section 228 of Cr.P.C. 24. That apart, all that the impugned order in Revision has done is to suggest to the High Court Administration, that if the appellant is not yet confirmed, his probation should wait and if he has already been confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court has done on the administrative side is to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision is a suggestion to the Administration of the High Court. It is not a case of making any adverse or disparaging remarks as in the three cases cited on behalf of the appellant. In fact, in the first judgment cited by the appellant, in the case of V.K. Jain (supra), the observation of this Court in clause No. I of para 58 is very significant, namely that the erosion of the credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the learned Single Judge), and having noted the serious deficiencies, the High Court has denied the selection grade to the appellant. Interestingly enough, in this Appeal by Special leave, the appellant is not directly seeking to challenge the denial of selection grade. He is challenging the observations in the impugned order which led to denial of the selection grade. In our view, the impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted. 25. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. It is contended on behalf of the appellant that in any case the suo-moto Revision has not led to the reopening of the case under Section 401 of the Code of Criminal Procedure. In this connection, we must note that by the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years. Therefore,
### Response:
0
### Explanation:
20. The observations of this Court in the case of State of Bihar Vs. Ramesh Singh [AIR 1977 SC 2018 ] / [1977 (4) SCC 39 ] are very apt in this behalf. A bench of two Judges of this Court has observed in that matter that at the initial stage of the framing of a charge, if there is a strong suspicion/evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The Court referred to the judgment of a bench of three Judges in Nirmaljit Singh Hoon Vs. State of West Bengal [1973 (3) SCC 753 ], which in turn referred to an earlier judgment of a bench of four Judges in Chandra Deo Singh Vs. Prokash Chandra Bose [AIR 1963 SC 1430 ], and observed as follows in para 5:-"5. In Nirmaljit Singh Hoon v. State of West Bengal - Shelat, J. delivering the judgment on behalf of the majority of the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prokash Chandra Bose - where this Court was held to have laid down with reference to the similar provisions contained in Sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused". Illustratively, Shelat, J., further added "Unless, therefore, the Magistrate finds that the evidence led before him is self- contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case".(emphasis supplied)Further, as observed later in paragraph 6 of a subsequent judgment of this Court in Niranjan Singh Vs. Jitendra Bhimraj [1990 (4) SCC 76 ], at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge.21. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his order dated 21.03.1996 was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned.22. In the instant casea young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self-contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute theobservation of this Court in clause No. I of para 58 is very significant, namely that the erosion of the credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter ofis only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. It is contended on behalf of the appellant that in any case the suo-moto Revision has not led to the reopening of the case under Section 401 of the Code of Criminal Procedure. In this connection, we must note that by the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years
|
Shailesh Harilal Shah and Others Vs. Matushree Textiles Limited and Others | reported in 1973 (43) CC 17 : 1972 AIR(Bom) 276 ) (Laljibhai C. Kapadia v. Lalji B. Desai) and the decision reported in 1964 (34) CC 777, 1965 AIR(GUJ) 96, 1965 AIR(Gujarat) 96, 1964 (1) CompLJ 326 , (Mohanlal Ganpatram v. Shri Sayaji Jubilee Cotton and Jute Mills Co. Ltd.). The learned Counsel urged that Item 8 of the 9th Annual Report sets out a resolution conferring power upon the Board of Directors to make any loan to any Body Corporate from time to time on such terms and conditions as the Directors may deem fit provided that the aggregate of the loans outstanding at any one time made to the Company shall not exceed 30% of the aggregate of the subscribed share capital. The explanatory note to Item No. 8 sets out that in the course of business, the Company may have to make loan or deposits, etc. to bodies, corporates in excess of the limits and Section 370 of the Act provides that no Company shall make any loan or loans to any Body Corporate in excess of the limits by Central Government unless making of such loans has been previously authorised by a special resolution of the lending Company. The explanatory note recites that the Company may have surplus funds during off season and which the Board of Directors may utilise for giving loans and it is, therefore, advisable in the interest of the Company to obtain consent of the members by special resolution. Shri Kapadia complains that the explanation is a tricky one because the claim that the Company may have surplus funds is totally false. Reference was made to the minutes of the meeting held on January 1, 1991 and at which meeting Santoshkumar was appointed as Additional Director. One of the reasons set out for appointing Santoshkumar was that the business of the Company of manufacturing cotton printed sarees and texturised/twisted yarn and P.O.Y. was undergoing recession and the Company under the circumstances of the crisis has trying time ahead and Santoshkumar can help the Company to come out of the crisis. Shri Kapadia submits that this reason is indicative of the fact that the financial state of the Company was not healthy and if that is so, it is impossible to imagine that the Company may have surplus funds as set out in the explanatory statement. It was urged that the power was sought by the Board of Directors only with a view to siphon away the funds of the Company to the concerns in which defendants Nos. 2 and 3 have control and interest. The learned Counsel urged that the fact that the Company did not give a truthful explanation is sufficient to invalidate the resolutions passed at the meetings. It is not possible to find any merit in the contention for more than one reason. In the first instance, the claim that the financial health of the Company was not sound cannot be accepted merely because in the meeting held on January 1, 1991, one of the reasons given for nominating Santoshkumar was to overcome the recession in the market and which was due to Gulf War and money conditions being tight. It is not correct that the financial condition of the Company was not sound because one of the resolutions at the 9th Annual General Meetings was to declare a dividend. Shri Kapadia submitted that the Company wants to disburse the dividend not out of the profits but out of the assets of the Company and declaration of dividend was a ruse to mislead the shareholders. It is not possible to accept the claim made on behalf of the plaintiffs because nothing prevented the plaintiffs to remain present at the Annual General Meeting and raise objections or to impress upon other shareholders the claim of mismanagement. Secondly, the assumption of the plaintiffs that the Board of Directors would siphon of the funds to the concerns of defendants Nos. 2 and 3 is without any foundation. There is not a whisper of complaint in the plaints that defendants Nos. 2 and 3 have previously siphoned away the funds of the Company or had given loans to Body Corporate in which these defendants have any interest. Save and except the averment made in paragraph 11 to which reference is made hereinabove, the plaintiffs have not pointed out any act of defendants Nos. 2 and 3 to create suspicion that Resolution No. 8 at 9th Annual General Meeting was for the purpose of enabling Board of Directors to grant loans to their own concerns. Thirdly, the explanatory statement also recites that the surplus funds may be available during off season and conferring of a power cannot necessarily lead to the inference that the power was to be misused by the Board of Directors. Again, it is not permissible for the plaintiffs who were fully conscious of the business to be transacted at the Annual General Meeting to remain absent and thereafter complain of insufficiency of information or tricky explanation. In our judgment, the challenge to the business conducted in the meetings is without any substance and there is no reason to nullify the resolutions passed at the Annual General Meetings.16. It is required to be mentioned that though the plaintiffs had claimed before the trial Court that the Company had no authority to convene 8th Annual General Meeting after December 1990, the said contention was not pressed by Shri Kapadia during the arguments. The trial Judge negatived the contention by holding that there is no prohibition to hold Annual General Meeting after the statutory period and the only consequence is of penalty payable by the Company. In absence of any arguments on this aspect, it is not necessary to examine the finding. In our judgment, the plaintiffs have not made out any case for grant of relief and accordingly, the appeals as well as Suits Nos. 3002 and 3003 of 1991 must fail in accordance with the consent statements filed by the parties. | 0[ds]It is not possible to accede to the submission of the learned counsel. It is undoubtedly true as held by the Supreme Court that the Director is an agent of the company but the assumption of the plaintiffs that the relationship of principal and agent can be created only by contract is not accurate. The relationship can be created by operation of law and in such cases, the relationship cannot be treated as a contract. The Director is treated as an agent or a trustee by operation of law and not because the Company or shareholders have entered into contractual relationship with the person proposed to be appointed as a Director. We are in agreement with the view expressed by the learned single Judge of Madras High Court that the appointment of additional Director does not amount to a contract as contemplated by S. 300(1) of the Act. It is also not possible to accede to the submission of Shri Kapadia that in any event the appointment of a Director amounts to an arrangement under S. 300(1). The observation of Justice Rajagopalan Ayyangar that the arrangement within the meaning of Section must receive the interpretation that it must be of such a nature as would arise in the case of personal pecuniary nature in the context of the Company is accurate and the expression arrangement must bear the meaning of it as in Ss. 209 and 301 of the Act. S. 301 demands that every Company shall keep one or more registers in which shall be entered separately particulars of all contracts or arrangements and the particulars to be entered are the date of the contract or arrangement, the names of the parties thereto, the principal terms and conditions thereof, etc. It is impossible to accept that the appointment of the Director amounts to an arrangement and it is required to be entered in the Register maintained by the Company under S. 301 of the Act. Shri Cooper pointed out that none of the Companies have entered such appointments in the register maintained under S. 301 of the Act because the arrangement contemplated under S. 300 though directly not a contract must take the colour from the context of contractual relationship contemplated under the Section. The arrangement is something akin to a contract though not strictly a contract as contemplated by the Contract Act. There is one more aspect which cannot be overlooked. What Section 300(1) prescribes is a contractual arrangement entered into by or on behalf of the Company and it is impossible to suggest that appointment of additional Director is by and on behalf of the Company. The Section postulates that the contract or arrangement is by the Company or on behalf of the Company and that means that the Company is one of the contracting party or party to the arrangement. The Company is not a party for making appointment of a person as director; nor the appointment is on behalf of Company. To accept the submission that the appointment of additional Director amounts to contract or arrangement, it would be necessary to conclude that such a contract or arrangement is by or on behalf of the Company, and it is not possible to do so. In our judgment, the contention that defendant No. 3 could not have participated in discussion or vote on the resolution to appoint defendant No. 2 as additional Director in view of prohibition of S. 300(1), therefore, cannot be84 of the Company in that case was almost in the identical terms with Regulation 80. There was a challenge to the resolutions passed convening the Annual General Meeting on the ground that the meeting was convened by de facto Directors. The contention was that there was no duly constituted board which could validly convene the Annual General Meeting of the Company, as the meeting was called by persons who were merely de facto Directors. It was held that the resolution for calling the meeting was passed at the Board meeting; the notice of it was duly sent to every shareholders, and one of the objects of the meeting was to confirm the acts therefore done by persons purporting to act as directors, and in these circumstances, any informality in convening the meeting should be treated as a mere irregularity, and not sufficient to invalidate any resolution passed at the Annual General Meeting. The decision refers to several earlier decisions. In 1968 (2) SCR 252 , 1968 AIR(SC) 772, 1968 (38) CC 543, 1968 (1) CompLJ 275, 1968 (2) ILR(All) 1, (Seth Mohan Lal v. Grain Chambers Ltd., Muzaffarnagar), the scope of Regulation 94 of Table A to the First Schedule of the Companies Act, 1913 and which is similar to Regulation 80 of Table A of schedule I to the Companies Act, 1956 came up for consideration and it was decided that in absence of evidence that the Directors were aware of the disqualification which would be incurred by entering into contracts of sale or purchase or supply of goods with the Company, the resolution passed by the Directors in respect of such contracts cannot be invalidated. In our judgment, even assuming that the resolution appointing defendant No. 2 as additional Director amounts to a contract or an arrangement as covered by S. 300 of the Act, still the appointment of defendant No. 2, at the most, would be irregular due to the participation of defendant No. 3 but the acts done by defendant No. 2 and especially in convening the Annual General Meeting cannot be struck down at the behest of somequestion as to whether Art.88 was attracted arose for determination. The articles of the company provided that the number of directors should not be less than four. The learned Judge found that there were never more than three Directors and the three Directors carried on the business of the Company from the inception. Reliance was placed on Art. 88 to claim that the three continuing Directors can summon the meeting. The contention was not accepted by reliance on two earlier decisions where clear distinction was made between the cases where Directors too few in number can and cannot act as continuing Directors. It was observed :"In one case you have a board insufficient in number from the first, and notwithstanding the continuing clause it was held that the board could not transact business. In the other case you have a board which was originally competent to transact business but was diminished by retirement to a number less than that provided for by the articles. The continuing clause was held to apply and those directors were held to be competent to transact the business of thedecision undoubtedly supports the contention of the defendants that the continuing Directors, i.e. defendants Nos. 3 and 4 were entitled to nominate defendant No. 2 as additional Director and the Board was properly constituted. Reference can be usefully made to decision reported in 1952 (22) CC 324, 1953 AIR(Mad) 467, (Ananthalakshmi Ammal v. Indian Trades and Investments Limited) where Mr. Justice Venkatarama Aiyar, as he then was, held that the power toa Director might be exercised notwithstanding that the strength of the directorate has fallen below the minimum required and below the quorum prescribed by the Articles of Association. In that case, the contention was that there was only one Director, there was no Board of Directors as required by Art. 75 and that, therefore, there could be no validas the power tocould only be exercised by the Board. In answer to the contention, reliance was placed on Art. 81 which provided that the continuing Directors may act notwithstanding any vacancy in their Body but only to ensure that number does not fall below the minimum and except in emergencies. The learned Judge, after considering a large number of English decisions, referred to the decision in 1911 (2) Ch 430 with approval. We are in respectful agreement with the view taken by the Division Bench of Madras High Court. An identical view was taken in 1957 (27) CC 340 : 1956 AIR(Pep) 89 ) (Fateh Chand Kad v. Hindsons (Patiala) Ltd.). It is, therefore, not possible to accede to the submission of Shri Kapadia that the Board of Directors was not properly constituted at the meeting held on January 1, 1991 and the continuing Directors could not have nominated defendant No. 2 as additional Director.Shri Kapadia referred to unreported decision dated January 15, 1991 delivered by single Judge of this Court in Appeal From Order No. 929 of 1990 (Ketan Champaklal Bakshi v. Mrs. Sheela Sidhdharth Balsi). The decision has no application because in that case, the Board was never validly constituted at any stage. The learned Judge held that the principle that the acts done by any person acting as Director are valid when the appointment was afterwards found to be defective has no application to a case where there has been total absence of appointment or fraudulent usurpation of authority and referred to the decision in 1946 (1) AllER 586, 115 LJCh 177, 1946 (16) CC 186, 1946 AC 459, (Morris v. N. Kanseen). The decision of House of Lords in Morris v. Kanssen and others has no application to the facts of the present case, as it is not the claim of the plaintiffs that the Board of Directors was not properly constituted prior to January 1, 1991. In our judgment, the meeting held on January 1, 1991 was legal and valid and the action of defendants Nos. 3 and 4 as continuing Directors in nominating defendant No. 2 as additional Director does not suffer from any infirmity. The contention of the plaintiffs that the signing of the balance sheet and the notices convening 8th and 9th Annual General Meetings of the Company by defendant No. 2 was vitiated and, therefore, the resolutions passed at the meetings should be struck down cannot beis, therefore, necessary to examine the object, purpose and scope of S. 171 of the Act to determine whether the requirement is mandatory or directory. The recommendations of Company Law Committee in Paragraphs 75(i) and 78 of the Report indicates that the period of 21 days was provided instead of 14 days as earlier fixed to enable the shareholders to campaign and canvass the proxies if they so desired. The shareholders required reasonable time to canvass opinion in favour or against the particular resolution proposed to be considered at the meeting of the Company. The object, therefore, is obviously to give proper and reasonable opportunity to the shareholders for participating effectively in the meeting. The length of notice, the contents and the manner of service of notice have all been prescribed with this end in view. The fact that(2) of S. 171 of the Act enables the shareholders to consent for shorter duration of notice is an indication that Legislature never thought the length of notice as sacrosanct.(2) of S. 171 of the Act indicates that it is for the shareholders to consider and decide whether they have got necessary opportunity of properly participating in a meeting.(3) of S. 172 of the Act is an indicator that the Legislature never desired that the proceedings of the meeting should be invalidated merely because notice as prescribed under(1) of S. 171 is of insufficient duration.(3) of S. 172 of the Act provides that the accidental omission to give notice to, or theof notice by, any member should not invalidate the proceedings and that clearly indicates the anxiety of the Legislature not to invalidate the proceedings, even though no prejudice whatsoever is caused to the interest of theTo hold that the provisions of S. 171(1) of the Act are mandatory would lead to very unusual results and making it difficult for large Public Companies to effectively function. A couple ofcannot be permitted to defeat the interest of large body of shareholders by raising contention that the duration of notice was not sufficient and even though such complaints do not indicate any prejudice by service of notice of shorter duration. In our judgment, looking to the object, purpose and scope of provisions o S. 171(1) of the Act, the conclusion is inescapable that the provision is merely directory and not mandatory.Shri Kapadia heavily relied upon the decision reported in 1949 ILR(Mad) 808 : 1949 (19) CC 175, 1951 AIR(Mad) 831, 1 MLJ 662 (2)) (N.V.R. Nagappa Chettiar v. The Madras Race Club) and this judgment requires closer scrutiny. The Madras Race Club is a Body Corporate registered under the Companies Act of 1913 and the business and the object of the Club is to carry on business of Race Club and to provide amenities to the members. There were 260 Club members, of whom 23 were living outside British India. On October 16, 1947, notice was issued to the Club members of the Extraordinary General Meeting convened on November 7, 1947. The notice was posted at Guindy on October 16, 1947. The meeting held on November 7, 1947 and the resolutions passed therein were challenged by two members of the Club by filing a suit for themselves and on behalf of other members of the Club after obtaining permission under Order I, rule 8 of the Code of Civil Procedure. A declaration was sought that the meeting was invalid and void and all business transacted thereat was invalid, null and void and one of the contention in support of the declaration was that the notice of the meeting contravened the provisions of S. 81(2) of the Companies Act, 1913 as 21 days were not allowed between the date of the meeting and the receipt of the notice. The trial Judge concluded that though there was some irregularity at the meeting there was no illegality in the proceedings of the meeting and the resolutions were validly passed. The plaintiffs carried an appeal and the Division Bench held that the provision was mandatory and the meeting was not legally convened. The contention that the plaintiffs had not remained present at the meeting and, therefore, must be deemed to have waived the objection was turned down on the ground that such a plea was not specifically raised in the written statement, nor any issue was framed. While examining the contention that the shareholders can dispense with by agreement the duration of the notice, it was observed that the agreement must be of all the members of the Club and it was not enough that the members present at the meeting either expressly or impliedly consented to or acquiesced in shortening the period of notice. According to the Division Bench of Madras High Court, an express consent of all the members to waive the notice must be established and even if the members present at the meeting agreed to waive the defect, that would not cure the defect and the meeting would not be invalid. Shri Kapadia submitted that the decision of the Madras High Court, entirely supports the submission and it should be concluded that two Annual General Meetings convened were not valid meetings and the resolutions passed therein are ineffective. With respect, we are unable to share the view of Madras High Court.A contrary view has been taken by two Calcutta decisions and to which we will immediately refer. The first decision is reported in 1973 (1) ILR(Cal) 207 (Surajmull Nagarmull v. Shew Bhagwan Jalan). Mr. Justice A. N. Sen, as he then was, by detailed judgment examined the ambit and scope of Sections 171 and 172 of the Act. The learned Judge held that Sections 171 to 186 of the Companies Act apply to the meetings of the Company and have been enacted for the proper holding of the meetings, the object being to ensure that the members of the Company get necessary and proper opportunity of attending and presenting their views effectively at the meeting. Examining the ambit of Section 171 (2) of the Act, the learned Judge held that the notice of short duration in breach of provisions of(1) of Section 171 of the Act does not necessarily lead to voiding of the meeting and rendering the proceedings illegal, ineffective and void. The learned Judge disagreed with the observations of the Madras High Court and held that prior consent of the members would completely render(2) of Section 171 nugatory and seeking such prior consent may make waste of valuable time. The learned Judge held that consent referred need not necessarily be obtained before calling any meeting and the consent may be obtained before or after calling of the meeting and also at the meeting. The consent need not be express or in writing and may be implied and inferred from the conduct of the members. The learned Judge then examined the provisions of Section 171 and held that the provision is clearly directory and not mandatory. It was observed that the provision is not so imperative that the requirement thereof cannot be waived at all and is not mandatory in the sense that any breach thereof will necessarily and invariably invalidate the meetings and the proceedings thereof. The learned Judge observed that noncompliance with the statutory requirement of Section 171(1) of the Act may render the proceedings voidable and in appropriate cases any such breach may have the effect of invalidating the meeting and the proceedings thereat. We are in entire agreement with the reasonings and the conclusions reached by the learned Judge in regard to the ambit of Sections 171, 172 and 173(2) of the Act. The decision of the learned Judge was considered and followed by Division Bench of Calcutta High Court in the case reported in 1985 (58) CC 275, 1984 TaxLR 2163, 1984 (3) CompLJ 305 : 1985 (58) CC 275, 1984 TaxLR 2163, 1984 (3) CompLJ 305, (Calcutta Chemical Co. Ltd. v. Dhiresh Chandra Roy). An identical view was also taken by Delhi High Court in the decision reported in 1986 (60) CC 353, 1985 TaxLR 39 : 1986 (60) CC 353, 1985 TaxLR 39 (Maharaja Exports v. Apparels Exports Promotion Council). In our judgment the Calcutta decision lays down the correct law and the view of the Madras High Court is very technical and would lead to a very drastic problems in running the affairs of the Public Limited Companies. It hardly requires to be stated that the Public Limited Companies have got large number of shareholders and if a couple of shareholders are permitted to challenge the legality of the proceedings of the meetings on the ground of insufficiency of notice, and that too without indicating any prejudice, then it would be impossible to efficiently run the administration of Public Limited Companies. The view taken by Madras High Court while considering the case of members of the Race Club, who were few in number did not consider the serious repercussions which would follow in case of Public Limited Companies having a large number ofsubmission is not accurate because even if the provision is held to be directory, that does not confer a charter on the Company to serve notice of any duration according to their choice. Even if the provision is directory, it does not permit the Company tothe statutory requirement and in every case where a breach is complained of, the Court will have to examine whether the proceedings should be invalidated or otherwise. The learned Counsel felt that a Company make give notice of 4 or 5 days and will try to sustain the validity of the proceedings. It is impossible to assume that the Court will close eyes to the reality and accept the claim that notice of even one day is enough. The Court will not proceed to invalidate the proceedings on the ground of insufficient duration of notice only when it is established that defect is not intentional or deliberate and no prejudice whatsoever is caused to a particular case by shorter duration of notice. It would be necessary for a party complaining of insufficient duration of notice to plead prejudice caused and in case such prejudice is established, then even though the provision is directory, the Court would grant the relief.It is obvious that the plaintiffs never made complaint of any prejudice suffered because of shorter duration of notice and the contention urged by Shri Kapadia with reference to the correspondence is imaginery. In 1928 AIR(PC) 180 (Parashuram Detaram Shamdasani v. Tata Industrial Bank Ltd.), it was held that the shareholders knowing the work to be transacted at the meeting and remaining absent cannot subsequently complain about insufficiency of notice for convening the meeting. In our judgment, the plaintiffs have not suffered any prejudice whatsoever by notice being of only 20 clear days instead of 21 clear days and it is obvious that the plaintiffs are set up by Arunkumar Poddar who has persona1 quarrels with defendants Nos. 2 and 3 who are his real brothers. The share holding of the plaintiffs is extremely negligible being 0.3% and it would be entirely unreasonable to invalidate the business transacted at the Annual General Meeting at the behest of these few shareholders and to the detriment of large body of shareholders who had unanimously approved the resolutions moved at the meetings. We enquired from the learned Counsel as to which resolution passed at the meeting affects the interest of the plaintiffs and the grievance seems to be only about the issuance of right shares after increasing authorised share capital and conferring power on the Board of Directors to make loans to any Body Corporate. The issuance of the right shares to all the existing shareholders can by no stretch of imagination affects the interests of the shareholders, nor would change the controlling pattern of share holding of the Company. The grievance about conferring power upon the Board of Directors to make loans to Body Corporate is the apprehension that the Directors may give loans to firms and Companies in which they have interest. More about it at a later stage, but the prejudice complained of seems to be only of Arunkumar Poddar who has personal complaints against defendants Nos. 2 and 3 and we are not, at all, impressed by the claim made by the learned Counsel that service of notice of 20 clear days has causedare unable to find any merit in the contention. The Directors Report clearly recites that information as per Section 217 of the Act is supplied and Notes Nos. 5 to 8, which counsel laid stress refer to estimated gratuity and liability, sundry debts, and interest on overdue bills and, in our judgment, the information supplied cannot be said to be insufficient so as to make it impossible for the shareholders to pass theis not possible to find any merit in the contention for more than one reason. In the first instance, the claim that the financial health of the Company was not sound cannot be accepted merely because in the meeting held on January 1, 1991, one of the reasons given for nominating Santoshkumar was to overcome the recession in the market and which was due to Gulf War and money conditions being tight. It is not correct that the financial condition of the Company was not sound because one of the resolutions at the 9th Annual General Meetings was to declare a dividend.It is not possible to accept the claim made on behalf of the plaintiffs because nothing prevented the plaintiffs to remain present at the Annual General Meeting and raise objections or to impress upon other shareholders the claim of mismanagement. Secondly, the assumption of the plaintiffs that the Board of Directors would siphon of the funds to the concerns of defendants Nos. 2 and 3 is without any foundation. There is not a whisper of complaint in the plaints that defendants Nos. 2 and 3 have previously siphoned away the funds of the Company or had given loans to Body Corporate in which these defendants have any interest. Save and except the averment made in paragraph 11 to which reference is made hereinabove, the plaintiffs have not pointed out any act of defendants Nos. 2 and 3 to create suspicion that Resolution No. 8 at 9th Annual General Meeting was for the purpose of enabling Board of Directors to grant loans to their own concerns. Thirdly, the explanatory statement also recites that the surplus funds may be available during off season and conferring of a power cannot necessarily lead to the inference that the power was to be misused by the Board of Directors. Again, it is not permissible for the plaintiffs who were fully conscious of the business to be transacted at the Annual General Meeting to remain absent and thereafter complain of insufficiency of information or tricky explanation. In our judgment, the challenge to the business conducted in the meetings is without any substance and there is no reason to nullify the resolutions passed at the Annual General Meetings.16. It is required to be mentioned that though the plaintiffs had claimed before the trial Court that the Company had no authority to convene 8th Annual General Meeting after December 1990, the said contention was not pressed by Shri Kapadia during the arguments. The trial Judge negatived the contention by holding that there is no prohibition to hold Annual General Meeting after the statutory period and the only consequence is of penalty payable by the Company. In absence of any arguments on this aspect, it is not necessary to examine the finding. In our judgment, the plaintiffs have not made out any case for grant of relief and accordingly, the appeals as well as Suits Nos. 3002 and 3003 of 1991 must fail in accordance with the consent statements filed by theare not inclined to continue the interim relief because the complaint about enforcement of resolution passed at the two Annual General Meetings is principally in respect of only two items, viz. (a) issuance of right shares, and (b) conferring power upon the Board of Directors to give loans. We do not find that even if these two resolutions are enforced, any prejudice whatsoever will be caused to the plaintiffs. The right shares are issued to the existing shareholders at par and issuance of such shares are not likely to affect the controlling pattern of the Company. The apprehension that the shareholders may transfer the shares and interest of third party may come in is without any merit. The conferring of power on the Board of Directors to grant loans to Body Corporate also is not going to affect the interests of the plaintiffs as there are several restrictions prescribed under the Act before grant of loan. | 0 | 13,182 | 4,865 | ### Instruction:
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reported in 1973 (43) CC 17 : 1972 AIR(Bom) 276 ) (Laljibhai C. Kapadia v. Lalji B. Desai) and the decision reported in 1964 (34) CC 777, 1965 AIR(GUJ) 96, 1965 AIR(Gujarat) 96, 1964 (1) CompLJ 326 , (Mohanlal Ganpatram v. Shri Sayaji Jubilee Cotton and Jute Mills Co. Ltd.). The learned Counsel urged that Item 8 of the 9th Annual Report sets out a resolution conferring power upon the Board of Directors to make any loan to any Body Corporate from time to time on such terms and conditions as the Directors may deem fit provided that the aggregate of the loans outstanding at any one time made to the Company shall not exceed 30% of the aggregate of the subscribed share capital. The explanatory note to Item No. 8 sets out that in the course of business, the Company may have to make loan or deposits, etc. to bodies, corporates in excess of the limits and Section 370 of the Act provides that no Company shall make any loan or loans to any Body Corporate in excess of the limits by Central Government unless making of such loans has been previously authorised by a special resolution of the lending Company. The explanatory note recites that the Company may have surplus funds during off season and which the Board of Directors may utilise for giving loans and it is, therefore, advisable in the interest of the Company to obtain consent of the members by special resolution. Shri Kapadia complains that the explanation is a tricky one because the claim that the Company may have surplus funds is totally false. Reference was made to the minutes of the meeting held on January 1, 1991 and at which meeting Santoshkumar was appointed as Additional Director. One of the reasons set out for appointing Santoshkumar was that the business of the Company of manufacturing cotton printed sarees and texturised/twisted yarn and P.O.Y. was undergoing recession and the Company under the circumstances of the crisis has trying time ahead and Santoshkumar can help the Company to come out of the crisis. Shri Kapadia submits that this reason is indicative of the fact that the financial state of the Company was not healthy and if that is so, it is impossible to imagine that the Company may have surplus funds as set out in the explanatory statement. It was urged that the power was sought by the Board of Directors only with a view to siphon away the funds of the Company to the concerns in which defendants Nos. 2 and 3 have control and interest. The learned Counsel urged that the fact that the Company did not give a truthful explanation is sufficient to invalidate the resolutions passed at the meetings. It is not possible to find any merit in the contention for more than one reason. In the first instance, the claim that the financial health of the Company was not sound cannot be accepted merely because in the meeting held on January 1, 1991, one of the reasons given for nominating Santoshkumar was to overcome the recession in the market and which was due to Gulf War and money conditions being tight. It is not correct that the financial condition of the Company was not sound because one of the resolutions at the 9th Annual General Meetings was to declare a dividend. Shri Kapadia submitted that the Company wants to disburse the dividend not out of the profits but out of the assets of the Company and declaration of dividend was a ruse to mislead the shareholders. It is not possible to accept the claim made on behalf of the plaintiffs because nothing prevented the plaintiffs to remain present at the Annual General Meeting and raise objections or to impress upon other shareholders the claim of mismanagement. Secondly, the assumption of the plaintiffs that the Board of Directors would siphon of the funds to the concerns of defendants Nos. 2 and 3 is without any foundation. There is not a whisper of complaint in the plaints that defendants Nos. 2 and 3 have previously siphoned away the funds of the Company or had given loans to Body Corporate in which these defendants have any interest. Save and except the averment made in paragraph 11 to which reference is made hereinabove, the plaintiffs have not pointed out any act of defendants Nos. 2 and 3 to create suspicion that Resolution No. 8 at 9th Annual General Meeting was for the purpose of enabling Board of Directors to grant loans to their own concerns. Thirdly, the explanatory statement also recites that the surplus funds may be available during off season and conferring of a power cannot necessarily lead to the inference that the power was to be misused by the Board of Directors. Again, it is not permissible for the plaintiffs who were fully conscious of the business to be transacted at the Annual General Meeting to remain absent and thereafter complain of insufficiency of information or tricky explanation. In our judgment, the challenge to the business conducted in the meetings is without any substance and there is no reason to nullify the resolutions passed at the Annual General Meetings.16. It is required to be mentioned that though the plaintiffs had claimed before the trial Court that the Company had no authority to convene 8th Annual General Meeting after December 1990, the said contention was not pressed by Shri Kapadia during the arguments. The trial Judge negatived the contention by holding that there is no prohibition to hold Annual General Meeting after the statutory period and the only consequence is of penalty payable by the Company. In absence of any arguments on this aspect, it is not necessary to examine the finding. In our judgment, the plaintiffs have not made out any case for grant of relief and accordingly, the appeals as well as Suits Nos. 3002 and 3003 of 1991 must fail in accordance with the consent statements filed by the parties.
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by notice being of only 20 clear days instead of 21 clear days and it is obvious that the plaintiffs are set up by Arunkumar Poddar who has persona1 quarrels with defendants Nos. 2 and 3 who are his real brothers. The share holding of the plaintiffs is extremely negligible being 0.3% and it would be entirely unreasonable to invalidate the business transacted at the Annual General Meeting at the behest of these few shareholders and to the detriment of large body of shareholders who had unanimously approved the resolutions moved at the meetings. We enquired from the learned Counsel as to which resolution passed at the meeting affects the interest of the plaintiffs and the grievance seems to be only about the issuance of right shares after increasing authorised share capital and conferring power on the Board of Directors to make loans to any Body Corporate. The issuance of the right shares to all the existing shareholders can by no stretch of imagination affects the interests of the shareholders, nor would change the controlling pattern of share holding of the Company. The grievance about conferring power upon the Board of Directors to make loans to Body Corporate is the apprehension that the Directors may give loans to firms and Companies in which they have interest. More about it at a later stage, but the prejudice complained of seems to be only of Arunkumar Poddar who has personal complaints against defendants Nos. 2 and 3 and we are not, at all, impressed by the claim made by the learned Counsel that service of notice of 20 clear days has causedare unable to find any merit in the contention. The Directors Report clearly recites that information as per Section 217 of the Act is supplied and Notes Nos. 5 to 8, which counsel laid stress refer to estimated gratuity and liability, sundry debts, and interest on overdue bills and, in our judgment, the information supplied cannot be said to be insufficient so as to make it impossible for the shareholders to pass theis not possible to find any merit in the contention for more than one reason. In the first instance, the claim that the financial health of the Company was not sound cannot be accepted merely because in the meeting held on January 1, 1991, one of the reasons given for nominating Santoshkumar was to overcome the recession in the market and which was due to Gulf War and money conditions being tight. It is not correct that the financial condition of the Company was not sound because one of the resolutions at the 9th Annual General Meetings was to declare a dividend.It is not possible to accept the claim made on behalf of the plaintiffs because nothing prevented the plaintiffs to remain present at the Annual General Meeting and raise objections or to impress upon other shareholders the claim of mismanagement. Secondly, the assumption of the plaintiffs that the Board of Directors would siphon of the funds to the concerns of defendants Nos. 2 and 3 is without any foundation. There is not a whisper of complaint in the plaints that defendants Nos. 2 and 3 have previously siphoned away the funds of the Company or had given loans to Body Corporate in which these defendants have any interest. Save and except the averment made in paragraph 11 to which reference is made hereinabove, the plaintiffs have not pointed out any act of defendants Nos. 2 and 3 to create suspicion that Resolution No. 8 at 9th Annual General Meeting was for the purpose of enabling Board of Directors to grant loans to their own concerns. Thirdly, the explanatory statement also recites that the surplus funds may be available during off season and conferring of a power cannot necessarily lead to the inference that the power was to be misused by the Board of Directors. Again, it is not permissible for the plaintiffs who were fully conscious of the business to be transacted at the Annual General Meeting to remain absent and thereafter complain of insufficiency of information or tricky explanation. In our judgment, the challenge to the business conducted in the meetings is without any substance and there is no reason to nullify the resolutions passed at the Annual General Meetings.16. It is required to be mentioned that though the plaintiffs had claimed before the trial Court that the Company had no authority to convene 8th Annual General Meeting after December 1990, the said contention was not pressed by Shri Kapadia during the arguments. The trial Judge negatived the contention by holding that there is no prohibition to hold Annual General Meeting after the statutory period and the only consequence is of penalty payable by the Company. In absence of any arguments on this aspect, it is not necessary to examine the finding. In our judgment, the plaintiffs have not made out any case for grant of relief and accordingly, the appeals as well as Suits Nos. 3002 and 3003 of 1991 must fail in accordance with the consent statements filed by theare not inclined to continue the interim relief because the complaint about enforcement of resolution passed at the two Annual General Meetings is principally in respect of only two items, viz. (a) issuance of right shares, and (b) conferring power upon the Board of Directors to give loans. We do not find that even if these two resolutions are enforced, any prejudice whatsoever will be caused to the plaintiffs. The right shares are issued to the existing shareholders at par and issuance of such shares are not likely to affect the controlling pattern of the Company. The apprehension that the shareholders may transfer the shares and interest of third party may come in is without any merit. The conferring of power on the Board of Directors to grant loans to Body Corporate also is not going to affect the interests of the plaintiffs as there are several restrictions prescribed under the Act before grant of loan.
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R.D. Gupta Vs. Union of India | 81, 871.67 P. but when the matter went up before Mr. Nath, he raised 17 disputes and enhanced his claim to Rs. 27, 92, 674.80 P. Thereafter before Mr. Dutt he raised his claim to Rs. 48, 65, 295.24 P. Mr. Dutt allowed a sum of Rs. 16 lakhs and odd 3. The Assistant to the Deputy Commissioner set aside the award on the ground that the arbitrator had exceeded his jurisdiction. That order was affirmed by the appellant authority as well as by the High Court. Hence this appeal by special leave 4. The appellant, Mr. Gupta, who appeared in person contended before us that the finding of the High Court and the courts below that Mr. Dutt had exceeded his jurisdiction is erroneous as the reference to Mr. Dutt was under Section 20 of the Arbitration Act and not under Section 8, of the said Act. It is not disputed that if the appointment of Mr. Nath was under Section 8 of the Arbitration Act, Mr. Dutt had undoubtedly exceeded his jurisdiction. From the facts stated earlier, it is clear that at first Mr. Nath and later Mr. Dutt were appointed in place of Mr. Mittal. When the Superintending Engineer appointed Mr. Mittal to be the arbitrator there were only six disputes before him and the total claim made was just about three lakhs. No other dispute had been raised before the Superintending Engineer nor any application under Section 20 of the Arbitration Act had been made before any Court. Hence prima facie Mr. Dutt exceeded his jurisdiction in awarding a sum of rupees over sixteen lakhs to the appellant. It is not the contention of the appellant that at any stage he had filed an application under Section 20 of the Arbitration Act nor is it his case that he had raised any dispute other than the six disputes referred to earlier before the Superintending Engineer 5. The appellant contended that the plea taken by the Union of India that Mr. Dutt had exceeded his jurisdiction is barred by res judicata. His contention was that when the dispute was pending before Mr. Nath, the Union of India had taken the plea that he had no jurisdiction to proceed with the arbitration and in that connection Mr. Nath had made a reference to the Assistant to the Deputy Commissioner to decide whether he had jurisdiction or not to proceed with the arbitration. In that connection the Assistant to the Deputy Commissioner had decided that he had jurisdiction to proceed with arbitration as the reference was under Section 20 of the Arbitration Act. We are unable to accept the contention of the appellant that the plea relating to the jurisdiction of the arbitrator taken by the Union of India is barred by the principles of res judicata. When the dispute about the appointment of Mr. Nath was taken to the High Court and thereafter brought to this Court to which reference has been made earlier both the High Court as well as this Court held that Mr. Naths appointment was under Section 8 of the Arbitration Act. Therefore the observation of the Assistant to the Deputy Commissioner that it was a reference under Section 20 has no value. On that aspect of the case, the matter is concluded by the decision of the High Court as well as of this Court 6. The appellant next contended that the application made on behalf of the Union of India to set aside the award having been signed by the Executive Engineer, the same could not have been entertained by the Assistant to the Deputy Commissioner. We see no substance in this contention. By means of notifications issued under Rules 1 and 2 of Or. 27, Code of Civil Procedure, the Superintending Engineer and the Executive Engineer in the N.E.F.A. had been authorised by the Union of India to sign pleadings on its behalf as well as to act on its behalf. The contention that the provisions of Code of Civil Procedure do not apply to proceedings under the Arbitration Act is untenable in view of Section 41 of that Act 7. The last contention taken by the appellant was that the application made on behalf of the Union of India to set aside the award is barred by limitation. As seen earlier, the award had been filed in Court on May 26, 1966, and a notice of the filing of the award was served on the Union of Indian on May 30, 1966. The petition to set aside the award was made on June 27, 1966. Therefore, prima facie the petition was in time having been filed within thirty days from the date of service of the notice of filing of the award. But what is said on behalf of the appellant is that on the very day the award was filed into Court, the Assistant to the Deputy Commissioner passed the following order "Arbitrator has filed the award alongwith the record of proceedings and his bill is amounting to Rs. 7, 163. Issue notice on the parties fixing 14-7-1966." This order was shown to Mr. L. P. Changakakoti, Government Advocate and his signatures obtained. This amounted to a service of a notice under Section 14(2) of the Act. Hence the petition filed on June 27, 1966 must be held to be barred. It is true that notice under Section 14(2) of the Act need not be in writing but we are unable to accept the contention that the information give to Mr. Changakakoti amounts to a notice to the Government under Section 14(2) of the Arbitration Act. All that Mr. Changakakoti was told was that a written notice of the filing of the award will be given to the Government though he had come to know that the award had been filed into Court. Under the circumstances we are unable to hold that the information given to Mr. Changakakoti amounted to a notice under Section 14(2) of the Arbitration Act | 0[ds]We see no substance in this contention. By means of notifications issued under Rules 1 and 2 of Or. 27, Code of Civil Procedure, the Superintending Engineer and the Executive Engineer in the N.E.F.A. had been authorised by the Union of India to sign pleadings on its behalf as well as to act on its behalf. The contention that the provisions of Code of Civil Procedure do not apply to proceedings under the Arbitration Act is untenable in view of Section 41 of that Act7. The last contention taken by the appellant was that the application made on behalf of the Union of India to set aside the award is barred by limitation.As seen earlier, the award had been filed in Court on May 26, 1966, and a notice of the filing of the award was served on the Union of Indian on May 30, 1966. The petition to set aside the award was made on June 27, 1966. Therefore, prima facie the petition was in time having been filed within thirty days from the date of service of the notice of filing of the award. But what is said on behalf of the appellant is that on the very day the award was filed into Court, the Assistant to the Deputy Commissioner passed the following orderThis order was shown to Mr. L. P. Changakakoti, Government Advocate and his signatures obtained. This amounted to a service of a notice under Section 14(2) of the Act. Hence the petition filed on June 27, 1966 must be held to be barred. It is true that notice under Section 14(2) of the Act need not be in writing but we are unable to accept the contention that the information give to Mr. Changakakoti amounts to a notice to the Government under Section 14(2) of the Arbitration Act. All that Mr. Changakakoti was told was that a written notice of the filing of the award will be given to the Government though he had come to know that the award had been filed into Court. Under the circumstances we are unable to hold that the information given to Mr. Changakakoti amounted to a notice under Section 14(2) of the Arbitration Act | 0 | 2,009 | 407 | ### 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:
81, 871.67 P. but when the matter went up before Mr. Nath, he raised 17 disputes and enhanced his claim to Rs. 27, 92, 674.80 P. Thereafter before Mr. Dutt he raised his claim to Rs. 48, 65, 295.24 P. Mr. Dutt allowed a sum of Rs. 16 lakhs and odd 3. The Assistant to the Deputy Commissioner set aside the award on the ground that the arbitrator had exceeded his jurisdiction. That order was affirmed by the appellant authority as well as by the High Court. Hence this appeal by special leave 4. The appellant, Mr. Gupta, who appeared in person contended before us that the finding of the High Court and the courts below that Mr. Dutt had exceeded his jurisdiction is erroneous as the reference to Mr. Dutt was under Section 20 of the Arbitration Act and not under Section 8, of the said Act. It is not disputed that if the appointment of Mr. Nath was under Section 8 of the Arbitration Act, Mr. Dutt had undoubtedly exceeded his jurisdiction. From the facts stated earlier, it is clear that at first Mr. Nath and later Mr. Dutt were appointed in place of Mr. Mittal. When the Superintending Engineer appointed Mr. Mittal to be the arbitrator there were only six disputes before him and the total claim made was just about three lakhs. No other dispute had been raised before the Superintending Engineer nor any application under Section 20 of the Arbitration Act had been made before any Court. Hence prima facie Mr. Dutt exceeded his jurisdiction in awarding a sum of rupees over sixteen lakhs to the appellant. It is not the contention of the appellant that at any stage he had filed an application under Section 20 of the Arbitration Act nor is it his case that he had raised any dispute other than the six disputes referred to earlier before the Superintending Engineer 5. The appellant contended that the plea taken by the Union of India that Mr. Dutt had exceeded his jurisdiction is barred by res judicata. His contention was that when the dispute was pending before Mr. Nath, the Union of India had taken the plea that he had no jurisdiction to proceed with the arbitration and in that connection Mr. Nath had made a reference to the Assistant to the Deputy Commissioner to decide whether he had jurisdiction or not to proceed with the arbitration. In that connection the Assistant to the Deputy Commissioner had decided that he had jurisdiction to proceed with arbitration as the reference was under Section 20 of the Arbitration Act. We are unable to accept the contention of the appellant that the plea relating to the jurisdiction of the arbitrator taken by the Union of India is barred by the principles of res judicata. When the dispute about the appointment of Mr. Nath was taken to the High Court and thereafter brought to this Court to which reference has been made earlier both the High Court as well as this Court held that Mr. Naths appointment was under Section 8 of the Arbitration Act. Therefore the observation of the Assistant to the Deputy Commissioner that it was a reference under Section 20 has no value. On that aspect of the case, the matter is concluded by the decision of the High Court as well as of this Court 6. The appellant next contended that the application made on behalf of the Union of India to set aside the award having been signed by the Executive Engineer, the same could not have been entertained by the Assistant to the Deputy Commissioner. We see no substance in this contention. By means of notifications issued under Rules 1 and 2 of Or. 27, Code of Civil Procedure, the Superintending Engineer and the Executive Engineer in the N.E.F.A. had been authorised by the Union of India to sign pleadings on its behalf as well as to act on its behalf. The contention that the provisions of Code of Civil Procedure do not apply to proceedings under the Arbitration Act is untenable in view of Section 41 of that Act 7. The last contention taken by the appellant was that the application made on behalf of the Union of India to set aside the award is barred by limitation. As seen earlier, the award had been filed in Court on May 26, 1966, and a notice of the filing of the award was served on the Union of Indian on May 30, 1966. The petition to set aside the award was made on June 27, 1966. Therefore, prima facie the petition was in time having been filed within thirty days from the date of service of the notice of filing of the award. But what is said on behalf of the appellant is that on the very day the award was filed into Court, the Assistant to the Deputy Commissioner passed the following order "Arbitrator has filed the award alongwith the record of proceedings and his bill is amounting to Rs. 7, 163. Issue notice on the parties fixing 14-7-1966." This order was shown to Mr. L. P. Changakakoti, Government Advocate and his signatures obtained. This amounted to a service of a notice under Section 14(2) of the Act. Hence the petition filed on June 27, 1966 must be held to be barred. It is true that notice under Section 14(2) of the Act need not be in writing but we are unable to accept the contention that the information give to Mr. Changakakoti amounts to a notice to the Government under Section 14(2) of the Arbitration Act. All that Mr. Changakakoti was told was that a written notice of the filing of the award will be given to the Government though he had come to know that the award had been filed into Court. Under the circumstances we are unable to hold that the information given to Mr. Changakakoti amounted to a notice under Section 14(2) of the Arbitration Act
### Response:
0
### Explanation:
We see no substance in this contention. By means of notifications issued under Rules 1 and 2 of Or. 27, Code of Civil Procedure, the Superintending Engineer and the Executive Engineer in the N.E.F.A. had been authorised by the Union of India to sign pleadings on its behalf as well as to act on its behalf. The contention that the provisions of Code of Civil Procedure do not apply to proceedings under the Arbitration Act is untenable in view of Section 41 of that Act7. The last contention taken by the appellant was that the application made on behalf of the Union of India to set aside the award is barred by limitation.As seen earlier, the award had been filed in Court on May 26, 1966, and a notice of the filing of the award was served on the Union of Indian on May 30, 1966. The petition to set aside the award was made on June 27, 1966. Therefore, prima facie the petition was in time having been filed within thirty days from the date of service of the notice of filing of the award. But what is said on behalf of the appellant is that on the very day the award was filed into Court, the Assistant to the Deputy Commissioner passed the following orderThis order was shown to Mr. L. P. Changakakoti, Government Advocate and his signatures obtained. This amounted to a service of a notice under Section 14(2) of the Act. Hence the petition filed on June 27, 1966 must be held to be barred. It is true that notice under Section 14(2) of the Act need not be in writing but we are unable to accept the contention that the information give to Mr. Changakakoti amounts to a notice to the Government under Section 14(2) of the Arbitration Act. All that Mr. Changakakoti was told was that a written notice of the filing of the award will be given to the Government though he had come to know that the award had been filed into Court. Under the circumstances we are unable to hold that the information given to Mr. Changakakoti amounted to a notice under Section 14(2) of the Arbitration Act
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NATIONAL INSURANCE COMPANY LTD Vs. BIRENDER | Rule 5(2) stipulates that the family pension as per the normal rules would be payable to the family members only after the period of delivery of financial assistance is completed. The validity of this provision is not put in issue. Suffice it to say that the view taken by the High Court in Ajmero (supra) is a departure from the scheme envisaged by the 2006 Rules, in particular, Rule 5(2). That cannot be countenanced. 18. As a matter of fact, in the present case, the High Court committed manifest error in assuming that the respondent Nos. 1 and 2 would be eligible to receive financial assistance under the 2006 Rules. The eligibility to receive such financial assistance has been spelt out in Rule 3 of the 2006 Rules read with the provision of Pension/Family Pension Scheme, 1964. It appears that major sons and married daughters are not included in the definition. However, we need not dilate on that aspect in the present proceedings any further. It has come in the evidence of Gobind Singh, Clerk in SDM Office (PW-1) that the legal representatives of the deceased have not submitted any request for getting financial assistance till he had deposed. Indeed, respondent No. 1, who had entered the witness box, did depose that they had applied for getting salary of their deceased mother. The fact remains that there is no clear evidence on record that respondent Nos. 1 and 2 are held to be eligible to get financial assistance or in fact, they are getting such financial assistance under the 2006 Rules. The High Court, therefore, instead of providing for deduction of the amount receivable by the legal representatives of the deceased on this count (under the 2006 Rules), from the compensation amount, should have independently determined the compensation amount and ordered payment thereof subject to legal representatives of the deceased filing affidavit/declaration before the executing Court that they have not received nor would they claim any amount towards financial assistance under the 2006 Rules, so as to become entitled to withdraw the entire compensation amount. 19. Reverting to the determination of compensation amount, it is noticed that the Tribunal proceeded to determine the compensation amount on the basis of net-salary drawn by the deceased for the relevant period as Rs.16,918/- per month, while taking note of the fact that her gross-salary was Rs.23,123/- per month (presumably below taxable income). Concededly, any deduction from the gross- salary other than tax amount cannot be reckoned. In that, the actual salary less tax amount ought to have been taken into consideration by the Tribunal for determining the compensation amount, in light of the dictum of the Constitution Bench of this Court in paragraph 59.3 of Pranay Sethi (supra). 20. Similarly, the High Court despite having taken note of the submission made by the respondent Nos. 1 and 2 that the deduction for personal expenses of the deceased should be reckoned only as one-third (1/3 rd ) amount for determining loss of dependency, maintained the deduction of 50% towards that head as ordered by the Tribunal. This Court in Pranay Sethi (supra), in paragraph 37, adverted to the dictum of this Court in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 ( para 30) with approval, wherein it is held that if the dependant family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one-third (1/3 rd ). In other words, the deduction towards personal expenses to the extent of 50% is excessive and not just and proper considering the fact that the respondent Nos. 1 and 2 alongwith their respective families were staying with the deceased at the relevant time and were largely dependant on her income. 21. Be that as it may, the Tribunal, for excluding the amount received by the deceased as family pension due to demise of her husband, had noted in paragraph 26, as under: - 26. Learned counsel for the claimants further requested that about to family pension being drawn by the deceased also be calculated for the purpose of assessing the compensation. This contention and assertion of learned counsel for the claimants does not carry any conviction with the Tribunal because the deceased was getting family pension in her own right as the widow of the deceased and cannot be termed as her income for the purpose of computing the amount of compensation. The High Court, without reversing the said finding, proceeded to include the amount of Rs.7,000/- per month received by the deceased as pension amount after demise of her husband. We are in agreement with the view taken by the Tribunal and for the same reason, have to reverse the conclusion recorded by the High Court to include the said amount as loss of dependency. That could not have been taken into account, as the same was payable only to the deceased being widow and not her income as such for the purpose of computing the amount of compensation. 22. Considering the above, respondent Nos. 1 and 2 would be entitled for compensation to be reckoned on the basis of loss of dependency, due to loss of gross salary (less tax amount, if any) of the deceased and future prospects and deduction of only one-third (1/3 rd ) amount towards personal expenses of the deceased. As regards the multiplier 13 applied by the Tribunal and the High Court, the same needs no interference. As a result, on the facts and in the circumstances of this case, the amount payable towards compensation will have to be recalculated on the following basis: - Loss of dependency due to loss of income calculated at Rs.31,26,229.60/- [(Rs.23,123/- x 12 x 13) + (30% future prospects) – (1/3 rd deduction for personal expenses)]. In addition, the claimants would be entitled for a sum of Rs.70,000/- towards conventional heads in terms of dictum in paragraph 59.8 of Pranay Sethi (supra). | 1[ds]14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression legal representative of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representativeIn paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between right to apply for compensation and entitlement to compensation. The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression legal representative of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal. Notably, the expression legal representative has not been defined in the ActThe learned Judge of the High Court has, however, after adverting to the decision of the same High Court in Ajmero (supra), went on to observe that 50% of the amount receivable by the legal representatives of the deceased towards financial assistance under the 2006 Rules is required to be deducted from the compensation amount. In the relied upon decision, the same learned Judge had occasion to observe as follows: -… However, perusal of the judgment would reveal that the Court has not adverted to the issue that had the Rules of 2006 extending assistance to family of a deceased employee been not in existence, family would have been entitled to pension to the extent of 50% of the last drawn pay. As per the settled position in law, the pensionary benefits available to family of a deceased employee are not amenable for deduction for computing loss of dependency. There is nothing on record suggestive of the fact that in addition to compassionate assistance under the Rules, family of the deceased is being paid pension till the age of superannuation. Rather Rule 5(2) of the 2006 Rules specifically denies family pension as per normal rules17. The view so taken by the High Court is not the correct reading of the decision of three-Judge Bench of this Court in Shashi Sharma (supra) for more than one reason. First, this Court was conscious of the fact that under Rule 5(2) of the 2006 Rules, the family pension receivable by the family would be payable, however, only after the period, during which the financial assistance is received, is completed. In that context, in paragraph 24 of the reported decision, the Court clearly noted that the amount towards family pension cannot be deducted from the claim amount for determination of a just compensation under the Act. Further, the High Court has erroneously assumed that the family of the deceased would be entitled for family pension amount immediately after the death of the deceased employee. That is in the teeth of the scheme of the 2006 Rules, in particular Rule 5(2) thereof. The said Rules provide for financial assistance on compassionate grounds, as also, other benefits to the family members of the deceased employee and as a package thereof, Rule 5(2) stipulates that the family pension as per the normal rules would be payable to the family members only after the period of delivery of financial assistance is completed. The validity of this provision is not put in issue. Suffice it to say that the view taken by the High Court in Ajmero (supra) is a departure from the scheme envisaged by the 2006 Rules, in particular, Rule 5(2). That cannot be countenanced18. As a matter of fact, in the present case, the High Court committed manifest error in assuming that the respondent Nos. 1 and 2 would be eligible to receive financial assistance under the 2006 Rules. The eligibility to receive such financial assistance has been spelt out in Rule 3 of the 2006 Rules read with the provision of Pension/Family Pension Scheme, 1964. It appears that major sons and married daughters are not included in the definition. However, we need not dilate on that aspect in the present proceedings any further. It has come in the evidence of Gobind Singh, Clerk in SDM Office (PW-1) that the legal representatives of the deceased have not submitted any request for getting financial assistance till he had deposed. Indeed, respondent No. 1, who had entered the witness box, did depose that they had applied for getting salary of their deceased mother. The fact remains that there is no clear evidence on record that respondent Nos. 1 and 2 are held to be eligible to get financial assistance or in fact, they are getting such financial assistance under the 2006 Rules. The High Court, therefore, instead of providing for deduction of the amount receivable by the legal representatives of the deceased on this count (under the 2006 Rules), from the compensation amount, should have independently determined the compensation amount and ordered payment thereof subject to legal representatives of the deceased filing affidavit/declaration before the executing Court that they have not received nor would they claim any amount towards financial assistance under the 2006 Rules, so as to become entitled to withdraw the entire compensation amount19. Reverting to the determination of compensation amount, it is noticed that the Tribunal proceeded to determine the compensation amount on the basis of net-salary drawn by the deceased for the relevant period as Rs.16,918/- per month, while taking note of the fact that her gross-salary was Rs.23,123/- per month (presumably below taxable income). Concededly, any deduction from the gross- salary other than tax amount cannot be reckoned. In that, the actual salary less tax amount ought to have been taken into consideration by the Tribunal for determining the compensation amount, in light of the dictum of the Constitution Bench of this Court in paragraph 59.3 of Pranay Sethi (supra)20. Similarly, the High Court despite having taken note of the submission made by the respondent Nos. 1 and 2 that the deduction for personal expenses of the deceased should be reckoned only as one-third (1/3 rd ) amount for determining loss of dependency, maintained the deduction of 50% towards that head as ordered by the Tribunal. This Court in Pranay Sethi (supra), in paragraph 37, adverted to the dictum of this Court in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 ( para 30) with approval, wherein it is held that if the dependant family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one-third (1/3 rd ). In other words, the deduction towards personal expenses to the extent of 50% is excessive and not just and proper considering the fact that the respondent Nos. 1 and 2 alongwith their respective families were staying with the deceased at the relevant time and were largely dependant on her income21. Be that as it may, the Tribunal, for excluding the amount received by the deceased as family pension due to demise of her husband, had noted in paragraph 26, as under: -26. Learned counsel for the claimants further requested that about to family pension being drawn by the deceased also be calculated for the purpose of assessing the compensation. This contention and assertion of learned counsel for the claimants does not carry any conviction with the Tribunal because the deceased was getting family pension in her own right as the widow of the deceased and cannot be termed as her income for the purpose of computing the amount of compensationThe High Court, without reversing the said finding, proceeded to include the amount of Rs.7,000/- per month received by the deceased as pension amount after demise of her husband. We are in agreement with the view taken by the Tribunal and for the same reason, have to reverse the conclusion recorded by the High Court to include the said amount as loss of dependency. That could not have been taken into account, as the same was payable only to the deceased being widow and not her income as such for the purpose of computing the amount of compensation22. Considering the above, respondent Nos. 1 and 2 would be entitled for compensation to be reckoned on the basis of loss of dependency, due to loss of gross salary (less tax amount, if any) of the deceased and future prospects and deduction of only one-third (1/3 rd ) amount towards personal expenses of the deceased. As regards the multiplier 13 applied by the Tribunal and the High Court, the same needs no interference.As a result, on the facts and in the circumstances of this case, the amount payable towards compensation will have to be recalculated on the following basis: -Loss of dependency due to loss of income calculated at Rs.31,26,229.60/- [(Rs.23,123/- x 12 x 13) + (30% future prospects) – (1/3 rd deduction for personal expenses)]. In addition, the claimants would be entitled for a sum of Rs.70,000/- towards conventional heads in terms of dictum in paragraph 59.8 of Pranay Sethi (supra). | 1 | 5,659 | 2,064 | ### 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:
Rule 5(2) stipulates that the family pension as per the normal rules would be payable to the family members only after the period of delivery of financial assistance is completed. The validity of this provision is not put in issue. Suffice it to say that the view taken by the High Court in Ajmero (supra) is a departure from the scheme envisaged by the 2006 Rules, in particular, Rule 5(2). That cannot be countenanced. 18. As a matter of fact, in the present case, the High Court committed manifest error in assuming that the respondent Nos. 1 and 2 would be eligible to receive financial assistance under the 2006 Rules. The eligibility to receive such financial assistance has been spelt out in Rule 3 of the 2006 Rules read with the provision of Pension/Family Pension Scheme, 1964. It appears that major sons and married daughters are not included in the definition. However, we need not dilate on that aspect in the present proceedings any further. It has come in the evidence of Gobind Singh, Clerk in SDM Office (PW-1) that the legal representatives of the deceased have not submitted any request for getting financial assistance till he had deposed. Indeed, respondent No. 1, who had entered the witness box, did depose that they had applied for getting salary of their deceased mother. The fact remains that there is no clear evidence on record that respondent Nos. 1 and 2 are held to be eligible to get financial assistance or in fact, they are getting such financial assistance under the 2006 Rules. The High Court, therefore, instead of providing for deduction of the amount receivable by the legal representatives of the deceased on this count (under the 2006 Rules), from the compensation amount, should have independently determined the compensation amount and ordered payment thereof subject to legal representatives of the deceased filing affidavit/declaration before the executing Court that they have not received nor would they claim any amount towards financial assistance under the 2006 Rules, so as to become entitled to withdraw the entire compensation amount. 19. Reverting to the determination of compensation amount, it is noticed that the Tribunal proceeded to determine the compensation amount on the basis of net-salary drawn by the deceased for the relevant period as Rs.16,918/- per month, while taking note of the fact that her gross-salary was Rs.23,123/- per month (presumably below taxable income). Concededly, any deduction from the gross- salary other than tax amount cannot be reckoned. In that, the actual salary less tax amount ought to have been taken into consideration by the Tribunal for determining the compensation amount, in light of the dictum of the Constitution Bench of this Court in paragraph 59.3 of Pranay Sethi (supra). 20. Similarly, the High Court despite having taken note of the submission made by the respondent Nos. 1 and 2 that the deduction for personal expenses of the deceased should be reckoned only as one-third (1/3 rd ) amount for determining loss of dependency, maintained the deduction of 50% towards that head as ordered by the Tribunal. This Court in Pranay Sethi (supra), in paragraph 37, adverted to the dictum of this Court in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 ( para 30) with approval, wherein it is held that if the dependant family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one-third (1/3 rd ). In other words, the deduction towards personal expenses to the extent of 50% is excessive and not just and proper considering the fact that the respondent Nos. 1 and 2 alongwith their respective families were staying with the deceased at the relevant time and were largely dependant on her income. 21. Be that as it may, the Tribunal, for excluding the amount received by the deceased as family pension due to demise of her husband, had noted in paragraph 26, as under: - 26. Learned counsel for the claimants further requested that about to family pension being drawn by the deceased also be calculated for the purpose of assessing the compensation. This contention and assertion of learned counsel for the claimants does not carry any conviction with the Tribunal because the deceased was getting family pension in her own right as the widow of the deceased and cannot be termed as her income for the purpose of computing the amount of compensation. The High Court, without reversing the said finding, proceeded to include the amount of Rs.7,000/- per month received by the deceased as pension amount after demise of her husband. We are in agreement with the view taken by the Tribunal and for the same reason, have to reverse the conclusion recorded by the High Court to include the said amount as loss of dependency. That could not have been taken into account, as the same was payable only to the deceased being widow and not her income as such for the purpose of computing the amount of compensation. 22. Considering the above, respondent Nos. 1 and 2 would be entitled for compensation to be reckoned on the basis of loss of dependency, due to loss of gross salary (less tax amount, if any) of the deceased and future prospects and deduction of only one-third (1/3 rd ) amount towards personal expenses of the deceased. As regards the multiplier 13 applied by the Tribunal and the High Court, the same needs no interference. As a result, on the facts and in the circumstances of this case, the amount payable towards compensation will have to be recalculated on the following basis: - Loss of dependency due to loss of income calculated at Rs.31,26,229.60/- [(Rs.23,123/- x 12 x 13) + (30% future prospects) – (1/3 rd deduction for personal expenses)]. In addition, the claimants would be entitled for a sum of Rs.70,000/- towards conventional heads in terms of dictum in paragraph 59.8 of Pranay Sethi (supra).
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deceased employee and as a package thereof, Rule 5(2) stipulates that the family pension as per the normal rules would be payable to the family members only after the period of delivery of financial assistance is completed. The validity of this provision is not put in issue. Suffice it to say that the view taken by the High Court in Ajmero (supra) is a departure from the scheme envisaged by the 2006 Rules, in particular, Rule 5(2). That cannot be countenanced18. As a matter of fact, in the present case, the High Court committed manifest error in assuming that the respondent Nos. 1 and 2 would be eligible to receive financial assistance under the 2006 Rules. The eligibility to receive such financial assistance has been spelt out in Rule 3 of the 2006 Rules read with the provision of Pension/Family Pension Scheme, 1964. It appears that major sons and married daughters are not included in the definition. However, we need not dilate on that aspect in the present proceedings any further. It has come in the evidence of Gobind Singh, Clerk in SDM Office (PW-1) that the legal representatives of the deceased have not submitted any request for getting financial assistance till he had deposed. Indeed, respondent No. 1, who had entered the witness box, did depose that they had applied for getting salary of their deceased mother. The fact remains that there is no clear evidence on record that respondent Nos. 1 and 2 are held to be eligible to get financial assistance or in fact, they are getting such financial assistance under the 2006 Rules. The High Court, therefore, instead of providing for deduction of the amount receivable by the legal representatives of the deceased on this count (under the 2006 Rules), from the compensation amount, should have independently determined the compensation amount and ordered payment thereof subject to legal representatives of the deceased filing affidavit/declaration before the executing Court that they have not received nor would they claim any amount towards financial assistance under the 2006 Rules, so as to become entitled to withdraw the entire compensation amount19. Reverting to the determination of compensation amount, it is noticed that the Tribunal proceeded to determine the compensation amount on the basis of net-salary drawn by the deceased for the relevant period as Rs.16,918/- per month, while taking note of the fact that her gross-salary was Rs.23,123/- per month (presumably below taxable income). Concededly, any deduction from the gross- salary other than tax amount cannot be reckoned. In that, the actual salary less tax amount ought to have been taken into consideration by the Tribunal for determining the compensation amount, in light of the dictum of the Constitution Bench of this Court in paragraph 59.3 of Pranay Sethi (supra)20. Similarly, the High Court despite having taken note of the submission made by the respondent Nos. 1 and 2 that the deduction for personal expenses of the deceased should be reckoned only as one-third (1/3 rd ) amount for determining loss of dependency, maintained the deduction of 50% towards that head as ordered by the Tribunal. This Court in Pranay Sethi (supra), in paragraph 37, adverted to the dictum of this Court in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 ( para 30) with approval, wherein it is held that if the dependant family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one-third (1/3 rd ). In other words, the deduction towards personal expenses to the extent of 50% is excessive and not just and proper considering the fact that the respondent Nos. 1 and 2 alongwith their respective families were staying with the deceased at the relevant time and were largely dependant on her income21. Be that as it may, the Tribunal, for excluding the amount received by the deceased as family pension due to demise of her husband, had noted in paragraph 26, as under: -26. Learned counsel for the claimants further requested that about to family pension being drawn by the deceased also be calculated for the purpose of assessing the compensation. This contention and assertion of learned counsel for the claimants does not carry any conviction with the Tribunal because the deceased was getting family pension in her own right as the widow of the deceased and cannot be termed as her income for the purpose of computing the amount of compensationThe High Court, without reversing the said finding, proceeded to include the amount of Rs.7,000/- per month received by the deceased as pension amount after demise of her husband. We are in agreement with the view taken by the Tribunal and for the same reason, have to reverse the conclusion recorded by the High Court to include the said amount as loss of dependency. That could not have been taken into account, as the same was payable only to the deceased being widow and not her income as such for the purpose of computing the amount of compensation22. Considering the above, respondent Nos. 1 and 2 would be entitled for compensation to be reckoned on the basis of loss of dependency, due to loss of gross salary (less tax amount, if any) of the deceased and future prospects and deduction of only one-third (1/3 rd ) amount towards personal expenses of the deceased. As regards the multiplier 13 applied by the Tribunal and the High Court, the same needs no interference.As a result, on the facts and in the circumstances of this case, the amount payable towards compensation will have to be recalculated on the following basis: -Loss of dependency due to loss of income calculated at Rs.31,26,229.60/- [(Rs.23,123/- x 12 x 13) + (30% future prospects) – (1/3 rd deduction for personal expenses)]. In addition, the claimants would be entitled for a sum of Rs.70,000/- towards conventional heads in terms of dictum in paragraph 59.8 of Pranay Sethi (supra).
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United India Insurance Company Limited Vs. H.K. Khatau & Others | was restricted only to the claim that the work performed was either supervisory or technical. In view of the concession made before the Division Bench, the only question which fell for determination was whether as contended by the management, the employee was covered by the expression in Clause (iii), as a person employed mainly in the managerial or administrative capacity. The Division Bench, on the material before it, came to the conclusion that Variava was not a workman as he was not employed to do supervisory or technical work. We fail to appreciate how this decision would be of any assistance to the petitioners in the present case as the decision in Variavas case does not lay down any principle to the effect that the Field Workers are not performing manual or clerical work. The decision in Cariavas case centred round only as to whether the employee was performing supervisory or technical work and on the material produced in that case, the finding was recorded against the employee. In our judgment, the decision in Variavas case is of no assistance in the present case.11. Reliance was also placed on the decision of the Single Judge of the Madras High Court in Writ Petition No. 184 of 1977 (The Oriental Fire and General Insurance Co. v. Shrinivas and others)4, to claim that the Field Workers are not employees within the definition of section 2(e), of the Act. It is true that the learned Single Judge of the Madras High Court, on the material produced in that case, came to the conclusion that the main or substantive work performed by the employee being one of canvassing the insurance business and developing and promoting the business of the Company, the employee would not fall within the meaning of section 2(e), of the Act. With respect to the learned Single Judge, we are unable to find any reasons in the judgment which led to the conclusion that the employee was incidentally doing clerical work. It must be stated that it was not urged before the learned Single Judge that the work performed by the Field Worker as really manual work. The submission before the Single Judge seems to have been restricted to the claim that the work done by the Field Worker was of a clerical nature. The learned Judge on the material produced felt that main or substantial work being of canvassing, some incidental clerical work done by the Field Worker would not enable him to be designated as employee under the Act. On the material produced in the present case we are satisfied that the work performed by respondent No. 1, was manual as well as clerical and, therefore, he is entitled to claim advantage of the provisions of Payment of Gratuity Act which is a beneficial legislation enacted to give assistance to the lowly paid employees.12. Shri Kothari submitted that in the two petitions in which he is appearing the employees had not specifically claimed in their application that they were doing manual or clerical work and, therefore, in case we are inclined to take that view we must remit the matters back to the authorities for giving a fresh opportunity to the petitioners to lead evidence to establish that the work carried out by the employees was neither manual nor clerical. We are unable to appreciate the submission that a fresh opportunity should be given to the petitioners to lead further evidence. It must be remembered that the application filled by an employee section section 4, of the Act cannot be considered as a pleading in the suit and the claim of an employee cannot be defeated on technical grounds. Apart from this, we find that in a detailed written statement filed on behalf of the petitioners, it was specifically denied that the employee was not engaged to do any manual or clerical work. The petitioner company had ample opportunity to lead evidence before the authorities and in fact did so. On the material produced before the authorities, if it becomes evident that the work performed by the employee was of a manual or clerical nature, then it is futile for the petitioners now to claim that they should be given a fresh opportunity to establish the contrary. The material was produced by the parties before the authorities and it is for the Court to ascertain what was the nature of work from the duties performed by the employee. In our judgment, the claim advanced by Shri Kothari for remission of the matter for a fresh opportunity is without any merit and deserves to be repelled.13. A faint submission was also advanced by Shri Kothari that the application was not maintainable as it was barred by limitation and the Act had no application to the Insurance Companies. We find no merit in this contention advanced on behalf of the company which is a nationalised one and which is fighting against the lowly paid employees for a small amount of gratuity awarded by the two authorities below. The authorities below very rightly condoned the delay, if any, on the part of the employee in filling the application and the discretion exercised by the authorities below, and which we think very rightly exercised, cannot be disturbed in these proceedings under Articles 226 and 227 of the Constitution of India. The submission that Insurance Companies are not covered by the provisions of the Act is also without any substance as the Act specifically provides under section 1(3)(b) that it shall apply to every establishment within the meaning of any law for the time being in force, in relation to the establishment employing ten or more persons. Shri Kothari could not deny that the petitioner Company is an establishment employing more than ten persons. In our judgment, the defence raised by the petitioner Company to the application made by the employee is without any substance and the authorities below were justified in granting the applications and awarding the amount of gratuity to the employees. | 0[ds]It is not possible to accept this submission. Respondent No. 1, filed the application claiming gratuity under the Act and the action was not for enforcing the contractual liability but for enforcing the statutory right conferred under the Act. Respondent No. 1, was not claiming that under the conditions of service he was entitled to the gratuity, but his claim was based upon the provisions of the Act. Section 14, of the Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or in any instrument or contract having effect by virtue of any enactment under the Act. The sweep of this section clearly provides that the right to claim gratuity by an employee under the provisions of this Act is not based on any contract but a right which arises out of the provisions of the statute itself. The mere fact that there was no gratuity scheme in Vulcan Insurance Co. or the merger scheme did not provide for grant of gratuity is not sufficient to hold that the application of respondent No. 1 was not maintainable. The provisions made under the Act are in addition to the rights conferred on the employee under the conditions of service contained in any contract or any Act. As there was no provision under the conditions of service for grant of gratuity, respondent No. 1, is entitled to claim gratuity under the provisions of the Act, and in our judgment, the authorities below were justified in holding the contention of the petitioners that the application was incompetent on the ground that the conditions of service or the merger scheme did not provide for grant of gratuity was without anyis not in dispute that the scheme known as the General Insurance (Rationalisation of Pay Scales and other Conditions of Service of Development Staff) Scheme, 1976 was framed under the provisions of section 16(1)(f) of this Act. The scheme categorises Development Staff in four categories and those are (1) Development Superintendents; (2) Inspectors Grade I; (3) Inspectors Grade II; and (4) Field Workers. Rule 17 of the scheme provides for payment of gratuity to the Development Superintendent, Inspectors Grade I and Inspectors Grade II on the termination of theiris not possible to accept the submission of the learned Counsel. The reading of(7) of section 16 of the General Insurance Business (Nationalisation) Act indicates that if there is any clash of interest between the provisions of this Act and the Scheme framed thereunder with the provisions of any other Act, then the provisions of General Insurance Business (Nationalisation) Act and the Scheme thereunder would prevail. Therefore, it is necessary to ascertain whether there is a clash of interest when respondent No. 1 claims gratuity under the Act.6. It is not in dispute that though the nationalisation scheme covers the conditions of service of the field workers, it does not provide for the payment of gratuity to the field worker. The scheme is silent in regard to the payment of gratuity to the field workers and the reason is not far to see. Shri Chedha pointed out that it was the policy of the Insurance Companies to phase out the category of field workers, as they were very lowly paid employees, and were not highly educated. The Insurance Companies decided to assimilate the employees belonging to the category of field workers in the grade of Inspector Grade II provided their work and the out put was found satisfactory. Those field workers, who were not found upon the mark were relieved from their employment within a period of about a year from the date of the scheme coming into effect. It, therefore, appears that the nationalisation scheme framed by the Insurance Companies did not make any provision for grant of gratuity to the Field Workers as most of the Field Workers were either merged in the cadre of Inspectors Grade II or were relieved of their duties within a period of one year. As the nationalisation scheme is silent about payment of gratuity to the field workers, who obviously must be very few in number, it is impossible to conclude that what the scheme intended was to deprive them of the right to claim gratuity. Shri Chedhas submission that by conscious action the scheme provided for depriving the field workers, who were obviously the lowly paid employees depriving the Field Workers, who were obviously the lowly paid employees of the employees at the bottom of the ladder on the development side, from the grant of gratuity cannot be accepted. As the insurance companies had decided to abolish the post of field workers within a year of the scheme coming into operation, probably no provision was made in the scheme for payment of gratuity to such workers. It is impossible to assume that the scheme which provides for payment of gratuity to other three categories of employees on the development side, deliberately intended to exclude workers at the bottom from advantage of gratuity. In our judgment, under the circumstances there is no clash of interests whatsoever between the right of the Field Workers to claim gratuity under the provisions of the Act and the provisions of section 16 or the scheme framed thereunder. In our judgment, the conclusion recorded by the two authorities below that respondent No. 1, stands entitled to claim gratuity under the provisions of the Act is in accordance with law and cannot be faultedsubmission made on behalf of respondent No. 1 is quite attractive, but we need not record any finding on that aspect because in the present case we find that respondent No. 1 was performing manual or clerical work and would therefore, come within the definition of employee and would be entitled to claim benefits of theare unable to accept this submission. The work which respondent No. 1, was required to perform is of visiting customers at their houses and canvassing and doing business by selling the insurance policies. We are unable to appreciate now the work of respondent No. 1, or visiting customers and selling insurance policies, collecting premium amount and depositing it in the office cannot be treated as a manual work. The manual work cannot be restricted only to those cases where a worker is required to carry out certain work by his hands. Take for instance, the work performed bywho are required to visit several houses to sell the product. The work performed byis undoubtedly of promoting the sale by effecting sales of the product of the Company which engages them. The work performed by such persons is certainly a manual work and we do not see any distinction between the case of a sales girl visiting the houses for selling the product of the product of the company and a Field Workds, who is required to visit the houses of the customers for selling the insurance policies. It is obvious from the material on record that the Field Workers are lowly paid employees and are employed to travel over the town and contact various customers, and in our work. We also find that it is one of the duties of the Field Worker to collect the premium amount from the customers and to deposit it ultimately in the office, and we do not see any reason why the work of this nature performed by the Field Workers should not be treated as clericalare unable to persuade ourselves to this line of reasoning in the case of Field Workers, there is no question of dominant work or an incidental work. The duties performed by the Field Workers are to visit the customers and to sell the insurance policies and then to service the policies till maturity by attending on customers. In the performance of this work, there is nothing like dominant work or incidental work and merely because the Company claims that the Field Workers were employed to canvass business it is not sufficient to conclude that the work performed by the Field Worker is neither manual nor clerical work. In our judgment, applying the test laid down by the Supreme Court in the Case of Burmah Shell, there is no manner of doubt that respondent No. 1 was performing manual work and clerical work so as to entitled him total within the definition of employee under thehave perused the judgment very closely and in our judgment, the reliance on the judgment in Variavas case is of no assistance to the petitioners. In Variavas case the employee was appointed to work as an agent of a Company carrying on business of general insurance and the terms and conditions of the appointment of the employee were for servicing unit which was opened at Nagpur. The service of the employee was terminated and the reference was made to the Industrial Tribunal under section 10(1)(d), of the Industrial Disputes Act, to ascertain whether the action of the management in terminating the services of Variava was legal and justified. The Tribunal came to the conclusion that Variava was not a workman within the meaning of the term in section 2(s), of the Industrial Disputes Act and the reference was not tenable. In the petition filed under Articles 226 and 227, of the Constitution of India before the Division Bench it was conceded on behalf of Variava that he was not claiming to be a workman on the ground that he did either skilled manual work or skilled clerical work. The claim of Variava to be treated as workman was restricted only to the claim that the work performed was either supervisory or technical. In view of the concession made before the Division Bench, the only question which fell for determination was whether as contended by the management, the employee was covered by the expression in Clause (iii), as a person employed mainly in the managerial or administrative capacity. The Division Bench, on the material before it, came to the conclusion that Variava was not a workman as he was not employed to do supervisory or technical work. We fail to appreciate how this decision would be of any assistance to the petitioners in the present case as the decision in Variavas case does not lay down any principle to the effect that the Field Workers are not performing manual or clerical work. The decision in Cariavas case centred round only as to whether the employee was performing supervisory or technical work and on the material produced in that case, the finding was recorded against the employee. In our judgment, the decision in Variavas case is of no assistance in the presentis true that the learned Single Judge of the Madras High Court, on the material produced in that case, came to the conclusion that the main or substantive work performed by the employee being one of canvassing the insurance business and developing and promoting the business of the Company, the employee would not fall within the meaning of section 2(e), of the Act. With respect to the learned Single Judge, we are unable to find any reasons in the judgment which led to the conclusion that the employee was incidentally doing clerical work. It must be stated that it was not urged before the learned Single Judge that the work performed by the Field Worker as really manual work. The submission before the Single Judge seems to have been restricted to the claim that the work done by the Field Worker was of a clerical nature. The learned Judge on the material produced felt that main or substantial work being of canvassing, some incidental clerical work done by the Field Worker would not enable him to be designated as employee under the Act. On the material produced in the present case we are satisfied that the work performed by respondent No. 1, was manual as well as clerical and, therefore, he is entitled to claim advantage of the provisions of Payment of Gratuity Act which is a beneficial legislation enacted to give assistance to the lowly paidare unable to appreciate the submission that a fresh opportunity should be given to the petitioners to lead further evidence. It must be remembered that the application filled by an employee section section 4, of the Act cannot be considered as a pleading in the suit and the claim of an employee cannot be defeated on technical grounds. Apart from this, we find that in a detailed written statement filed on behalf of the petitioners, it was specifically denied that the employee was not engaged to do any manual or clerical work. The petitioner company had ample opportunity to lead evidence before the authorities and in fact did so. On the material produced before the authorities, if it becomes evident that the work performed by the employee was of a manual or clerical nature, then it is futile for the petitioners now to claim that they should be given a fresh opportunity to establish the contrary. The material was produced by the parties before the authorities and it is for the Court to ascertain what was the nature of work from the duties performed by the employee. In our judgment, the claim advanced by Shri Kothari for remission of the matter for a fresh opportunity is without any merit and deserves to befind no merit in this contention advanced on behalf of the company which is a nationalised one and which is fighting against the lowly paid employees for a small amount of gratuity awarded by the two authorities below. The authorities below very rightly condoned the delay, if any, on the part of the employee in filling the application and the discretion exercised by the authorities below, and which we think very rightly exercised, cannot be disturbed in these proceedings under Articles 226 and 227 of the Constitution of India. The submission that Insurance Companies are not covered by the provisions of the Act is also without any substance as the Act specifically provides under section 1(3)(b) that it shall apply to every establishment within the meaning of any law for the time being in force, in relation to the establishment employing ten or more persons. Shri Kothari could not deny that the petitioner Company is an establishment employing more than ten persons. In our judgment, the defence raised by the petitioner Company to the application made by the employee is without any substance and the authorities below were justified in granting the applications and awarding the amount of gratuity to the employees. | 0 | 6,040 | 2,624 | ### 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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was restricted only to the claim that the work performed was either supervisory or technical. In view of the concession made before the Division Bench, the only question which fell for determination was whether as contended by the management, the employee was covered by the expression in Clause (iii), as a person employed mainly in the managerial or administrative capacity. The Division Bench, on the material before it, came to the conclusion that Variava was not a workman as he was not employed to do supervisory or technical work. We fail to appreciate how this decision would be of any assistance to the petitioners in the present case as the decision in Variavas case does not lay down any principle to the effect that the Field Workers are not performing manual or clerical work. The decision in Cariavas case centred round only as to whether the employee was performing supervisory or technical work and on the material produced in that case, the finding was recorded against the employee. In our judgment, the decision in Variavas case is of no assistance in the present case.11. Reliance was also placed on the decision of the Single Judge of the Madras High Court in Writ Petition No. 184 of 1977 (The Oriental Fire and General Insurance Co. v. Shrinivas and others)4, to claim that the Field Workers are not employees within the definition of section 2(e), of the Act. It is true that the learned Single Judge of the Madras High Court, on the material produced in that case, came to the conclusion that the main or substantive work performed by the employee being one of canvassing the insurance business and developing and promoting the business of the Company, the employee would not fall within the meaning of section 2(e), of the Act. With respect to the learned Single Judge, we are unable to find any reasons in the judgment which led to the conclusion that the employee was incidentally doing clerical work. It must be stated that it was not urged before the learned Single Judge that the work performed by the Field Worker as really manual work. The submission before the Single Judge seems to have been restricted to the claim that the work done by the Field Worker was of a clerical nature. The learned Judge on the material produced felt that main or substantial work being of canvassing, some incidental clerical work done by the Field Worker would not enable him to be designated as employee under the Act. On the material produced in the present case we are satisfied that the work performed by respondent No. 1, was manual as well as clerical and, therefore, he is entitled to claim advantage of the provisions of Payment of Gratuity Act which is a beneficial legislation enacted to give assistance to the lowly paid employees.12. Shri Kothari submitted that in the two petitions in which he is appearing the employees had not specifically claimed in their application that they were doing manual or clerical work and, therefore, in case we are inclined to take that view we must remit the matters back to the authorities for giving a fresh opportunity to the petitioners to lead evidence to establish that the work carried out by the employees was neither manual nor clerical. We are unable to appreciate the submission that a fresh opportunity should be given to the petitioners to lead further evidence. It must be remembered that the application filled by an employee section section 4, of the Act cannot be considered as a pleading in the suit and the claim of an employee cannot be defeated on technical grounds. Apart from this, we find that in a detailed written statement filed on behalf of the petitioners, it was specifically denied that the employee was not engaged to do any manual or clerical work. The petitioner company had ample opportunity to lead evidence before the authorities and in fact did so. On the material produced before the authorities, if it becomes evident that the work performed by the employee was of a manual or clerical nature, then it is futile for the petitioners now to claim that they should be given a fresh opportunity to establish the contrary. The material was produced by the parties before the authorities and it is for the Court to ascertain what was the nature of work from the duties performed by the employee. In our judgment, the claim advanced by Shri Kothari for remission of the matter for a fresh opportunity is without any merit and deserves to be repelled.13. A faint submission was also advanced by Shri Kothari that the application was not maintainable as it was barred by limitation and the Act had no application to the Insurance Companies. We find no merit in this contention advanced on behalf of the company which is a nationalised one and which is fighting against the lowly paid employees for a small amount of gratuity awarded by the two authorities below. The authorities below very rightly condoned the delay, if any, on the part of the employee in filling the application and the discretion exercised by the authorities below, and which we think very rightly exercised, cannot be disturbed in these proceedings under Articles 226 and 227 of the Constitution of India. The submission that Insurance Companies are not covered by the provisions of the Act is also without any substance as the Act specifically provides under section 1(3)(b) that it shall apply to every establishment within the meaning of any law for the time being in force, in relation to the establishment employing ten or more persons. Shri Kothari could not deny that the petitioner Company is an establishment employing more than ten persons. In our judgment, the defence raised by the petitioner Company to the application made by the employee is without any substance and the authorities below were justified in granting the applications and awarding the amount of gratuity to the employees.
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employee was appointed to work as an agent of a Company carrying on business of general insurance and the terms and conditions of the appointment of the employee were for servicing unit which was opened at Nagpur. The service of the employee was terminated and the reference was made to the Industrial Tribunal under section 10(1)(d), of the Industrial Disputes Act, to ascertain whether the action of the management in terminating the services of Variava was legal and justified. The Tribunal came to the conclusion that Variava was not a workman within the meaning of the term in section 2(s), of the Industrial Disputes Act and the reference was not tenable. In the petition filed under Articles 226 and 227, of the Constitution of India before the Division Bench it was conceded on behalf of Variava that he was not claiming to be a workman on the ground that he did either skilled manual work or skilled clerical work. The claim of Variava to be treated as workman was restricted only to the claim that the work performed was either supervisory or technical. In view of the concession made before the Division Bench, the only question which fell for determination was whether as contended by the management, the employee was covered by the expression in Clause (iii), as a person employed mainly in the managerial or administrative capacity. The Division Bench, on the material before it, came to the conclusion that Variava was not a workman as he was not employed to do supervisory or technical work. We fail to appreciate how this decision would be of any assistance to the petitioners in the present case as the decision in Variavas case does not lay down any principle to the effect that the Field Workers are not performing manual or clerical work. The decision in Cariavas case centred round only as to whether the employee was performing supervisory or technical work and on the material produced in that case, the finding was recorded against the employee. In our judgment, the decision in Variavas case is of no assistance in the presentis true that the learned Single Judge of the Madras High Court, on the material produced in that case, came to the conclusion that the main or substantive work performed by the employee being one of canvassing the insurance business and developing and promoting the business of the Company, the employee would not fall within the meaning of section 2(e), of the Act. With respect to the learned Single Judge, we are unable to find any reasons in the judgment which led to the conclusion that the employee was incidentally doing clerical work. It must be stated that it was not urged before the learned Single Judge that the work performed by the Field Worker as really manual work. The submission before the Single Judge seems to have been restricted to the claim that the work done by the Field Worker was of a clerical nature. The learned Judge on the material produced felt that main or substantial work being of canvassing, some incidental clerical work done by the Field Worker would not enable him to be designated as employee under the Act. On the material produced in the present case we are satisfied that the work performed by respondent No. 1, was manual as well as clerical and, therefore, he is entitled to claim advantage of the provisions of Payment of Gratuity Act which is a beneficial legislation enacted to give assistance to the lowly paidare unable to appreciate the submission that a fresh opportunity should be given to the petitioners to lead further evidence. It must be remembered that the application filled by an employee section section 4, of the Act cannot be considered as a pleading in the suit and the claim of an employee cannot be defeated on technical grounds. Apart from this, we find that in a detailed written statement filed on behalf of the petitioners, it was specifically denied that the employee was not engaged to do any manual or clerical work. The petitioner company had ample opportunity to lead evidence before the authorities and in fact did so. On the material produced before the authorities, if it becomes evident that the work performed by the employee was of a manual or clerical nature, then it is futile for the petitioners now to claim that they should be given a fresh opportunity to establish the contrary. The material was produced by the parties before the authorities and it is for the Court to ascertain what was the nature of work from the duties performed by the employee. In our judgment, the claim advanced by Shri Kothari for remission of the matter for a fresh opportunity is without any merit and deserves to befind no merit in this contention advanced on behalf of the company which is a nationalised one and which is fighting against the lowly paid employees for a small amount of gratuity awarded by the two authorities below. The authorities below very rightly condoned the delay, if any, on the part of the employee in filling the application and the discretion exercised by the authorities below, and which we think very rightly exercised, cannot be disturbed in these proceedings under Articles 226 and 227 of the Constitution of India. The submission that Insurance Companies are not covered by the provisions of the Act is also without any substance as the Act specifically provides under section 1(3)(b) that it shall apply to every establishment within the meaning of any law for the time being in force, in relation to the establishment employing ten or more persons. Shri Kothari could not deny that the petitioner Company is an establishment employing more than ten persons. In our judgment, the defence raised by the petitioner Company to the application made by the employee is without any substance and the authorities below were justified in granting the applications and awarding the amount of gratuity to the employees.
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Bhupinder Singh Bawa Vs. Asha Devi | On the contrary, the respondent has maintained that the courts below have recorded concurrent findings of fact that no suitable accommodation was available for running business of sanitary and hardware by her son and have rightly passed an eviction order in favour of the respondent. More so, the respondent cannot be dictated the terms of occupation of her self-owned properties.7. We have carefully considered the rival contentions and perused the impugned judgment and materials on record. 8. Both the courts below have allowed the eviction petition filed by the respondent against the appellant on the ground of bona fide requirement under Section 14(1)(e) of Delhi Rent Control Act, 1958 by recording concurrent findings. First and foremost, the landlord-tenant relationship between the parties is not in dispute. The only dispute relates to bona fide requirement of the respondent for business of her son and availability/non-availability of alternative suitable accommodation. 9. The concurrent findings recorded by the courts below are as follows: Firstly, It was held that the fact that respondents son is engaged as Director in the family company M/s. Jaishree Granites Pvt. Ltd. and earns a salary of L 50,000/- cannot be an impediment to his running a separate business of sanitary and hardware. The courts held that the law does not provide that if a landlord/landlady requires the premises for running business of his/her young son who is an MBA, and is already engaged in some other business, he is acting malafidely and thus, no relief should be granted to him/her. Secondly, the courts below considered the suitability of every alternative accommodation suggested by the appellant which can preferably be occupied by the respondents son for running his business. The appellant had suggested following alternative premises: Property No. 285-B, Basai Darapur, Sharda Puri, Ring Road, New Delhi owned by husband of the respondent, Property no. A-2/53, W.H.S., Kirti Nagar, New Delhi owned by husband of the respondent, Property No. D-201, Mansarovar Garden, New Delhi owned by husband of the respondent, Property Nos. 43, 44, 45 and 46 situated at Block-A-1, W.H.S. Kirti Nagar, New Delhi owned by the company M/s. Jaishree Granites Pvt. Ltd, Property No. D-12, Rajouri Garden, Ring Road, New Delhi which is the registered office of M/s. Jaishree Granites Pvt. Ltd. The courts found that the properties in the name of family company, M/s. Jaishree Granites Pvt. Ltd. viz. Property nos. 43,44,45 and 46 situated at Block-A-1, W.H.S. Kirti Nagar, New Delhi and Property No. D-12, Rajouri Garden, Ring Road, New Delhi were not located in a market area and thus, they were unsuitable for occupation especially when other suitable premise was available in the market area. 10. The property No. 285-B which was owned by the husband of the respondent was found already in occupation as a retail outlet for marble and granite run by the husband of the respondent. The courts considered the allegation of the appellant that property No. 285-B is owned by the respondent and not by her husband. The appellant had produced a copy of Income Tax Returns of the respondent for establishing his claim. However, the High Court rejected the said claim on finding that the alphabet `B appearing after number 285 under the head of rental incomes was wrongly written in the Income Tax Return of the respondent. Moreover, the High Court found that the appellant had himself stated in his pleadings that property no. 285-B belonged to the husband of the respondent and not to the respondent. Also, with regard to property No. A-2/53 at Kirti Nagar which is also owned by the husband of the respondent, the courts found that it is being used by M/s. Jaishree Granites Pvt. Ltd. as godown for the stock of the marble and granite.11. So far as property bearing No. D-201, Mansarovar Garden, New Delhi is concerned, the appellant made a case that the entire property including the ground floor of property No. D-201 was available to the respondent which could have been suitably used for running her sons business as it was located on the main road and in a market area also. The courts noted that the appellant has admitted in his cross-examination that the first floor and second floor of the property No. D-201 is in occupation of brother-in-law (Devar) of the respondent who is carrying on his business in the said premises. The court also noted that in his cross examination, the appellant has suggested that if not on the first or second floor, respondents son can occupy the basement of property No. D-201. Having so noted, the High Court has observed that the appellant impliedly admitting that the husband of the respondent is not the owner of the ground floor of property No. D-201. The courts also noted that the appellant has not specifically pleaded in his written submissions that the ground floor of property No. D-201 is owned by the husband of the respondent. In such facts and circumstances, the courts recorded concurrent finding of fact that ground floor of property No. D-201 does not belong to husband of the respondent and thus the question of its suitability as an alternate accommodation does not arise in the present case.12. In light of the above, Additional Rent Controller and the High Court rightly concluded that no alternative premise was lying vacant for running business of respondents son. The High Court rightly relied on the ratio of Anil Bajaj & Anr v. Vinod Ahuja, 2014(1) R.C.R.(Rent) 484 : 2014(2) R.C.R.(Civil) 974 : 2014(3) Recent Apex Judgments (R.A.J.) 220 : 2014 (6) SCALE 572 to hold that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to from which shop her son should start the business from.13. The concurrent findings recorded by the courts below are based on evidence and materials on record, we do not find any infirmity warranting interference with the impugned judgment. | 0[ds]10. The property No. 285-B which was owned by the husband of the respondent was found already in occupation as a retail outlet for marble and granite run by the husband of the respondent. The courts considered the allegation of the appellant that property No. 285-B is owned by the respondent and not by her husband. The appellant had produced a copy of Income Tax Returns of the respondent for establishing his claim. However, the High Court rejected the said claim on finding that the alphabet `B appearing after number 285 under the head of rental incomes was wrongly written in the Income Tax Return of the respondent. Moreover, the High Court found that the appellant had himself stated in his pleadings that property no. 285-B belonged to the husband of the respondent and not to the respondent. Also, with regard to property No. A-2/53 at Kirti Nagar which is also owned by the husband of the respondent, the courts found that it is being used by M/s. Jaishree Granites Pvt. Ltd. as godown for the stock of the marble and granite.11. So far as property bearing No. D-201, Mansarovar Garden, New Delhi is concerned, the appellant made a case that the entire property including the ground floor of property No. D-201 was available to the respondent which could have been suitably used for running her sons business as it was located on the main road and in a market area also. The courts noted that the appellant has admitted in his cross-examination that the first floor and second floor of the property No. D-201 is in occupation of brother-in-law (Devar) of the respondent who is carrying on his business in the said premises. The court also noted that in his cross examination, the appellant has suggested that if not on the first or second floor, respondents son can occupy the basement of property No. D-201. Having so noted, the High Court has observed that the appellant impliedly admitting that the husband of the respondent is not the owner of the ground floor of property No. D-201. The courts also noted that the appellant has not specifically pleaded in his written submissions that the ground floor of property No. D-201 is owned by the husband of the respondent. In such facts and circumstances, the courts recorded concurrent finding of fact that ground floor of property No. D-201 does not belong to husband of the respondent and thus the question of its suitability as an alternate accommodation does not arise in the present case.12. In light of the above, Additional Rent Controller and the High Court rightly concluded that no alternative premise was lying vacant for running business of respondents son. The High Court rightly relied on the ratio of Anil Bajaj & Anr v. Vinod Ahuja, 2014(1) R.C.R.(Rent) 484 : 2014(2) R.C.R.(Civil) 974 : 2014(3) Recent Apex Judgments (R.A.J.) 220 : 2014 (6) SCALE 572 to hold that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to from which shop her son should start the business from.13. The concurrent findings recorded by the courts below are based on evidence and materials on record, we do not find any infirmity warranting interference with the impugned judgment. | 0 | 1,943 | 632 | ### Instruction:
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On the contrary, the respondent has maintained that the courts below have recorded concurrent findings of fact that no suitable accommodation was available for running business of sanitary and hardware by her son and have rightly passed an eviction order in favour of the respondent. More so, the respondent cannot be dictated the terms of occupation of her self-owned properties.7. We have carefully considered the rival contentions and perused the impugned judgment and materials on record. 8. Both the courts below have allowed the eviction petition filed by the respondent against the appellant on the ground of bona fide requirement under Section 14(1)(e) of Delhi Rent Control Act, 1958 by recording concurrent findings. First and foremost, the landlord-tenant relationship between the parties is not in dispute. The only dispute relates to bona fide requirement of the respondent for business of her son and availability/non-availability of alternative suitable accommodation. 9. The concurrent findings recorded by the courts below are as follows: Firstly, It was held that the fact that respondents son is engaged as Director in the family company M/s. Jaishree Granites Pvt. Ltd. and earns a salary of L 50,000/- cannot be an impediment to his running a separate business of sanitary and hardware. The courts held that the law does not provide that if a landlord/landlady requires the premises for running business of his/her young son who is an MBA, and is already engaged in some other business, he is acting malafidely and thus, no relief should be granted to him/her. Secondly, the courts below considered the suitability of every alternative accommodation suggested by the appellant which can preferably be occupied by the respondents son for running his business. The appellant had suggested following alternative premises: Property No. 285-B, Basai Darapur, Sharda Puri, Ring Road, New Delhi owned by husband of the respondent, Property no. A-2/53, W.H.S., Kirti Nagar, New Delhi owned by husband of the respondent, Property No. D-201, Mansarovar Garden, New Delhi owned by husband of the respondent, Property Nos. 43, 44, 45 and 46 situated at Block-A-1, W.H.S. Kirti Nagar, New Delhi owned by the company M/s. Jaishree Granites Pvt. Ltd, Property No. D-12, Rajouri Garden, Ring Road, New Delhi which is the registered office of M/s. Jaishree Granites Pvt. Ltd. The courts found that the properties in the name of family company, M/s. Jaishree Granites Pvt. Ltd. viz. Property nos. 43,44,45 and 46 situated at Block-A-1, W.H.S. Kirti Nagar, New Delhi and Property No. D-12, Rajouri Garden, Ring Road, New Delhi were not located in a market area and thus, they were unsuitable for occupation especially when other suitable premise was available in the market area. 10. The property No. 285-B which was owned by the husband of the respondent was found already in occupation as a retail outlet for marble and granite run by the husband of the respondent. The courts considered the allegation of the appellant that property No. 285-B is owned by the respondent and not by her husband. The appellant had produced a copy of Income Tax Returns of the respondent for establishing his claim. However, the High Court rejected the said claim on finding that the alphabet `B appearing after number 285 under the head of rental incomes was wrongly written in the Income Tax Return of the respondent. Moreover, the High Court found that the appellant had himself stated in his pleadings that property no. 285-B belonged to the husband of the respondent and not to the respondent. Also, with regard to property No. A-2/53 at Kirti Nagar which is also owned by the husband of the respondent, the courts found that it is being used by M/s. Jaishree Granites Pvt. Ltd. as godown for the stock of the marble and granite.11. So far as property bearing No. D-201, Mansarovar Garden, New Delhi is concerned, the appellant made a case that the entire property including the ground floor of property No. D-201 was available to the respondent which could have been suitably used for running her sons business as it was located on the main road and in a market area also. The courts noted that the appellant has admitted in his cross-examination that the first floor and second floor of the property No. D-201 is in occupation of brother-in-law (Devar) of the respondent who is carrying on his business in the said premises. The court also noted that in his cross examination, the appellant has suggested that if not on the first or second floor, respondents son can occupy the basement of property No. D-201. Having so noted, the High Court has observed that the appellant impliedly admitting that the husband of the respondent is not the owner of the ground floor of property No. D-201. The courts also noted that the appellant has not specifically pleaded in his written submissions that the ground floor of property No. D-201 is owned by the husband of the respondent. In such facts and circumstances, the courts recorded concurrent finding of fact that ground floor of property No. D-201 does not belong to husband of the respondent and thus the question of its suitability as an alternate accommodation does not arise in the present case.12. In light of the above, Additional Rent Controller and the High Court rightly concluded that no alternative premise was lying vacant for running business of respondents son. The High Court rightly relied on the ratio of Anil Bajaj & Anr v. Vinod Ahuja, 2014(1) R.C.R.(Rent) 484 : 2014(2) R.C.R.(Civil) 974 : 2014(3) Recent Apex Judgments (R.A.J.) 220 : 2014 (6) SCALE 572 to hold that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to from which shop her son should start the business from.13. The concurrent findings recorded by the courts below are based on evidence and materials on record, we do not find any infirmity warranting interference with the impugned judgment.
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### Explanation:
10. The property No. 285-B which was owned by the husband of the respondent was found already in occupation as a retail outlet for marble and granite run by the husband of the respondent. The courts considered the allegation of the appellant that property No. 285-B is owned by the respondent and not by her husband. The appellant had produced a copy of Income Tax Returns of the respondent for establishing his claim. However, the High Court rejected the said claim on finding that the alphabet `B appearing after number 285 under the head of rental incomes was wrongly written in the Income Tax Return of the respondent. Moreover, the High Court found that the appellant had himself stated in his pleadings that property no. 285-B belonged to the husband of the respondent and not to the respondent. Also, with regard to property No. A-2/53 at Kirti Nagar which is also owned by the husband of the respondent, the courts found that it is being used by M/s. Jaishree Granites Pvt. Ltd. as godown for the stock of the marble and granite.11. So far as property bearing No. D-201, Mansarovar Garden, New Delhi is concerned, the appellant made a case that the entire property including the ground floor of property No. D-201 was available to the respondent which could have been suitably used for running her sons business as it was located on the main road and in a market area also. The courts noted that the appellant has admitted in his cross-examination that the first floor and second floor of the property No. D-201 is in occupation of brother-in-law (Devar) of the respondent who is carrying on his business in the said premises. The court also noted that in his cross examination, the appellant has suggested that if not on the first or second floor, respondents son can occupy the basement of property No. D-201. Having so noted, the High Court has observed that the appellant impliedly admitting that the husband of the respondent is not the owner of the ground floor of property No. D-201. The courts also noted that the appellant has not specifically pleaded in his written submissions that the ground floor of property No. D-201 is owned by the husband of the respondent. In such facts and circumstances, the courts recorded concurrent finding of fact that ground floor of property No. D-201 does not belong to husband of the respondent and thus the question of its suitability as an alternate accommodation does not arise in the present case.12. In light of the above, Additional Rent Controller and the High Court rightly concluded that no alternative premise was lying vacant for running business of respondents son. The High Court rightly relied on the ratio of Anil Bajaj & Anr v. Vinod Ahuja, 2014(1) R.C.R.(Rent) 484 : 2014(2) R.C.R.(Civil) 974 : 2014(3) Recent Apex Judgments (R.A.J.) 220 : 2014 (6) SCALE 572 to hold that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to from which shop her son should start the business from.13. The concurrent findings recorded by the courts below are based on evidence and materials on record, we do not find any infirmity warranting interference with the impugned judgment.
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Chinnamuthu Gounder And Ors. Etc Vs. P.A.S. Perumal Chettiar | situate in an inam village which is an estate within the meaning of the Madras Estates Lands Act (Act 1 of 1908) as originally enacted. The plaintiff claimed that he and his predecessors in title were ryots under the inamdars of the village and that the defendants were lesees and were only under-tenants. The defence of the defendants who are appellants before us was that the plaintiff and his predecessor in title were land-holders and not ryots and that the defendants had occupy rights by long possession and by virtue of the provisions of the aforesaid Act.2. The trial Court, the lower appellate court and High Court have negatived the contentions of the appellants. It has been concurrently found that the plaintiff and his predecessors were ryots under the inamdar and that the appellants were only under-tenants under leases granted by the predecessors in title of the plaintiff. In other words it has been held that the plaintiff is the occupancy tenant and that the defendants were also cultivating tenants. In order to determine the point which has been pressed before us it is unnecessary to state other facts.3. The sole question on which arguments have been addressed is whether the civil court had jurisdiction to decree the suit in respect of possession in the presence of the provisions of the Madras Cultivating Tenants Protection Act 1955 (Act XXV of 1955) hereinafter called the Act Section 2 (a) defines "cultivating tenant" to mean a person who carries on personal cultivation on any land under a tenancy agreement and includes any person who continues in possession after the determination of the tenancy agreement as also the heirs of such person. According to the provisions of Section 3 no cultivating tenant shall be evicted from the holding at the instance of the landlord whether in execution of a decree or order of a court or otherwise; but that in subject to sub-section (2) which contains the various contingencies in which the tenant cannot claim the protection of the Act. Clause (d) which appears in the exceptions reads "who has wilfully denied the title of the landlord to the land." According to Explanation I a denial of the landlords title under the bona fide mistake of fact is not wilful within the meaning of the aforesaid clause. Sections 6 and 6-A are material for our purpose and may be reproduced:S. 6: "No civil shall, except to the extent specified in Section 3 (3), have jurisdiction in respect of any matter which the Revenue Divisional Officer is empowered by or under this Act to determine and no injunction shall be granted by any court in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."S. 6A: "If in any suit before any Court for possession of, or injunction in relation to, any land, it is proved by affidavit or otherwise that the defendant is a cultivating tenant entitled to the benefits of this Act, the court shall not proceed with the trial of the suit but shall transfer it to the Divisional Officer who shall thereupon deal with and dispose of it as though it were an application under this Act and all the provisions of this Act shall apply to such an application and the applicant."The clear import of S. 6A is that in any suit before any civil court for possession if the defendant proves not only that he is a cultivating tenant but also that he is entitled to the benefits of the Act the civil court is bound to transfer it to the Revenue Divisional Officer and cannot proceed to try and dispose it of itself. In the present case it has been found by the High Court as also by the trial court that the appellants had wilfully denied the title of the respondent who is the landlord. They thus become disentitled to the benefits under the Act. Consequently the civil court had jurisdiction to proceed with the trial and there was no question of its transferring the suit to the Revenue Divisional Officer.There has been a consistent course of decisions of the Madras High Court that in order to attract the applicability of Section 6-A both the conditions must co-exist, namely, the defendant must be a cultivating tenant within the meaning of the Act and he should be entitled to the benefits of the Act. If both these conditions are not satisfied no question of any transfer under Section 6-A will arise.The civil court may have to determine, for the purpose of coming to the conclusion, whether a suit had to be transferred under Section 6-A, certain questions which are within the jurisdiction of the revenue court under the Act. But that cannot affect the interpretation of the words "cultivating tenant entitled to the benefits of the Act". In V. Kuppuswami v. Sri Subramaniaswami Devasthanam, (1958) 1 Mad LJ 208 this view was clearly expressed by the Madras High Court. In a later Bench decision in M. S. Ramachandra Sastrigal v. Kuppuswami Vanniar, (1961) 1 Mad LJ 335 the existence of a third condition was also emphasised. It was said that Section 6-A would become applicable if the defendant is a cultivating tenant and is entitled to the benefits of the Act and further he must show that on a transfer of the proceedings to the Revenue Divisional Officer he would be in a position to obtain one or the other statutory reliefs provided for in his favour under the Act. It is unnecessary, in the present case, to deal with the third requirement mentioned in the judgment of the Division Bench. The appellants have been clearly found to have wilfully denied the title of the landlord. That disentitled them to the benefits of the Act by virtue of the provisions contained in Section 3 (2) (d). The trial of the suit was thus competent in the civil court which had complete jurisdiction to dispose of the same. | 0[ds]The clear import of S. 6A is that in any suit before any civil court for possession if the defendant proves not only that he is a cultivating tenant but also that he is entitled to the benefits of the Act the civil court is bound to transfer it to the Revenue Divisional Officer and cannot proceed to try and dispose it of itself. In the present case it has been found by the High Court as also by the trial court that the appellants had wilfully denied the title of the respondent who is the landlord. They thus become disentitled to the benefits under the Act. Consequently the civil court had jurisdiction to proceed with the trial and there was no question of its transferring the suit to the Revenue Divisional Officer.There has been a consistent course of decisions of the Madras High Court that in order to attract the applicability of Section 6-A both the conditions must co-exist, namely, the defendant must be a cultivating tenant within the meaning of the Act and he should be entitled to the benefits of the Act. If both these conditions are not satisfied no question of any transfer under Section 6-A will arise.The civil court may have to determine, for the purpose of coming to the conclusion, whether a suit had to be transferred under Section 6-A, certain questions which are within the jurisdiction of the revenue court under the Act. But that cannot affect the interpretation of the words "cultivating tenant entitled to the benefits of the Act". In V. Kuppuswami v. Sri Subramaniaswami Devasthanam, (1958) 1 Mad LJ 208 this view was clearly expressed by the Madras High Court. In a later Bench decision in M. S. Ramachandra Sastrigal v. Kuppuswami Vanniar, (1961) 1 Mad LJ 335 the existence of a third condition was also emphasised. It was said that Section 6-A would become applicable if the defendant is a cultivating tenant and is entitled to the benefits of the Act and further he must show that on a transfer of the proceedings to the Revenue Divisional Officer he would be in a position to obtain one or the other statutory reliefs provided for in his favour under the Act. It is unnecessary, in the present case, to deal with the third requirement mentioned in the judgment of the Division Bench. The appellants have been clearly found to have wilfully denied the title of the landlord. That disentitled them to the benefits of the Act by virtue of the provisions contained in Section 3 (2) (d). The trial of the suit was thus competent in the civil court which had complete jurisdiction to dispose of the same. | 0 | 1,138 | 486 | ### Instruction:
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situate in an inam village which is an estate within the meaning of the Madras Estates Lands Act (Act 1 of 1908) as originally enacted. The plaintiff claimed that he and his predecessors in title were ryots under the inamdars of the village and that the defendants were lesees and were only under-tenants. The defence of the defendants who are appellants before us was that the plaintiff and his predecessor in title were land-holders and not ryots and that the defendants had occupy rights by long possession and by virtue of the provisions of the aforesaid Act.2. The trial Court, the lower appellate court and High Court have negatived the contentions of the appellants. It has been concurrently found that the plaintiff and his predecessors were ryots under the inamdar and that the appellants were only under-tenants under leases granted by the predecessors in title of the plaintiff. In other words it has been held that the plaintiff is the occupancy tenant and that the defendants were also cultivating tenants. In order to determine the point which has been pressed before us it is unnecessary to state other facts.3. The sole question on which arguments have been addressed is whether the civil court had jurisdiction to decree the suit in respect of possession in the presence of the provisions of the Madras Cultivating Tenants Protection Act 1955 (Act XXV of 1955) hereinafter called the Act Section 2 (a) defines "cultivating tenant" to mean a person who carries on personal cultivation on any land under a tenancy agreement and includes any person who continues in possession after the determination of the tenancy agreement as also the heirs of such person. According to the provisions of Section 3 no cultivating tenant shall be evicted from the holding at the instance of the landlord whether in execution of a decree or order of a court or otherwise; but that in subject to sub-section (2) which contains the various contingencies in which the tenant cannot claim the protection of the Act. Clause (d) which appears in the exceptions reads "who has wilfully denied the title of the landlord to the land." According to Explanation I a denial of the landlords title under the bona fide mistake of fact is not wilful within the meaning of the aforesaid clause. Sections 6 and 6-A are material for our purpose and may be reproduced:S. 6: "No civil shall, except to the extent specified in Section 3 (3), have jurisdiction in respect of any matter which the Revenue Divisional Officer is empowered by or under this Act to determine and no injunction shall be granted by any court in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."S. 6A: "If in any suit before any Court for possession of, or injunction in relation to, any land, it is proved by affidavit or otherwise that the defendant is a cultivating tenant entitled to the benefits of this Act, the court shall not proceed with the trial of the suit but shall transfer it to the Divisional Officer who shall thereupon deal with and dispose of it as though it were an application under this Act and all the provisions of this Act shall apply to such an application and the applicant."The clear import of S. 6A is that in any suit before any civil court for possession if the defendant proves not only that he is a cultivating tenant but also that he is entitled to the benefits of the Act the civil court is bound to transfer it to the Revenue Divisional Officer and cannot proceed to try and dispose it of itself. In the present case it has been found by the High Court as also by the trial court that the appellants had wilfully denied the title of the respondent who is the landlord. They thus become disentitled to the benefits under the Act. Consequently the civil court had jurisdiction to proceed with the trial and there was no question of its transferring the suit to the Revenue Divisional Officer.There has been a consistent course of decisions of the Madras High Court that in order to attract the applicability of Section 6-A both the conditions must co-exist, namely, the defendant must be a cultivating tenant within the meaning of the Act and he should be entitled to the benefits of the Act. If both these conditions are not satisfied no question of any transfer under Section 6-A will arise.The civil court may have to determine, for the purpose of coming to the conclusion, whether a suit had to be transferred under Section 6-A, certain questions which are within the jurisdiction of the revenue court under the Act. But that cannot affect the interpretation of the words "cultivating tenant entitled to the benefits of the Act". In V. Kuppuswami v. Sri Subramaniaswami Devasthanam, (1958) 1 Mad LJ 208 this view was clearly expressed by the Madras High Court. In a later Bench decision in M. S. Ramachandra Sastrigal v. Kuppuswami Vanniar, (1961) 1 Mad LJ 335 the existence of a third condition was also emphasised. It was said that Section 6-A would become applicable if the defendant is a cultivating tenant and is entitled to the benefits of the Act and further he must show that on a transfer of the proceedings to the Revenue Divisional Officer he would be in a position to obtain one or the other statutory reliefs provided for in his favour under the Act. It is unnecessary, in the present case, to deal with the third requirement mentioned in the judgment of the Division Bench. The appellants have been clearly found to have wilfully denied the title of the landlord. That disentitled them to the benefits of the Act by virtue of the provisions contained in Section 3 (2) (d). The trial of the suit was thus competent in the civil court which had complete jurisdiction to dispose of the same.
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0
### Explanation:
The clear import of S. 6A is that in any suit before any civil court for possession if the defendant proves not only that he is a cultivating tenant but also that he is entitled to the benefits of the Act the civil court is bound to transfer it to the Revenue Divisional Officer and cannot proceed to try and dispose it of itself. In the present case it has been found by the High Court as also by the trial court that the appellants had wilfully denied the title of the respondent who is the landlord. They thus become disentitled to the benefits under the Act. Consequently the civil court had jurisdiction to proceed with the trial and there was no question of its transferring the suit to the Revenue Divisional Officer.There has been a consistent course of decisions of the Madras High Court that in order to attract the applicability of Section 6-A both the conditions must co-exist, namely, the defendant must be a cultivating tenant within the meaning of the Act and he should be entitled to the benefits of the Act. If both these conditions are not satisfied no question of any transfer under Section 6-A will arise.The civil court may have to determine, for the purpose of coming to the conclusion, whether a suit had to be transferred under Section 6-A, certain questions which are within the jurisdiction of the revenue court under the Act. But that cannot affect the interpretation of the words "cultivating tenant entitled to the benefits of the Act". In V. Kuppuswami v. Sri Subramaniaswami Devasthanam, (1958) 1 Mad LJ 208 this view was clearly expressed by the Madras High Court. In a later Bench decision in M. S. Ramachandra Sastrigal v. Kuppuswami Vanniar, (1961) 1 Mad LJ 335 the existence of a third condition was also emphasised. It was said that Section 6-A would become applicable if the defendant is a cultivating tenant and is entitled to the benefits of the Act and further he must show that on a transfer of the proceedings to the Revenue Divisional Officer he would be in a position to obtain one or the other statutory reliefs provided for in his favour under the Act. It is unnecessary, in the present case, to deal with the third requirement mentioned in the judgment of the Division Bench. The appellants have been clearly found to have wilfully denied the title of the landlord. That disentitled them to the benefits of the Act by virtue of the provisions contained in Section 3 (2) (d). The trial of the suit was thus competent in the civil court which had complete jurisdiction to dispose of the same.
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Naresh Kumar @ Nitu Vs. The State Of Himachal Pradesh | called to the Police Station at 1.00 P.M. and asked to put his signatures on certain documents. The witness denied any search, seizure and recovery from the appellant in his presence. If an independent witness was available, and relied upon by the prosecution, his evidence could not be discarded without reason, to hold that the police version was the truth. Additional submissions were made with regard to non-compliance with Section 50 of the Act, as there was personal search also, and that the complainant himself could not be the investigating officer. Reliance was placed on Basappa vs. State of Karnataka, 2014 (5) SCC 154 that if two views were possible, the acquittal ought not to have been interfered with in appeal.6. We have considered the submissions on behalf of the parties, and also examined the evidence and other materials on record.7. The public bus, on which the appellant was traveling, was going from Nerwa to Chamunda. The ticket issued to the appellant Exhibit DX, proved by the bus Conductor DW-2, bears the time of issuance 6.51 A.M., visible to the naked eye. The distance from Nerwa to Majhotli, is 26 kms. as deposed by DW-1. We find substance in the submission on behalf of the appellant, that the travelling time for the bus, in the hills, for this distance would be one hour or more. Prima facie, the prosecution story that the appellant was apprehended at Majhotli at 6.15 A.M. becomes seriously doubtful if not impossible. The bus would have reached Majhotli at about 8.00 A.M. or thereafter only. The conclusion of the High Court that passage of time, and memory loss, were sufficient explanation for the time difference, is held to be perverse, and without proper consideration of Exhibit DX. PW-2, the independent witness has stated that he was stopped at Majhotli by the police at 10.30 A.M. and was allowed to leave after verification of his motor cycle papers. The witness has specifically denied that the appellant was apprehended in his presence and that any search, seizure and recovery was conducted in his presence. He had deposed that he was called to the police station at 1:00 P.M. and asked to sign the papers. The witness was declared hostile. This aspect has not been considered by the High Court, which proceeded on the only assumption that the signatures were admitted.8. In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused. Karamjit Singh vs. State (Delhi Administration), AIR 2003 SC 1311 , is distinguishable on its facts as independent witness had refused to sign because of the fear of terrorists. Likewise S. Jeevananthanan vs. State, 2004(5) SCC 230, also does not appear to be a case where independent witnesses were available.9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417 , observing:-“58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.”10. In the facts of the present case, and the nature of evidence as discussed, the prosecution had failed to establish the foundational facts beyond all reasonable doubt. The special judge committed no error in acquitting the appellant. The High Court ought not to have interfered with the same. The submissions regarding non-compliance with Section 50 of the Act, or that the complainant could not be the investigating officer are not considered necessary to deal with in the facts of the case.11. In Basappa (supra), it was observed that the High Court before setting aside an order of acquittal was required to record a finding that the conclusions of the Trial Court were so perverse and wholly unreasonable, so as not to be a plausible view by misreading and incorrect appreciation of evidence. The conclusions of the High Court in the facts of the present case are more speculative, based on conjectures and surmises, contrary to the weight of the evidence on record. | 1[ds]We find substance in the submission on behalf of the appellant, that the travelling time for the bus, in the hills, for this distance would be one hour or more. Prima facie, the prosecution story that the appellant was apprehended at Majhotli at 6.15 A.M. becomes seriously doubtful if not impossible. The bus would have reached Majhotli at about 8.00 A.M. or thereafter only. The conclusion of the High Court that passage of time, and memory loss, were sufficient explanation for the time difference, is held to be perverse, and without proper consideration of Exhibit DX.the independent witness has stated that he was stopped at Majhotli by the police at 10.30 A.M. and was allowed to leave after verification of his motor cycle papers. The witness has specifically denied that the appellant was apprehended in his presence and that any search, seizure and recovery was conducted in his presence. He had deposed that he was called to the police station at 1:00 P.M. and asked to sign the papers. The witness was declared hostile. This aspect has not been considered by the High Court, which proceeded on the only assumption that the signatures were admitted.8. In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused. Karamjit Singh vs. State (Delhi Administration), AIR 2003 SC 1311 , is distinguishable on its facts as independent witness had refused to sign because of the fear of terrorists. Likewise S. Jeevananthanan vs. State, 2004(5) SCC 230, also does not appear to be a case where independent witnesses were available.9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability.In the facts of the present case, and the nature of evidence as discussed, the prosecution had failed to establish the foundational facts beyond all reasonable doubt. The special judge committed no error in acquitting the appellant. The High Court ought not to have interfered with the same. The submissions regardingwith Section 50 of the Act, or that the complainant could not be the investigating officer are not considered necessary to deal with in the facts of the case.11. In Basappa (supra), it was observed that the High Court before setting aside an order of acquittal was required to record a finding that the conclusions of the Trial Court were so perverse and wholly unreasonable, so as not to be a plausible view by misreading and incorrect appreciation of evidence. The conclusions of the High Court in the facts of the present case are more speculative, based on conjectures and surmises, contrary to the weight of the evidence on record. | 1 | 1,667 | 664 | ### 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:
called to the Police Station at 1.00 P.M. and asked to put his signatures on certain documents. The witness denied any search, seizure and recovery from the appellant in his presence. If an independent witness was available, and relied upon by the prosecution, his evidence could not be discarded without reason, to hold that the police version was the truth. Additional submissions were made with regard to non-compliance with Section 50 of the Act, as there was personal search also, and that the complainant himself could not be the investigating officer. Reliance was placed on Basappa vs. State of Karnataka, 2014 (5) SCC 154 that if two views were possible, the acquittal ought not to have been interfered with in appeal.6. We have considered the submissions on behalf of the parties, and also examined the evidence and other materials on record.7. The public bus, on which the appellant was traveling, was going from Nerwa to Chamunda. The ticket issued to the appellant Exhibit DX, proved by the bus Conductor DW-2, bears the time of issuance 6.51 A.M., visible to the naked eye. The distance from Nerwa to Majhotli, is 26 kms. as deposed by DW-1. We find substance in the submission on behalf of the appellant, that the travelling time for the bus, in the hills, for this distance would be one hour or more. Prima facie, the prosecution story that the appellant was apprehended at Majhotli at 6.15 A.M. becomes seriously doubtful if not impossible. The bus would have reached Majhotli at about 8.00 A.M. or thereafter only. The conclusion of the High Court that passage of time, and memory loss, were sufficient explanation for the time difference, is held to be perverse, and without proper consideration of Exhibit DX. PW-2, the independent witness has stated that he was stopped at Majhotli by the police at 10.30 A.M. and was allowed to leave after verification of his motor cycle papers. The witness has specifically denied that the appellant was apprehended in his presence and that any search, seizure and recovery was conducted in his presence. He had deposed that he was called to the police station at 1:00 P.M. and asked to sign the papers. The witness was declared hostile. This aspect has not been considered by the High Court, which proceeded on the only assumption that the signatures were admitted.8. In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused. Karamjit Singh vs. State (Delhi Administration), AIR 2003 SC 1311 , is distinguishable on its facts as independent witness had refused to sign because of the fear of terrorists. Likewise S. Jeevananthanan vs. State, 2004(5) SCC 230, also does not appear to be a case where independent witnesses were available.9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417 , observing:-“58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.”10. In the facts of the present case, and the nature of evidence as discussed, the prosecution had failed to establish the foundational facts beyond all reasonable doubt. The special judge committed no error in acquitting the appellant. The High Court ought not to have interfered with the same. The submissions regarding non-compliance with Section 50 of the Act, or that the complainant could not be the investigating officer are not considered necessary to deal with in the facts of the case.11. In Basappa (supra), it was observed that the High Court before setting aside an order of acquittal was required to record a finding that the conclusions of the Trial Court were so perverse and wholly unreasonable, so as not to be a plausible view by misreading and incorrect appreciation of evidence. The conclusions of the High Court in the facts of the present case are more speculative, based on conjectures and surmises, contrary to the weight of the evidence on record.
### Response:
1
### Explanation:
We find substance in the submission on behalf of the appellant, that the travelling time for the bus, in the hills, for this distance would be one hour or more. Prima facie, the prosecution story that the appellant was apprehended at Majhotli at 6.15 A.M. becomes seriously doubtful if not impossible. The bus would have reached Majhotli at about 8.00 A.M. or thereafter only. The conclusion of the High Court that passage of time, and memory loss, were sufficient explanation for the time difference, is held to be perverse, and without proper consideration of Exhibit DX.the independent witness has stated that he was stopped at Majhotli by the police at 10.30 A.M. and was allowed to leave after verification of his motor cycle papers. The witness has specifically denied that the appellant was apprehended in his presence and that any search, seizure and recovery was conducted in his presence. He had deposed that he was called to the police station at 1:00 P.M. and asked to sign the papers. The witness was declared hostile. This aspect has not been considered by the High Court, which proceeded on the only assumption that the signatures were admitted.8. In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused. Karamjit Singh vs. State (Delhi Administration), AIR 2003 SC 1311 , is distinguishable on its facts as independent witness had refused to sign because of the fear of terrorists. Likewise S. Jeevananthanan vs. State, 2004(5) SCC 230, also does not appear to be a case where independent witnesses were available.9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability.In the facts of the present case, and the nature of evidence as discussed, the prosecution had failed to establish the foundational facts beyond all reasonable doubt. The special judge committed no error in acquitting the appellant. The High Court ought not to have interfered with the same. The submissions regardingwith Section 50 of the Act, or that the complainant could not be the investigating officer are not considered necessary to deal with in the facts of the case.11. In Basappa (supra), it was observed that the High Court before setting aside an order of acquittal was required to record a finding that the conclusions of the Trial Court were so perverse and wholly unreasonable, so as not to be a plausible view by misreading and incorrect appreciation of evidence. The conclusions of the High Court in the facts of the present case are more speculative, based on conjectures and surmises, contrary to the weight of the evidence on record.
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New India Assurance Co. Ltd Vs. Kendra Devi | P. Sathasivam, J. 1) Leave granted.2) Questioning the orders of the High Court of Uttaranchal at Nainital dated 24.08.2004 in A.O. No. 436 of 2001 and dated 27.10.2005 in R.A. No.8 of 2005, New India Assurance Company Ltd. through its Regional Manager, New Delhi has filed the above appeal. 3) Brief facts are as follows: Smt. Kendra Devi, respondent No.1 herein, filed Claim Petition - M.A.C. No.4 of 1994, before the Motor Accident Claims Tribunal, Uttarkashi, claiming compensation of Rs.4,67,000/- on account of death of her husband in a motor vehicle accident. According to respondent No.1 herein, her husband, Prakash Singh Parmar, was the owner and driver of Taxi No. UMX 491. On 10.11.1993 while her husband was going from Matali to Uttarkashi, he lost control over the vehicle and met with an accident due to which the vehicle rolled into the river Bhagirathi near Barrthi. Her husband sustained fatal injuries in the accident and succumbed to the injuries at the spot. According to respondent No.1, at the time of the accident her husband was earning Rs.3000/- per month.4) Before the Tribunal, the appellant, New India Assurance Co. Ltd. contended that the vehicle was insured only for five persons whereas it was carrying eight passengers, therefore, the owner and driver of the vehicle violated the terms and conditions of the Insurance Policy, in view of the same, they are not liable to pay compensation to the claimants. The Tribunal, based on the materials before it, after finding that the driver of the vehicle had valid licence and taking note of the age of the deceased i.e., 50 years, by applying multiplier of ten, awarded a total compensation of Rs.1,25,000/- along with interest @ 12%. Aggrieved by the said award, the Insurance Company filed an appeal before the High Court. The High Court, after finding no infirmity and illegality in the order passed by the Motor Accident Claims Tribunal, dismissed the appeal and the review application filed by the Insurance Company was also dismissed. Against the said orders of the High Court, the New India Assurance Company Ltd. filed the present appeal. 5) Heard learned counsel appearing for the appellant-New India Assurance Company as well as the respondents-claimants. 6) The only contention of the learned counsel for the appellant-Insurance Company, is that inasmuch as the insurance policy was issued for “paid driver” and not for “owner” who also happened to drive the vehicle himself at the time of the accident. In support of his contention, learned counsel drew our attention to the Insurance Policy (Annexure P-3). Perusal of the Schedule of Premium mentioned in the Insurance Policy, shows that apart from liability to public risk, the owner has paid premium only for “paid driver and/or conductor”. By contending that in the case on hand, the deceased being the owner-cum-driver and without additional premium/coverage for owner-cum-driver, the insurance company is not liable to pay any compensation for death of the deceased who was owner-cum-driver and not paid driver as mentioned in the Schedule of Premium. In support of his contention, learned counsel for the appellant heavily relied on Section 147 of the Motor Vehicles Act, 1988 which speaks about the statutory liabilities and a decision of this Court in New India Assurance Co. Ltd. Vs. Meera Bai & Ors., (2006) 9 SCC 174. 7) We have carefully considered the above provision as well the decision of this Court. Taking note of the peculiar fact that the claimants have lost their only breadwinner, we are not inclined to interfere with the concurrent orders of the Tribunal as well as the High Court. | 0[ds]7) We have carefully considered the above provision as well the decision of this Court. Taking note of the peculiar fact that the claimants have lost their only breadwinner, we are not inclined to interfere with the concurrent orders of the Tribunal as well as the High Court. | 0 | 681 | 56 | ### 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:
P. Sathasivam, J. 1) Leave granted.2) Questioning the orders of the High Court of Uttaranchal at Nainital dated 24.08.2004 in A.O. No. 436 of 2001 and dated 27.10.2005 in R.A. No.8 of 2005, New India Assurance Company Ltd. through its Regional Manager, New Delhi has filed the above appeal. 3) Brief facts are as follows: Smt. Kendra Devi, respondent No.1 herein, filed Claim Petition - M.A.C. No.4 of 1994, before the Motor Accident Claims Tribunal, Uttarkashi, claiming compensation of Rs.4,67,000/- on account of death of her husband in a motor vehicle accident. According to respondent No.1 herein, her husband, Prakash Singh Parmar, was the owner and driver of Taxi No. UMX 491. On 10.11.1993 while her husband was going from Matali to Uttarkashi, he lost control over the vehicle and met with an accident due to which the vehicle rolled into the river Bhagirathi near Barrthi. Her husband sustained fatal injuries in the accident and succumbed to the injuries at the spot. According to respondent No.1, at the time of the accident her husband was earning Rs.3000/- per month.4) Before the Tribunal, the appellant, New India Assurance Co. Ltd. contended that the vehicle was insured only for five persons whereas it was carrying eight passengers, therefore, the owner and driver of the vehicle violated the terms and conditions of the Insurance Policy, in view of the same, they are not liable to pay compensation to the claimants. The Tribunal, based on the materials before it, after finding that the driver of the vehicle had valid licence and taking note of the age of the deceased i.e., 50 years, by applying multiplier of ten, awarded a total compensation of Rs.1,25,000/- along with interest @ 12%. Aggrieved by the said award, the Insurance Company filed an appeal before the High Court. The High Court, after finding no infirmity and illegality in the order passed by the Motor Accident Claims Tribunal, dismissed the appeal and the review application filed by the Insurance Company was also dismissed. Against the said orders of the High Court, the New India Assurance Company Ltd. filed the present appeal. 5) Heard learned counsel appearing for the appellant-New India Assurance Company as well as the respondents-claimants. 6) The only contention of the learned counsel for the appellant-Insurance Company, is that inasmuch as the insurance policy was issued for “paid driver” and not for “owner” who also happened to drive the vehicle himself at the time of the accident. In support of his contention, learned counsel drew our attention to the Insurance Policy (Annexure P-3). Perusal of the Schedule of Premium mentioned in the Insurance Policy, shows that apart from liability to public risk, the owner has paid premium only for “paid driver and/or conductor”. By contending that in the case on hand, the deceased being the owner-cum-driver and without additional premium/coverage for owner-cum-driver, the insurance company is not liable to pay any compensation for death of the deceased who was owner-cum-driver and not paid driver as mentioned in the Schedule of Premium. In support of his contention, learned counsel for the appellant heavily relied on Section 147 of the Motor Vehicles Act, 1988 which speaks about the statutory liabilities and a decision of this Court in New India Assurance Co. Ltd. Vs. Meera Bai & Ors., (2006) 9 SCC 174. 7) We have carefully considered the above provision as well the decision of this Court. Taking note of the peculiar fact that the claimants have lost their only breadwinner, we are not inclined to interfere with the concurrent orders of the Tribunal as well as the High Court.
### Response:
0
### Explanation:
7) We have carefully considered the above provision as well the decision of this Court. Taking note of the peculiar fact that the claimants have lost their only breadwinner, we are not inclined to interfere with the concurrent orders of the Tribunal as well as the High Court.
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The State Of Kerala And Others Vs. The Cochin Coal Company Ltd | In the case on hand, the part of the coal delivered could and would certainly have been used by the ship during the period of her stay in the harbour for loading and if such stay were prolonged owing to unforeseen causes even the entire coal might have been exhausted and of course it would have to be used till the ship left the limits of the port and the limits of State territory. The crucial fact therefore was that the coal was delivered to the actual consumer who was at liberty to consume it wherever he desired- the choice depending on his convenience and necessity. 7. In the circumstances, therefore, learned Counsel for the respondent was right in his submission that the sale of the "bunker coal" by the assessee-company fell within the Explanation to Art. 286(1)(a).If there were nothing more and the liability of the assessee had to be judged with reference to the charge imposed by the Sales-tax Act of the State, read in the light of the Constitution, the tax liability of the respondent-company would not have been open to doubt or dispute. But the submission of learned Counsel was that the State Government had power to exempt sales of any particular designated type from tax liability under S. 6 of the Sales-tax Act, and that the Government had by a notification dated February 5, 1954, and published in the official Gazette, exempted sales such as by the respondent-company in the present case from the levy of sales-tax during the assessment years now in question. The exemption under this notification was no doubt not referred to by the learned Judges of the High Court but had been one of the grounds on which the sales-tax appellate authority had set aside the tax imposition by the Sales-tax Officer and the point had been specifically urged in the petition filed in the High Court under Art. 226, and the respondent cannot, therefore, be denied the benefit of the notification if it applied. 8. Section 6 of the Travancore-Cochin Sales-tax Act enacts :"The Government may, by notification in the Gazette, make an exemption........ in respect of any tax payable under this Act: (i) on the sale of any specified class of goods at all points or at any specified point or points in the series of sales by successive dealers; or (ii) of any specified class of persons in regard to the whole or any part of their turnover." It is not necessary to set out the rest of the section. In the Travancore-Cochin Gazette dated February 16, 1954, the following notification dated February 5, 1954, appeared:"According to the interpretation given by the Supreme Court to Art. 286(1) of the Constitution in their judgment in the State of Bombay v. United Motors India Ltd. certain categories of inter-State transactions come within the taxing powers of the State Government. While the judgment enables the Government of Travancore-Cochin to levy sales-tax on certain categories of non-resident dealers selling goods for delivery and consumption in Travancore-Cochin State from the 1st April 1951, the Government have, after due consideration, decided to levy sales-tax on such transactions only from the 1st April 1953-the date immediately following that on which the Supreme Court delivered its judgment and to forgo the levy prior to that date." 9. Then followed provisions detailing the interim arrangements for submission of returns, of declarations to be filed and the manner in which the tax should be assessed and paid. Though the learned Counsel for the appellant-State urged that the notification could not have the statutory effect of granting exemption, we are clearly of the opinion that this was and must be deemed to be one issued in exercise of the power conferred on the State Government by S.6(1) whose relevant terms we have already extracted. Besides, this is rather a curious submission to make in view of what had transpired earlier. The Appellate Assistant Commissioner who set aside the assessment of the respondent-company stated in his order "Even if it is considered that the sale is for consumption in this State, the company need not pay tax on the turnover since Government have exempted from payment of tax on the sales which took place before April 1, 1953." When this appellate order was set aside by the Deputy Commissioner acting suo motu in revision, there is no reference made to the notification in the order and it was not stated that it had no statutory effect. In its petition to the High court under Art. 226, the respondent-company claimed the benefit of the exemption granted by notification dated February 5, 1954, and published in the Gazette of February 16, 1954, relating to the assessment for the period April 1, 1951, to April 1, 1953, and it added that the assessment in question came within the exemption contained in the Gazette notification. In answer to this a counter affidavit was filed by the sales-tax officer who said : "the notification referred to in the petitioners affidavit has no application to the case as the sales in question did not come within their orbit." In other words, the objection was not that the notification was not a statutory exercise of the power under S. 6(1) and effective to grant an exemption to the cases covered by it, but that the transactions of the respondent-company were not covered by the notification. The extract we have quoted from the notification shows that it is specially designed to afford relief to cases of non-resident dealers engaged in inter-State transactions which were held to be intra-State transactions by reason of the application of the Explanation to Art. 286(1)(a) to such sales by the decision of this Court in the United Motors case, (AIR 1953 SC 252 ). As the respondent-companys transactions in question clearly fall within the notification by reason of their nature as well as the assessment years concerned, the respondent-company would be entitled to the benefit of the tax exemption conferred by the notification. | 0[ds]There is no doubt that the goods having originally been located in Candle Island in Madras State were moved out of that State by reason of the contract of sale into the territory of Travancore-Cochin. It had therefore an inter-State element which rendered the Explanation applicable. The delivery was admittedly effected in the State of Travancore-Cochin as a direct result of that sale and was trimmed into the steam-ships in the Cochin waters. If the purpose of the delivery was not export as we have held earlier, it must follow that in the circumstances of this case it was for the purpose of consumption in the State since the delivery was to the ultimate consumer who was to use the goods for his own purposes and not for the purpose of re-export or with a view to other transactions of a commercial character in the goods. It would be noticed that the ultimate buyer-the steam-ship company could, if it desired, consume the goods in the sense of exhaust the goods by consumption within the State or it could take it outside the State and consume it there, but that was a matter of its choice, dependent on its will and pleasure. This would not therefore detract from the delivery to it being for consumption within the State. Goods might be consumed either by destruction or by way of use depending on the nature of the goods. Thus edible articles are generally consumed in a literal sense while other articles like clothing or furniture etc. are consumed by being used, though they are not destroyed by such use. If edible articles are sold and delivered to an ultimate consumer within a State, it is delivered for the purpose of consumption within the State, notwithstanding, that the buyer may not choose to consume the whole of his purchase within the State but takes part of it outside the State and consumes it there. If, for instance, a vehicle is sold to the actual user and the sale is not in the course of export or with a view to further commercial transactions in it by the purchaser by way of resale etc., the delivery to the user is for the purpose of his consumption within the State. The fact that such a purchaser might in the exercise of the enjoyment of his property-by way of use or "consumption" -drive the vehicle to other States does not detract from the original delivery to him falling within the Explanation to Art. 286(1)(a). In the present case, the coal having been delivered into the ship for being consumed by it, it was open to the master of the vessel to use the coal while the ship was in the waters of Travancore-Cochin, or if he so chose take it outside those limits. The position might be different if the buyer were obliged by contract or by law not to use or consume the goods sold within the State of delivery, i. e., where he has no choice to consume it there. In the case on hand, the part of the coal delivered could and would certainly have been used by the ship during the period of her stay in the harbour for loading and if such stay were prolonged owing to unforeseen causes even the entire coal might have been exhausted and of course it would have to be used till the ship left the limits of the port and the limits of State territory. The crucial fact therefore was that the coal was delivered to the actual consumer who was at liberty to consume it wherever he desired- the choice depending on his convenience and necessity9. Then followed provisions detailing the interim arrangements for submission of returns, of declarations to be filed and the manner in which the tax should be assessed and paid. Though the learned Counsel for the appellant-State urged that the notification could not have the statutory effect of granting exemption, we are clearly of the opinion that this was and must be deemed to be one issued in exercise of the power conferred on the State Government by S.6(1) whose relevant terms we have already extracted. Besides, this is rather a curious submission to make in view of what had transpired earlier. The Appellate Assistant Commissioner who set aside the assessment of the respondent-company stated in his order "Even if it is considered that the sale is for consumption in this State, the company need not pay tax on the turnover since Government have exempted from payment of tax on the sales which took place before April 1, 1953." When this appellate order was set aside by the Deputy Commissioner acting suo motu in revision, there is no reference made to the notification in the order and it was not stated that it had no statutory effect. In its petition to the High court under Art. 226, the respondent-company claimed the benefit of the exemption granted by notification dated February 5, 1954, and published in the Gazette of February 16, 1954, relating to the assessment for the period April 1, 1951, to April 1, 1953, and it added that the assessment in question came within the exemption contained in the Gazette notification. In answer to this a counter affidavit was filed by the sales-tax officer who said : "the notification referred to in the petitioners affidavit has no application to the case as the sales in question did not come within their orbit." In other words, the objection was not that the notification was not a statutory exercise of the power under S. 6(1) and effective to grant an exemption to the cases covered by it, but that the transactions of the respondent-company were not covered by the notification. The extract we have quoted from the notification shows that it is specially designed to afford relief to cases of non-resident dealers engaged in inter-State transactions which were held to be intra-State transactions by reason of the application of the Explanation to Art. 286(1)(a) to such sales by the decision of this Court in the United Motors case, (AIR 1953 SC 252 ). As the respondent-companys transactions in question clearly fall within the notification by reason of their nature as well as the assessment years concerned, the respondent-company would be entitled to the benefit of the tax exemption conferred by the notification. | 0 | 3,544 | 1,156 | ### 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:
In the case on hand, the part of the coal delivered could and would certainly have been used by the ship during the period of her stay in the harbour for loading and if such stay were prolonged owing to unforeseen causes even the entire coal might have been exhausted and of course it would have to be used till the ship left the limits of the port and the limits of State territory. The crucial fact therefore was that the coal was delivered to the actual consumer who was at liberty to consume it wherever he desired- the choice depending on his convenience and necessity. 7. In the circumstances, therefore, learned Counsel for the respondent was right in his submission that the sale of the "bunker coal" by the assessee-company fell within the Explanation to Art. 286(1)(a).If there were nothing more and the liability of the assessee had to be judged with reference to the charge imposed by the Sales-tax Act of the State, read in the light of the Constitution, the tax liability of the respondent-company would not have been open to doubt or dispute. But the submission of learned Counsel was that the State Government had power to exempt sales of any particular designated type from tax liability under S. 6 of the Sales-tax Act, and that the Government had by a notification dated February 5, 1954, and published in the official Gazette, exempted sales such as by the respondent-company in the present case from the levy of sales-tax during the assessment years now in question. The exemption under this notification was no doubt not referred to by the learned Judges of the High Court but had been one of the grounds on which the sales-tax appellate authority had set aside the tax imposition by the Sales-tax Officer and the point had been specifically urged in the petition filed in the High Court under Art. 226, and the respondent cannot, therefore, be denied the benefit of the notification if it applied. 8. Section 6 of the Travancore-Cochin Sales-tax Act enacts :"The Government may, by notification in the Gazette, make an exemption........ in respect of any tax payable under this Act: (i) on the sale of any specified class of goods at all points or at any specified point or points in the series of sales by successive dealers; or (ii) of any specified class of persons in regard to the whole or any part of their turnover." It is not necessary to set out the rest of the section. In the Travancore-Cochin Gazette dated February 16, 1954, the following notification dated February 5, 1954, appeared:"According to the interpretation given by the Supreme Court to Art. 286(1) of the Constitution in their judgment in the State of Bombay v. United Motors India Ltd. certain categories of inter-State transactions come within the taxing powers of the State Government. While the judgment enables the Government of Travancore-Cochin to levy sales-tax on certain categories of non-resident dealers selling goods for delivery and consumption in Travancore-Cochin State from the 1st April 1951, the Government have, after due consideration, decided to levy sales-tax on such transactions only from the 1st April 1953-the date immediately following that on which the Supreme Court delivered its judgment and to forgo the levy prior to that date." 9. Then followed provisions detailing the interim arrangements for submission of returns, of declarations to be filed and the manner in which the tax should be assessed and paid. Though the learned Counsel for the appellant-State urged that the notification could not have the statutory effect of granting exemption, we are clearly of the opinion that this was and must be deemed to be one issued in exercise of the power conferred on the State Government by S.6(1) whose relevant terms we have already extracted. Besides, this is rather a curious submission to make in view of what had transpired earlier. The Appellate Assistant Commissioner who set aside the assessment of the respondent-company stated in his order "Even if it is considered that the sale is for consumption in this State, the company need not pay tax on the turnover since Government have exempted from payment of tax on the sales which took place before April 1, 1953." When this appellate order was set aside by the Deputy Commissioner acting suo motu in revision, there is no reference made to the notification in the order and it was not stated that it had no statutory effect. In its petition to the High court under Art. 226, the respondent-company claimed the benefit of the exemption granted by notification dated February 5, 1954, and published in the Gazette of February 16, 1954, relating to the assessment for the period April 1, 1951, to April 1, 1953, and it added that the assessment in question came within the exemption contained in the Gazette notification. In answer to this a counter affidavit was filed by the sales-tax officer who said : "the notification referred to in the petitioners affidavit has no application to the case as the sales in question did not come within their orbit." In other words, the objection was not that the notification was not a statutory exercise of the power under S. 6(1) and effective to grant an exemption to the cases covered by it, but that the transactions of the respondent-company were not covered by the notification. The extract we have quoted from the notification shows that it is specially designed to afford relief to cases of non-resident dealers engaged in inter-State transactions which were held to be intra-State transactions by reason of the application of the Explanation to Art. 286(1)(a) to such sales by the decision of this Court in the United Motors case, (AIR 1953 SC 252 ). As the respondent-companys transactions in question clearly fall within the notification by reason of their nature as well as the assessment years concerned, the respondent-company would be entitled to the benefit of the tax exemption conferred by the notification.
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### Explanation:
sale and was trimmed into the steam-ships in the Cochin waters. If the purpose of the delivery was not export as we have held earlier, it must follow that in the circumstances of this case it was for the purpose of consumption in the State since the delivery was to the ultimate consumer who was to use the goods for his own purposes and not for the purpose of re-export or with a view to other transactions of a commercial character in the goods. It would be noticed that the ultimate buyer-the steam-ship company could, if it desired, consume the goods in the sense of exhaust the goods by consumption within the State or it could take it outside the State and consume it there, but that was a matter of its choice, dependent on its will and pleasure. This would not therefore detract from the delivery to it being for consumption within the State. Goods might be consumed either by destruction or by way of use depending on the nature of the goods. Thus edible articles are generally consumed in a literal sense while other articles like clothing or furniture etc. are consumed by being used, though they are not destroyed by such use. If edible articles are sold and delivered to an ultimate consumer within a State, it is delivered for the purpose of consumption within the State, notwithstanding, that the buyer may not choose to consume the whole of his purchase within the State but takes part of it outside the State and consumes it there. If, for instance, a vehicle is sold to the actual user and the sale is not in the course of export or with a view to further commercial transactions in it by the purchaser by way of resale etc., the delivery to the user is for the purpose of his consumption within the State. The fact that such a purchaser might in the exercise of the enjoyment of his property-by way of use or "consumption" -drive the vehicle to other States does not detract from the original delivery to him falling within the Explanation to Art. 286(1)(a). In the present case, the coal having been delivered into the ship for being consumed by it, it was open to the master of the vessel to use the coal while the ship was in the waters of Travancore-Cochin, or if he so chose take it outside those limits. The position might be different if the buyer were obliged by contract or by law not to use or consume the goods sold within the State of delivery, i. e., where he has no choice to consume it there. In the case on hand, the part of the coal delivered could and would certainly have been used by the ship during the period of her stay in the harbour for loading and if such stay were prolonged owing to unforeseen causes even the entire coal might have been exhausted and of course it would have to be used till the ship left the limits of the port and the limits of State territory. The crucial fact therefore was that the coal was delivered to the actual consumer who was at liberty to consume it wherever he desired- the choice depending on his convenience and necessity9. Then followed provisions detailing the interim arrangements for submission of returns, of declarations to be filed and the manner in which the tax should be assessed and paid. Though the learned Counsel for the appellant-State urged that the notification could not have the statutory effect of granting exemption, we are clearly of the opinion that this was and must be deemed to be one issued in exercise of the power conferred on the State Government by S.6(1) whose relevant terms we have already extracted. Besides, this is rather a curious submission to make in view of what had transpired earlier. The Appellate Assistant Commissioner who set aside the assessment of the respondent-company stated in his order "Even if it is considered that the sale is for consumption in this State, the company need not pay tax on the turnover since Government have exempted from payment of tax on the sales which took place before April 1, 1953." When this appellate order was set aside by the Deputy Commissioner acting suo motu in revision, there is no reference made to the notification in the order and it was not stated that it had no statutory effect. In its petition to the High court under Art. 226, the respondent-company claimed the benefit of the exemption granted by notification dated February 5, 1954, and published in the Gazette of February 16, 1954, relating to the assessment for the period April 1, 1951, to April 1, 1953, and it added that the assessment in question came within the exemption contained in the Gazette notification. In answer to this a counter affidavit was filed by the sales-tax officer who said : "the notification referred to in the petitioners affidavit has no application to the case as the sales in question did not come within their orbit." In other words, the objection was not that the notification was not a statutory exercise of the power under S. 6(1) and effective to grant an exemption to the cases covered by it, but that the transactions of the respondent-company were not covered by the notification. The extract we have quoted from the notification shows that it is specially designed to afford relief to cases of non-resident dealers engaged in inter-State transactions which were held to be intra-State transactions by reason of the application of the Explanation to Art. 286(1)(a) to such sales by the decision of this Court in the United Motors case, (AIR 1953 SC 252 ). As the respondent-companys transactions in question clearly fall within the notification by reason of their nature as well as the assessment years concerned, the respondent-company would be entitled to the benefit of the tax exemption conferred by the notification.
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Syscon Consultants P.Ltd Vs. M/S Primella Sanitary Prod.P.Ltd | situation, we are of the view that the equity lies in favour of grant of decree for specific performance of the contract in respect of the share of the Appellant rather than refusing the same. In any event if the Appellant and/or his sister have claim as regard the arrears of rent, the same can be adjudicated upon by the appropriate court in an appropriate proceeding. We are, therefore, unable to accept the said contention of Mr Talwar.”56. In Gajara Vishnu Gosavi v. Prakash Nanasaheb Kamble and others. (2009) 10 SCC 654 ), at paragraphs- 9 to 13, it has been held that:“9. Be that as it may, three courts have recorded the concurrent findings of fact that partition had never been given effect to in respect of the suit property. Therefore, Housabai could transfer her share. But the question does arise as to whether without partition by metes and bounds, she could put her vendee Anjirabai in possession.10. In Kartar Singh v. Harjinder Singh (1990) 3 SCC 517 : AIR 1990 SC 854 , this Court held that where the shares are separable and a party enters into an agreement even for sale of share belonging to other co-sharer, a suit for specific performance was maintainable at least for the share of the executor of the agreement, if not for the share of other co-sharers. It was further observed:“6. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold, the vendee has a right to apply for the partition of the property and get the share demarcated.”11. In a recent judgment in Ramdas v. Sitabai and Ors. (2009) 7 SCC 444 : JT (2009) 8 SC 224 to which one of us (Dr. B.S. Chauhan J.) was a party placing reliance upon two earlier judgments of this Court in M.V.S. Manikayala Rao v. M. Narasimhaswami and Ors. AIR 1966 SC 470 ; and Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh and Ors. AIR 1953 SC 487 this Court came to the conclusion that a purchaser of a coparceners undivided interest in the joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property.12. There is another aspect of the matter. An agricultural land belonging to the coparceners/co-sharers may be in their joint possession. The sale of undivided share by one co-sharer may be unlawful/ illegal as various statutes put an embargo on fragmentation of holdings below the prescribed extent.13. Thus, in view of the above, the law emerges to the effect that in a given case an undivided share of a coparcener can be a subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the co-sharers.”57. The vehement contention, advanced by learned Senior Counsel Shri Dhruv Mehta, based on Article 2177 of the Portuguese Civil Code, 1867 that there was an absolute bar for transfer of any portion of the estate or a specific item of the estate, need not detain us both on account of factual matrix and on law. As we have already noted hereinabove, Defendants 1-8 had already given up on their right in the suit property by not taking steps to avoid the distress sale at the instance of the Bank. Though, there are different translated versions of the provision, we may extract Article 2177 as provided by Defendants 7 and 8 in their Appeal:“It is not lawful to a co-owner, however, to dispose a specific part of the thing held indivisibly, without the same being allotted to him in partition; and a transfer of the right, which he has to the share belonging to him, may be restricted in accordance with the law.”Suffice it to say, Article 2177 does not prohibit alienation of undivided interest, which is in tune with the principle underlying Section 44 of the Transfer of Property Act, 1882.58. The conduct of the Defendants 7 and 8 also needs to be specifically commented on. Despite specifically getting reserved a liberty to proceed further after the redemption of the property by the Plaintiff, nothing was done by them. They also did not exercise their right of preemption available under the Portuguese Law. Conspicuously, none of the defendants entered the witness box despite the voluminous and clinching evidence tendered by the Plaintiff, obviously to avoid inconvenient questions, particularly, based on PW-1/F extracted hereinabove. In that view of the matter, it is also not necessary to deal with the various other contentions advanced by learned Senior Counsel on both sides since they have no bearing on the ultimate conclusion.59. In our view, no substantial or grave injustice is caused to the Defendants: on the contrary, the justice of the case, on facts, is in favour of the Plaintiff, and therefore, no interference under Article 136 of the Constitution of India is required. Once, it is found that justice of the case on facts does not require interference, this Court, even at the appellate stage, is well within its discretion to stay its hands off, as held in Taherakhatoon (D) by Lrs. v. Salambin Mohammad (1999) 2 SCC 635 ).60. Thus, viewed from any angle, justice was done to the Plaintiff as per the decree granted to them by the High Court and no injustice is caused to the Defendants, in particular, Defendant No. 9, who, with open eyes, purchased litigation. As we have decided not to interfere with the judgment of the High Court in favour of the Plaintiff, we also dismiss the Plaintiff’s appeal against the impugned judgment seeking the entire property. | 0[ds]48. In view of the conduct of the parties, which we have explained above, we do not think that this is a fit case to exercise our discretionary jurisdiction under Article 136 of the Constitution of India. Three prominent features of this case stare us in the face. First and foremost, on reading the correspondence between the parties, we are satisfied that the Plaintiff has throughout been ready and willing to perform its obligations under the Agreement to Sell. In particular, a reference may be made to the letters dated 08.04.1986 and 15.04.1987 and the legal notice dated 08.04.1987. The other unique feature of this case is that the suit property is an island off the coast of Goa which is not readily capable of valuation – indeed when asked to give us the present market value, both sides were unable to do so. This fact also shows that monetary compensation would not suffice and be an adequate alternative to specific performance.The third unique feature of this case is that, as has been pointed out hereinabove, the Plaintiff went to the extent of discharging the mortgage with the Bank by paying a sum of Rs.17 lakhs which was almost three times the amount of the consideration mentioned in the agreement, i.e., Rs.9 of the Agreement to Sell is set outthe Vendor fails and or neglects to complete the sale after the title being made out as aforesaid or otherwise to carry out any one or more of the obligations on his part as herein contained or enjoyed upon by any law for the time being in force the Purchaser shall be at liberty to enforce specific performance of this Agreement or recover the earnest money with interest at 21% per annum.It is clear that Defendants 1 to 6 failed or neglected to complete the sale even after clear title was made out when the obstacle of the mortgage was removed. Clause 9 specifically states that if after the title is made out, the vendor fails and neglects to complete the sale, and/or to carry out any of the obligations on his part as contained in the Agreement, the purchaser shall be at liberty to enforce specific performance of the Agreement or recover the earnest money with interest at 21 per cent per annum at their option. Having clearly opted throughout to enforce specific performance, we are of the view that justice of the case requires that Clause 9 must be applied in favour of the Plaintiff. After inducing the plaintiff as per PW-1/F letter to pay Rs.17 lakhs to the cooperative bank to clear the dues on the clear understanding that the defendants 1 to 8 would thereafter execute the sale deed, they cannot go back. The clear title stood made out at that stage and the agreement was enforceable thereafter.There is also a long line of judgments based on the equitable principle which states that even if the undivided share of one of the other heirs of the property cannot be transferred, the remaining share of the other heirs certainly can be transferred.Thus, viewed from any angle, justice was done to the Plaintiff as per the decree granted to them by the High Court and no injustice is caused to the Defendants, in particular, Defendant No. 9, who, with open eyes, purchased litigation. As we have decided not to interfere with the judgment of the High Court in favour of the Plaintiff, we also dismiss theappeal against the impugned judgment seeking the entire property. | 0 | 10,096 | 629 | ### 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:
situation, we are of the view that the equity lies in favour of grant of decree for specific performance of the contract in respect of the share of the Appellant rather than refusing the same. In any event if the Appellant and/or his sister have claim as regard the arrears of rent, the same can be adjudicated upon by the appropriate court in an appropriate proceeding. We are, therefore, unable to accept the said contention of Mr Talwar.”56. In Gajara Vishnu Gosavi v. Prakash Nanasaheb Kamble and others. (2009) 10 SCC 654 ), at paragraphs- 9 to 13, it has been held that:“9. Be that as it may, three courts have recorded the concurrent findings of fact that partition had never been given effect to in respect of the suit property. Therefore, Housabai could transfer her share. But the question does arise as to whether without partition by metes and bounds, she could put her vendee Anjirabai in possession.10. In Kartar Singh v. Harjinder Singh (1990) 3 SCC 517 : AIR 1990 SC 854 , this Court held that where the shares are separable and a party enters into an agreement even for sale of share belonging to other co-sharer, a suit for specific performance was maintainable at least for the share of the executor of the agreement, if not for the share of other co-sharers. It was further observed:“6. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold, the vendee has a right to apply for the partition of the property and get the share demarcated.”11. In a recent judgment in Ramdas v. Sitabai and Ors. (2009) 7 SCC 444 : JT (2009) 8 SC 224 to which one of us (Dr. B.S. Chauhan J.) was a party placing reliance upon two earlier judgments of this Court in M.V.S. Manikayala Rao v. M. Narasimhaswami and Ors. AIR 1966 SC 470 ; and Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh and Ors. AIR 1953 SC 487 this Court came to the conclusion that a purchaser of a coparceners undivided interest in the joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property.12. There is another aspect of the matter. An agricultural land belonging to the coparceners/co-sharers may be in their joint possession. The sale of undivided share by one co-sharer may be unlawful/ illegal as various statutes put an embargo on fragmentation of holdings below the prescribed extent.13. Thus, in view of the above, the law emerges to the effect that in a given case an undivided share of a coparcener can be a subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the co-sharers.”57. The vehement contention, advanced by learned Senior Counsel Shri Dhruv Mehta, based on Article 2177 of the Portuguese Civil Code, 1867 that there was an absolute bar for transfer of any portion of the estate or a specific item of the estate, need not detain us both on account of factual matrix and on law. As we have already noted hereinabove, Defendants 1-8 had already given up on their right in the suit property by not taking steps to avoid the distress sale at the instance of the Bank. Though, there are different translated versions of the provision, we may extract Article 2177 as provided by Defendants 7 and 8 in their Appeal:“It is not lawful to a co-owner, however, to dispose a specific part of the thing held indivisibly, without the same being allotted to him in partition; and a transfer of the right, which he has to the share belonging to him, may be restricted in accordance with the law.”Suffice it to say, Article 2177 does not prohibit alienation of undivided interest, which is in tune with the principle underlying Section 44 of the Transfer of Property Act, 1882.58. The conduct of the Defendants 7 and 8 also needs to be specifically commented on. Despite specifically getting reserved a liberty to proceed further after the redemption of the property by the Plaintiff, nothing was done by them. They also did not exercise their right of preemption available under the Portuguese Law. Conspicuously, none of the defendants entered the witness box despite the voluminous and clinching evidence tendered by the Plaintiff, obviously to avoid inconvenient questions, particularly, based on PW-1/F extracted hereinabove. In that view of the matter, it is also not necessary to deal with the various other contentions advanced by learned Senior Counsel on both sides since they have no bearing on the ultimate conclusion.59. In our view, no substantial or grave injustice is caused to the Defendants: on the contrary, the justice of the case, on facts, is in favour of the Plaintiff, and therefore, no interference under Article 136 of the Constitution of India is required. Once, it is found that justice of the case on facts does not require interference, this Court, even at the appellate stage, is well within its discretion to stay its hands off, as held in Taherakhatoon (D) by Lrs. v. Salambin Mohammad (1999) 2 SCC 635 ).60. Thus, viewed from any angle, justice was done to the Plaintiff as per the decree granted to them by the High Court and no injustice is caused to the Defendants, in particular, Defendant No. 9, who, with open eyes, purchased litigation. As we have decided not to interfere with the judgment of the High Court in favour of the Plaintiff, we also dismiss the Plaintiff’s appeal against the impugned judgment seeking the entire property.
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### Explanation:
48. In view of the conduct of the parties, which we have explained above, we do not think that this is a fit case to exercise our discretionary jurisdiction under Article 136 of the Constitution of India. Three prominent features of this case stare us in the face. First and foremost, on reading the correspondence between the parties, we are satisfied that the Plaintiff has throughout been ready and willing to perform its obligations under the Agreement to Sell. In particular, a reference may be made to the letters dated 08.04.1986 and 15.04.1987 and the legal notice dated 08.04.1987. The other unique feature of this case is that the suit property is an island off the coast of Goa which is not readily capable of valuation – indeed when asked to give us the present market value, both sides were unable to do so. This fact also shows that monetary compensation would not suffice and be an adequate alternative to specific performance.The third unique feature of this case is that, as has been pointed out hereinabove, the Plaintiff went to the extent of discharging the mortgage with the Bank by paying a sum of Rs.17 lakhs which was almost three times the amount of the consideration mentioned in the agreement, i.e., Rs.9 of the Agreement to Sell is set outthe Vendor fails and or neglects to complete the sale after the title being made out as aforesaid or otherwise to carry out any one or more of the obligations on his part as herein contained or enjoyed upon by any law for the time being in force the Purchaser shall be at liberty to enforce specific performance of this Agreement or recover the earnest money with interest at 21% per annum.It is clear that Defendants 1 to 6 failed or neglected to complete the sale even after clear title was made out when the obstacle of the mortgage was removed. Clause 9 specifically states that if after the title is made out, the vendor fails and neglects to complete the sale, and/or to carry out any of the obligations on his part as contained in the Agreement, the purchaser shall be at liberty to enforce specific performance of the Agreement or recover the earnest money with interest at 21 per cent per annum at their option. Having clearly opted throughout to enforce specific performance, we are of the view that justice of the case requires that Clause 9 must be applied in favour of the Plaintiff. After inducing the plaintiff as per PW-1/F letter to pay Rs.17 lakhs to the cooperative bank to clear the dues on the clear understanding that the defendants 1 to 8 would thereafter execute the sale deed, they cannot go back. The clear title stood made out at that stage and the agreement was enforceable thereafter.There is also a long line of judgments based on the equitable principle which states that even if the undivided share of one of the other heirs of the property cannot be transferred, the remaining share of the other heirs certainly can be transferred.Thus, viewed from any angle, justice was done to the Plaintiff as per the decree granted to them by the High Court and no injustice is caused to the Defendants, in particular, Defendant No. 9, who, with open eyes, purchased litigation. As we have decided not to interfere with the judgment of the High Court in favour of the Plaintiff, we also dismiss theappeal against the impugned judgment seeking the entire property.
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Birajmohan Das Gupta & Another Vs. State of Orissa & Others | personal knowledge of any such determination on the part of the minister. They based their allegation on an alleged talk between the minister and two citizens of Cuttack, namely, a municipal councillor and an advocate. No affidavit, however, of the two persons concerned has been filed to support this allegation. In the circumstances we are of opinion that it was not necessary for the minister to file an affidavit for the allegation on behalf of the petitioners was also based on hearsay and it has been contradicted by similar evidence on behalf of the State. It would have been a different matter if the two persons concerned had made affidavits from personal knowledge. There is, therefore, no force in this contention and we are of opinion that it cannot be said on the facts of this case that the minister was biased.7. Re. 3 and 4.- We propose to take these points together. We are of opinion that the petitioners cannot be allowed to raise these points for the first time in arguments before us, for there is no mention of these points in their petitions. It appears that in an affidavit filed in connection with stay, something was said on these two points; but the stay matter was never pursued and never came up before this Court for hearing. In the circumstances there was no reply from the State Government to these allegations. We are of opinion that the petitioners cannot be allowed to raise these points now for the first time in arguments when they did not raise them in their petitions and consequently reject them.8. Re. 5.- It is contended that under R. 3 (vi) of the Orissa Rules, the draft scheme or the approved scheme has to be published in the official gazette under Sections 68D and 68E and has to contain certain particulars including the actual date of operating the route. Now what happened in this case is that the draft scheme mentioned the date of operation as April 1, 196l. This was in accordance with R. 3 (vi). When the final scheme was published, this date was not mentioned in it. We will assume that R. 3 (vi) requires that when the final scheme was published the date should have been mentioned. It seems to us that the rule so read has been substantially complied with, for the notification publishing the final scheme refers to the draft scheme and says that the draft scheme is approved and there is no mention of any modification. In the circumstances it would in our opinion be not unreasonable to read the date April 1, 1961, incorporated in the final scheme by reference to the draft scheme. It would have been a different matter if the draft scheme also did not contain the date of operation. We are, therefore, of opinion that there has been substantial compliance with R. 3 (vi), and the final scheme cannot be said to be bad for non-compliance with the rule. We, therefore, reject this contention.9. Re. 6.- It is urged in this connection that the Transport Controller had no authority to publish the draft scheme. It is also urged that the Transport Controller is not the State Transport Undertaking and the notification under S. 68C does not show that the State Transport Undertaking was of opinion that it was necessary to take over certain transport services for the purpose mentioned in that section. The argument as raised before us is really two-fold. In the first place it is urged that the Transport Controller had no authority to publish the scheme. There is, however, no force in this contention, for S. 68C requires that after the State Transport Undertaking has formed the opinion required thereunder and prepared a scheme it shall cause the scheme to be published. The Transport Controller is the chief officer of the State Transport Undertaking and we see nothing irregular if he publishes the scheme prepared under S. 68C. The section lays down that after the scheme has been prepared in the manner provided thereunder, the State Transport Undertaking shall cause it to be published, which means that some officer of the Undertaking will have it published in the gazette. In the present case, the chief officer of the Undertaking has got it published and this in our opinion is in sufficient compliance with S. 68C.10. The other part of the argument is that the notification under S. 68C does not show that it was the State Transport Undertaking which was satisfied that it was necessary to take action under that section, for it says that "I, Colonel S. K. Ray, Indian Army (Retd.), Transport Controller, Orissa, incharge of State Transport Undertaking, Orissa, am of opinion that for the purpose of providing an efficient, adequate and economical and properly co-ordinated road transport service it is necessary..........."The argument is that it was not the State Transport Undertaking which was satisfied but Col. S. K. Ray, Transport Controller, who formed the necessary opinion under S. 68C. We find that this point was also not taken in the petitions. All that was said in the petitions was that the Transport Controller was only in-charge of the transport services in the State and there was no State Transport Undertaking in the State of Orissa within the meaning of Cl. (b) of S. 68A of the Act. This case has been abandoned; what is now contended is that even though there may be a State Transport Undertaking in Orissa that Undertaking was not satisfied that it was necessary to take action in the manner provided in S. 68C. This in our opinion is a question of fact and should have been specifically pleaded in the petitions so that the State may have been able to make a reply. In the absence, therefore, of any averment on this question of fact we are not prepared to allow the petitioners to raise this point in arguments before us. In the circumstances we reject this contention also. | 0[ds]4. On these facts we are of opinion that there is no force in the contention raised on behalf of the petitioner What R. 8 of the Orissa Rules requires is that ten days clear notice has to be given of the time, place and date of hearing to all objectors. This was undoubtedly done, for the date originally fixed for hearing was September 16, 1960. Thereafter the hearing was postponed to September 21 at the instance of the objectors. It was in our opinion not necessary to give a fresh notice giving ten clear days as required by R. 8, for this adjourned date.Rule 8 only applies to the first date to be fixed for hearing. Thereafter it the hearing is adjourned, it is in our opinion unnecessary to give a further notice at all for the adjourned date. It was the duty of the petitioner after he had received notice of the first date to appear on that date.If he did not appear and the hearing had to be adjourned on the request of the objectors, or for any other reason, to another date, no further notice was necessary of the adjourned date. It is true that notice was given to the petitioner of the adjourned date; but that was in our opinion as a measure of abundant caution. The rule does not however require that a fresh notice must be given of the adjourned date of hearing also. In the circumstances we reject thisare of opinion that there is no force in this contention of bias based on this reply of the minister to a question put in the Legislative Assembly. The Government was asked when it was intending to take over the privately operated motor routes and its reply was really a matter of policy namely that it was the policy of the Government to take over all the routes eliminating all private operators from April 1, 1961. This did not mean that even if, for example, the scheme was not ready or if the scheme put forth was found by the Government to be open to objection, the Government would still force through the taking over of the privately operated routes from April 1, 1961. This answer was merely an indication of the Governments policy, namely, that the Government was intending to take over all privately operated routes from April 1, 1961; but whether in actual fact that all the routes would be taken over on that date would depend upon so many circumstances including finance. It cannot be said that this announcement of the Governments policy in answer to a question put in the legislative assembly meant that the Government was determined whatever happened to eliminate all privately operated routes by April 1, 1961. We are, therefore, of opinion that the minister cannot be said to be personally biased because this policy statement was made by him in answer to a question put in the legislativeappears, however, that the petitioners also have no personal knowledge of any such determination on the part of the minister. They based their allegation on an alleged talk between the minister and two citizens of Cuttack, namely, a municipal councillor and an advocate. No affidavit, however, of the two persons concerned has been filed to support this allegation. In the circumstances we are of opinion that it was not necessary for the minister to file an affidavit for the allegation on behalf of the petitioners was also based on hearsay and it has been contradicted by similar evidence on behalf of the State. It would have been a different matter if the two persons concerned had made affidavits from personal knowledge. There is, therefore, no force in this contention and we are of opinion that it cannot be said on the facts of this case that the minister wasare of opinion that the petitioners cannot be allowed to raise these points for the first time in arguments before us, for there is no mention of these points in their petitions. It appears that in an affidavit filed in connection with stay, something was said on these two points; but the stay matter was never pursued and never came up before this Court for hearing. In the circumstances there was no reply from the State Government to these allegations. We are of opinion that the petitioners cannot be allowed to raise these points now for the first time in arguments when they did not raise them in their petitions and consequently rejectwill assume that R. 3 (vi) requires that when the final scheme was published the date should have been mentioned. It seems to us that the rule so read has been substantially complied with, for the notification publishing the final scheme refers to the draft scheme and says that the draft scheme is approved and there is no mention of any modification. In the circumstances it would in our opinion be not unreasonable to read the date April 1, 1961, incorporated in the final scheme by reference to the draft scheme. It would have been a different matter if the draft scheme also did not contain the date of operation. We are, therefore, of opinion that there has been substantial compliance with R. 3 (vi), and the final scheme cannot be said to be bad for non-compliance with the rule. We, therefore, reject thisis, however, no force in this contention, for S. 68C requires that after the State Transport Undertaking has formed the opinion required thereunder and prepared a scheme it shall cause the scheme to be published. The Transport Controller is the chief officer of the State Transport Undertaking and we see nothing irregular if he publishes the scheme prepared under S. 68C. The section lays down that after the scheme has been prepared in the manner provided thereunder, the State Transport Undertaking shall cause it to be published, which means that some officer of the Undertaking will have it published in the gazette. In the present case, the chief officer of the Undertaking has got it published and this in our opinion is in sufficient compliance with S.find that this point was also not taken in the petitions. All that was said in the petitions was that the Transport Controller was only in-charge of the transport services in the State and there was no State Transport Undertaking in the State of Orissa within the meaning of Cl. (b) of S. 68A of the Act. This case has been abandoned; what is now contended is that even though there may be a State Transport Undertaking in Orissa that Undertaking was not satisfied that it was necessary to take action in the manner provided in S. 68C. This in our opinion is a question of fact and should have been specifically pleaded in the petitions so that the State may have been able to make a reply. In the absence, therefore, of any averment on this question of fact we are not prepared to allow the petitioners to raise this point in arguments before us. In the circumstances we reject this contention also. | 0 | 2,502 | 1,286 | ### 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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personal knowledge of any such determination on the part of the minister. They based their allegation on an alleged talk between the minister and two citizens of Cuttack, namely, a municipal councillor and an advocate. No affidavit, however, of the two persons concerned has been filed to support this allegation. In the circumstances we are of opinion that it was not necessary for the minister to file an affidavit for the allegation on behalf of the petitioners was also based on hearsay and it has been contradicted by similar evidence on behalf of the State. It would have been a different matter if the two persons concerned had made affidavits from personal knowledge. There is, therefore, no force in this contention and we are of opinion that it cannot be said on the facts of this case that the minister was biased.7. Re. 3 and 4.- We propose to take these points together. We are of opinion that the petitioners cannot be allowed to raise these points for the first time in arguments before us, for there is no mention of these points in their petitions. It appears that in an affidavit filed in connection with stay, something was said on these two points; but the stay matter was never pursued and never came up before this Court for hearing. In the circumstances there was no reply from the State Government to these allegations. We are of opinion that the petitioners cannot be allowed to raise these points now for the first time in arguments when they did not raise them in their petitions and consequently reject them.8. Re. 5.- It is contended that under R. 3 (vi) of the Orissa Rules, the draft scheme or the approved scheme has to be published in the official gazette under Sections 68D and 68E and has to contain certain particulars including the actual date of operating the route. Now what happened in this case is that the draft scheme mentioned the date of operation as April 1, 196l. This was in accordance with R. 3 (vi). When the final scheme was published, this date was not mentioned in it. We will assume that R. 3 (vi) requires that when the final scheme was published the date should have been mentioned. It seems to us that the rule so read has been substantially complied with, for the notification publishing the final scheme refers to the draft scheme and says that the draft scheme is approved and there is no mention of any modification. In the circumstances it would in our opinion be not unreasonable to read the date April 1, 1961, incorporated in the final scheme by reference to the draft scheme. It would have been a different matter if the draft scheme also did not contain the date of operation. We are, therefore, of opinion that there has been substantial compliance with R. 3 (vi), and the final scheme cannot be said to be bad for non-compliance with the rule. We, therefore, reject this contention.9. Re. 6.- It is urged in this connection that the Transport Controller had no authority to publish the draft scheme. It is also urged that the Transport Controller is not the State Transport Undertaking and the notification under S. 68C does not show that the State Transport Undertaking was of opinion that it was necessary to take over certain transport services for the purpose mentioned in that section. The argument as raised before us is really two-fold. In the first place it is urged that the Transport Controller had no authority to publish the scheme. There is, however, no force in this contention, for S. 68C requires that after the State Transport Undertaking has formed the opinion required thereunder and prepared a scheme it shall cause the scheme to be published. The Transport Controller is the chief officer of the State Transport Undertaking and we see nothing irregular if he publishes the scheme prepared under S. 68C. The section lays down that after the scheme has been prepared in the manner provided thereunder, the State Transport Undertaking shall cause it to be published, which means that some officer of the Undertaking will have it published in the gazette. In the present case, the chief officer of the Undertaking has got it published and this in our opinion is in sufficient compliance with S. 68C.10. The other part of the argument is that the notification under S. 68C does not show that it was the State Transport Undertaking which was satisfied that it was necessary to take action under that section, for it says that "I, Colonel S. K. Ray, Indian Army (Retd.), Transport Controller, Orissa, incharge of State Transport Undertaking, Orissa, am of opinion that for the purpose of providing an efficient, adequate and economical and properly co-ordinated road transport service it is necessary..........."The argument is that it was not the State Transport Undertaking which was satisfied but Col. S. K. Ray, Transport Controller, who formed the necessary opinion under S. 68C. We find that this point was also not taken in the petitions. All that was said in the petitions was that the Transport Controller was only in-charge of the transport services in the State and there was no State Transport Undertaking in the State of Orissa within the meaning of Cl. (b) of S. 68A of the Act. This case has been abandoned; what is now contended is that even though there may be a State Transport Undertaking in Orissa that Undertaking was not satisfied that it was necessary to take action in the manner provided in S. 68C. This in our opinion is a question of fact and should have been specifically pleaded in the petitions so that the State may have been able to make a reply. In the absence, therefore, of any averment on this question of fact we are not prepared to allow the petitioners to raise this point in arguments before us. In the circumstances we reject this contention also.
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another date, no further notice was necessary of the adjourned date. It is true that notice was given to the petitioner of the adjourned date; but that was in our opinion as a measure of abundant caution. The rule does not however require that a fresh notice must be given of the adjourned date of hearing also. In the circumstances we reject thisare of opinion that there is no force in this contention of bias based on this reply of the minister to a question put in the Legislative Assembly. The Government was asked when it was intending to take over the privately operated motor routes and its reply was really a matter of policy namely that it was the policy of the Government to take over all the routes eliminating all private operators from April 1, 1961. This did not mean that even if, for example, the scheme was not ready or if the scheme put forth was found by the Government to be open to objection, the Government would still force through the taking over of the privately operated routes from April 1, 1961. This answer was merely an indication of the Governments policy, namely, that the Government was intending to take over all privately operated routes from April 1, 1961; but whether in actual fact that all the routes would be taken over on that date would depend upon so many circumstances including finance. It cannot be said that this announcement of the Governments policy in answer to a question put in the legislative assembly meant that the Government was determined whatever happened to eliminate all privately operated routes by April 1, 1961. We are, therefore, of opinion that the minister cannot be said to be personally biased because this policy statement was made by him in answer to a question put in the legislativeappears, however, that the petitioners also have no personal knowledge of any such determination on the part of the minister. They based their allegation on an alleged talk between the minister and two citizens of Cuttack, namely, a municipal councillor and an advocate. No affidavit, however, of the two persons concerned has been filed to support this allegation. In the circumstances we are of opinion that it was not necessary for the minister to file an affidavit for the allegation on behalf of the petitioners was also based on hearsay and it has been contradicted by similar evidence on behalf of the State. It would have been a different matter if the two persons concerned had made affidavits from personal knowledge. There is, therefore, no force in this contention and we are of opinion that it cannot be said on the facts of this case that the minister wasare of opinion that the petitioners cannot be allowed to raise these points for the first time in arguments before us, for there is no mention of these points in their petitions. It appears that in an affidavit filed in connection with stay, something was said on these two points; but the stay matter was never pursued and never came up before this Court for hearing. In the circumstances there was no reply from the State Government to these allegations. We are of opinion that the petitioners cannot be allowed to raise these points now for the first time in arguments when they did not raise them in their petitions and consequently rejectwill assume that R. 3 (vi) requires that when the final scheme was published the date should have been mentioned. It seems to us that the rule so read has been substantially complied with, for the notification publishing the final scheme refers to the draft scheme and says that the draft scheme is approved and there is no mention of any modification. In the circumstances it would in our opinion be not unreasonable to read the date April 1, 1961, incorporated in the final scheme by reference to the draft scheme. It would have been a different matter if the draft scheme also did not contain the date of operation. We are, therefore, of opinion that there has been substantial compliance with R. 3 (vi), and the final scheme cannot be said to be bad for non-compliance with the rule. We, therefore, reject thisis, however, no force in this contention, for S. 68C requires that after the State Transport Undertaking has formed the opinion required thereunder and prepared a scheme it shall cause the scheme to be published. The Transport Controller is the chief officer of the State Transport Undertaking and we see nothing irregular if he publishes the scheme prepared under S. 68C. The section lays down that after the scheme has been prepared in the manner provided thereunder, the State Transport Undertaking shall cause it to be published, which means that some officer of the Undertaking will have it published in the gazette. In the present case, the chief officer of the Undertaking has got it published and this in our opinion is in sufficient compliance with S.find that this point was also not taken in the petitions. All that was said in the petitions was that the Transport Controller was only in-charge of the transport services in the State and there was no State Transport Undertaking in the State of Orissa within the meaning of Cl. (b) of S. 68A of the Act. This case has been abandoned; what is now contended is that even though there may be a State Transport Undertaking in Orissa that Undertaking was not satisfied that it was necessary to take action in the manner provided in S. 68C. This in our opinion is a question of fact and should have been specifically pleaded in the petitions so that the State may have been able to make a reply. In the absence, therefore, of any averment on this question of fact we are not prepared to allow the petitioners to raise this point in arguments before us. In the circumstances we reject this contention also.
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Rajeev Metal Works & Lors Vs. M.M.T.C | produce a distinctly identifiable different commercial commodity. Therefore, (sic the exclusionary clause of) Section 2(1) (d) (i) is not attracted to the facts in this case 6. Having given our anxious and very careful consideration to the respective contentions, the question emerges whether the appellant- firm is a consumer. The word consumer has been defined under Section 2(1) (d) (i) and (ii) thus " (d) consumer means any person who, -(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person." * 7. Clause (i) provides that one who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, is a consumer. The admitted case is that this does not apply. The question, therefore, is whether the service of the respondent availed of by the appellants is covered under Section 2(1) (d) (ii) ? Whether the transaction is in the nature of buying the goods for a consideration which has been paid or promised? Whether the transaction in question excludes the person who obtains such goods for resale or for any commercial purpose from the purview of the Act? It is true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term consumer in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who obtains such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, legislature intended to confine the redressal to the services contracted or undertaken between the seller and the consumer defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non- supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirements from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G. P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, i. e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants intended to purchase these goods for commercial purpose, namely, to manufacture the tin sheets for resale. It is true that the word resale used in the exclusionary clause of Section 2(1) (d) (i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose. The ultimate object of the supply of the goods, namely, G. P. Sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section a(1) (d) (ii). Therefore, they would not come under Section 2(1) (d) (ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the exclusionary clause of Section 2(1) (d) (ii). Otherwise, if the construction sought to be put up by Mr Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1) (d) (i) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word consumer under Section 2(1) (d) (ii) is not attracted8. Consequentially, clause (ii) of Section 2(1) (d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1) (d) (ii) of the Act: Thereby the complaint would not lie under Section 21 of the Act. | 0[ds]7. Clause (i) provides that one who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, is a consumer. The admitted case is that this does notis true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term consumer in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who obtains such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, legislature intended to confine the redressal to the services contracted or undertaken between the seller and the consumer defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non- supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirements from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G. P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, i. e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants intended to purchase these goods for commercial purpose, namely, to manufacture the tin sheets for resale. It is true that the word resale used in the exclusionary clause of Section 2(1) (d) (i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose. The ultimate object of the supply of the goods, namely, G. P. Sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section a(1) (d) (ii). Therefore, they would not come under Section 2(1) (d) (ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the exclusionary clause of Section 2(1) (d) (ii). Otherwise, if the construction sought to be put up by Mr Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1) (d) (i) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word consumer under Section 2(1) (d) (ii) is not attracted8. Consequentially, clause (ii) of Section 2(1) (d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1) (d) (ii) of the Act: Thereby the complaint would not lie under Section 21 of the Act. | 0 | 2,779 | 806 | ### 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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produce a distinctly identifiable different commercial commodity. Therefore, (sic the exclusionary clause of) Section 2(1) (d) (i) is not attracted to the facts in this case 6. Having given our anxious and very careful consideration to the respective contentions, the question emerges whether the appellant- firm is a consumer. The word consumer has been defined under Section 2(1) (d) (i) and (ii) thus " (d) consumer means any person who, -(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person." * 7. Clause (i) provides that one who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, is a consumer. The admitted case is that this does not apply. The question, therefore, is whether the service of the respondent availed of by the appellants is covered under Section 2(1) (d) (ii) ? Whether the transaction is in the nature of buying the goods for a consideration which has been paid or promised? Whether the transaction in question excludes the person who obtains such goods for resale or for any commercial purpose from the purview of the Act? It is true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term consumer in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who obtains such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, legislature intended to confine the redressal to the services contracted or undertaken between the seller and the consumer defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non- supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirements from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G. P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, i. e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants intended to purchase these goods for commercial purpose, namely, to manufacture the tin sheets for resale. It is true that the word resale used in the exclusionary clause of Section 2(1) (d) (i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose. The ultimate object of the supply of the goods, namely, G. P. Sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section a(1) (d) (ii). Therefore, they would not come under Section 2(1) (d) (ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the exclusionary clause of Section 2(1) (d) (ii). Otherwise, if the construction sought to be put up by Mr Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1) (d) (i) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word consumer under Section 2(1) (d) (ii) is not attracted8. Consequentially, clause (ii) of Section 2(1) (d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1) (d) (ii) of the Act: Thereby the complaint would not lie under Section 21 of the Act.
### Response:
0
### Explanation:
7. Clause (i) provides that one who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, is a consumer. The admitted case is that this does notis true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term consumer in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who obtains such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, legislature intended to confine the redressal to the services contracted or undertaken between the seller and the consumer defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non- supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirements from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G. P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, i. e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants intended to purchase these goods for commercial purpose, namely, to manufacture the tin sheets for resale. It is true that the word resale used in the exclusionary clause of Section 2(1) (d) (i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose. The ultimate object of the supply of the goods, namely, G. P. Sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section a(1) (d) (ii). Therefore, they would not come under Section 2(1) (d) (ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the exclusionary clause of Section 2(1) (d) (ii). Otherwise, if the construction sought to be put up by Mr Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1) (d) (i) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word consumer under Section 2(1) (d) (ii) is not attracted8. Consequentially, clause (ii) of Section 2(1) (d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1) (d) (ii) of the Act: Thereby the complaint would not lie under Section 21 of the Act.
|
Commissioner of Income Tax, Kanpur Vs. J. K. Commercial Corporation Limited | is correct. By a deeming provision sub-section (5) gives powers to the Income-tax Officer to make a consequential correction in the assessment of a partner of a firm on the modification of the assessment of the income of the firm. Similarly, by a deeming provision engrafted in sub-section (7) on the modification of an order under section 23A in relation to the assessment of a company in appeal or revision, power has been given to the Income-tax Officer to make rectification in the computation of the total income of the shareholders as if it is a mistake apparent from the record within the meaning of section 35 making the provisions of sub-section (1) applicable to such a caseSome difficulty is presented, as we shall presently show, in view of Parikhs case from the provision of a time limit of 4 years provided in section 35(1) for the exercise of the power by the Income-tax Officer for the rectification of the mistakes apparent from the record of assessment, the starting point of the period being "date of any assessment order". In Parikhs case, this court was concerned with the interpretation of the expression "order of assessment" occurring in sub-section (3) of section 34 of the Act. In that connection, Shah J., as he then was, delivering the judgment on behalf of a Division Bench of this court, said at page 670 of 63 ITR."In each of these cases there is computation of income, determination of tax payable and procedure is prescribed for imposing liability upon the taxpayer. But still these are not orders of assessment within the meaning of section 23. The salient feature of these and other orders is that the liability to pay tax arises not from the charge created by statute, but from the order of the Income-tax Officer." 5. On the above principle an order under section 23A was held to be outside the purview of limitation provided in section 34 of the Act, as in the opinion of the court it was not an order of assessment. Doubt about the correctness of the view taken in the above case has been expressed during the course of hearing. We need not say anything about that as we constitute a Bench of equal strength. But we are clear and definite in our mind that the ratio of Parikhs case is neither applicable nor should be extended to cover the expression "assessment order" occurring in section 35(1) of the Act. In the context the said expression would include an order made under section 23A also, as such an order undoubtedly forms part of the record of assessment. Mr. Gupte, learned counsel for the respondents, in his usual fairness conceded, and rightly, that the power of rectification of mistake conferred on the Income-tax Officer under section 35(1) of the Act cannot be confined within the very narrow limit of an order of assessment made under section 23 only. Counsel submitted that it does embrace some other kinds of order relating to assessment. Having conceded so far, Mr. Gupte endeavoured in vain to take an order made under section 23A of the Act outside the purview of the power of the Income-tax Officer for rectification of mistakesIn Sankappas case, as we have said above, the same Bench which decided Parikhs case, after stating on the basis of certain earlier authorities that the word "assessment " under certain circumstances in a given context has a more comprehensive meaning, finally said at page 764 of 68 ITR thus:"It is clear that, when proceedings are taken for rectification of assessment to tax either under section 35(1) or section 35(5) of the Act of 1922, those proceedings must be held to be proceedings for assessment. In proceeding under those provisions, what the Income-tax Officer does is to correct errors in, or rectify orders of, assessment made by him, and orders making such corrections or rectifications are, therefore, clearly part of the proceedings for assessment." 6. The High Court in the judgment under appeal has extracted the above passage from Sankappas case, but allowed itself to be misled by it. Correctly appreciated, the passage means that what the Income-tax Officer does in a proceeding under section 35(1) is to correct errors in assessment or rectify orders of assessment made by him. Either of such orders is a part of the proceeding of assessment. In our considered opinion correcting an apparent error in an order made under section 23A of the Act is rectifying a mistake in the record of assessment and clearly falls within the ambit of the power conferred upon the Income-tax Officer under section 35(1) of the Act. 7. Although in the appeals before us we are concerned with the Income-tax Act of 1922 only, in passing we may make reference to the corresponding provisions in the Income-tax Act of 1961. Corresponding to section 23A of the 1922 Act is section 104 in the 1961 Act. Section 154(1) of the latter Act corresponds to section 35(1) of the former Act. Clause (a) of section 154(1) says"With a view to rectifying any mistake apparent from the record-"(a) the Income-tax Officer may amend any order of assessment or of refund or any other order passed by him... " 8. The provision so made is very precise and definite giving power to the Income-tax Officer to amend any other order passed by him apart from the order of assessment or refund. The language of section 35(1) of the 1922 Act, perhaps, is not wide enough conferring power on the Income-tax Officer to amend any order passed by him under the Act and may not be at par with the wide powers conferred on him under section 154(1)(a) of the 1961 Act. Yet it is not too narrow to cover only the order of assessment or of refund in a very restricted or limited sense. It is wide enough to take within its sweep some other orders made under the Act including an order under section 23A. 9. | 1[ds]On the above principle an order under section 23A was held to be outside the purview of limitation provided in section 34 of the Act, as in the opinion of the court it was not an order of assessment. Doubt about the correctness of the view taken in the above case has been expressed during the course of hearing. We need not say anything about that as we constitute a Bench of equal strength. But we are clear and definite in our mind that the ratio of Parikhs case is neither applicable nor should be extended to cover the expression "assessment order" occurring in section 35(1) of the Act. In the context the said expression would include an order made under section 23A also, as such an order undoubtedly forms part of the record of assessment. Mr. Gupte, learned counsel for the respondents, in his usual fairness conceded, and rightly, that the power of rectification of mistake conferred on the Income-tax Officer under section 35(1) of the Act cannot be confined within the very narrow limit of an order of assessment made under section 23 only. Counsel submitted that it does embrace some other kinds of order relating to assessmentThe High Court in the judgment under appeal has extracted the above passage from Sankappas case, but allowed itself to be misled by it. Correctly appreciated, the passage means that what the Income-tax Officer does in a proceeding under section 35(1) is to correct errors in assessment or rectify orders of assessment made by him. Either of such orders is a part of the proceeding of assessment. In our considered opinion correcting an apparent error in an order made under section 23A of the Act is rectifying a mistake in the record of assessment and clearly falls within the ambit of the power conferred upon the Income-tax Officer under section 35(1) of the ActAlthough in the appeals before us we are concerned with the Income-tax Act of 1922 only, in passing we may make reference to the corresponding provisions in the Income-tax Act of 1961. Corresponding to section 23A of the 1922 Act is section 104 in the 1961 Act. Section 154(1) of the latter Act corresponds to section 35(1) of the former Act. Clause (a) of section 154(1) says"With a view to rectifying any mistake apparent from the record-(a) the Income-tax Officer may amend any order of assessment or of refund or any other order passed by him... "The provision so made is very precise and definite giving power to the Income-tax Officer to amend any other order passed by him apart from the order of assessment or refund. The language of section 35(1) of the 1922 Act, perhaps, is not wide enough conferring power on the Income-tax Officer to amend any order passed by him under the Act and may not be at par with the wide powers conferred on him under section 154(1)(a) of the 1961 Act. Yet it is not too narrow to cover only the order of assessment or of refund in a very restricted or limited sense. It is wide enough to take within its sweep some other orders made under the Act including an order under section 23A. | 1 | 2,832 | 607 | ### 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:
is correct. By a deeming provision sub-section (5) gives powers to the Income-tax Officer to make a consequential correction in the assessment of a partner of a firm on the modification of the assessment of the income of the firm. Similarly, by a deeming provision engrafted in sub-section (7) on the modification of an order under section 23A in relation to the assessment of a company in appeal or revision, power has been given to the Income-tax Officer to make rectification in the computation of the total income of the shareholders as if it is a mistake apparent from the record within the meaning of section 35 making the provisions of sub-section (1) applicable to such a caseSome difficulty is presented, as we shall presently show, in view of Parikhs case from the provision of a time limit of 4 years provided in section 35(1) for the exercise of the power by the Income-tax Officer for the rectification of the mistakes apparent from the record of assessment, the starting point of the period being "date of any assessment order". In Parikhs case, this court was concerned with the interpretation of the expression "order of assessment" occurring in sub-section (3) of section 34 of the Act. In that connection, Shah J., as he then was, delivering the judgment on behalf of a Division Bench of this court, said at page 670 of 63 ITR."In each of these cases there is computation of income, determination of tax payable and procedure is prescribed for imposing liability upon the taxpayer. But still these are not orders of assessment within the meaning of section 23. The salient feature of these and other orders is that the liability to pay tax arises not from the charge created by statute, but from the order of the Income-tax Officer." 5. On the above principle an order under section 23A was held to be outside the purview of limitation provided in section 34 of the Act, as in the opinion of the court it was not an order of assessment. Doubt about the correctness of the view taken in the above case has been expressed during the course of hearing. We need not say anything about that as we constitute a Bench of equal strength. But we are clear and definite in our mind that the ratio of Parikhs case is neither applicable nor should be extended to cover the expression "assessment order" occurring in section 35(1) of the Act. In the context the said expression would include an order made under section 23A also, as such an order undoubtedly forms part of the record of assessment. Mr. Gupte, learned counsel for the respondents, in his usual fairness conceded, and rightly, that the power of rectification of mistake conferred on the Income-tax Officer under section 35(1) of the Act cannot be confined within the very narrow limit of an order of assessment made under section 23 only. Counsel submitted that it does embrace some other kinds of order relating to assessment. Having conceded so far, Mr. Gupte endeavoured in vain to take an order made under section 23A of the Act outside the purview of the power of the Income-tax Officer for rectification of mistakesIn Sankappas case, as we have said above, the same Bench which decided Parikhs case, after stating on the basis of certain earlier authorities that the word "assessment " under certain circumstances in a given context has a more comprehensive meaning, finally said at page 764 of 68 ITR thus:"It is clear that, when proceedings are taken for rectification of assessment to tax either under section 35(1) or section 35(5) of the Act of 1922, those proceedings must be held to be proceedings for assessment. In proceeding under those provisions, what the Income-tax Officer does is to correct errors in, or rectify orders of, assessment made by him, and orders making such corrections or rectifications are, therefore, clearly part of the proceedings for assessment." 6. The High Court in the judgment under appeal has extracted the above passage from Sankappas case, but allowed itself to be misled by it. Correctly appreciated, the passage means that what the Income-tax Officer does in a proceeding under section 35(1) is to correct errors in assessment or rectify orders of assessment made by him. Either of such orders is a part of the proceeding of assessment. In our considered opinion correcting an apparent error in an order made under section 23A of the Act is rectifying a mistake in the record of assessment and clearly falls within the ambit of the power conferred upon the Income-tax Officer under section 35(1) of the Act. 7. Although in the appeals before us we are concerned with the Income-tax Act of 1922 only, in passing we may make reference to the corresponding provisions in the Income-tax Act of 1961. Corresponding to section 23A of the 1922 Act is section 104 in the 1961 Act. Section 154(1) of the latter Act corresponds to section 35(1) of the former Act. Clause (a) of section 154(1) says"With a view to rectifying any mistake apparent from the record-"(a) the Income-tax Officer may amend any order of assessment or of refund or any other order passed by him... " 8. The provision so made is very precise and definite giving power to the Income-tax Officer to amend any other order passed by him apart from the order of assessment or refund. The language of section 35(1) of the 1922 Act, perhaps, is not wide enough conferring power on the Income-tax Officer to amend any order passed by him under the Act and may not be at par with the wide powers conferred on him under section 154(1)(a) of the 1961 Act. Yet it is not too narrow to cover only the order of assessment or of refund in a very restricted or limited sense. It is wide enough to take within its sweep some other orders made under the Act including an order under section 23A. 9.
### Response:
1
### Explanation:
On the above principle an order under section 23A was held to be outside the purview of limitation provided in section 34 of the Act, as in the opinion of the court it was not an order of assessment. Doubt about the correctness of the view taken in the above case has been expressed during the course of hearing. We need not say anything about that as we constitute a Bench of equal strength. But we are clear and definite in our mind that the ratio of Parikhs case is neither applicable nor should be extended to cover the expression "assessment order" occurring in section 35(1) of the Act. In the context the said expression would include an order made under section 23A also, as such an order undoubtedly forms part of the record of assessment. Mr. Gupte, learned counsel for the respondents, in his usual fairness conceded, and rightly, that the power of rectification of mistake conferred on the Income-tax Officer under section 35(1) of the Act cannot be confined within the very narrow limit of an order of assessment made under section 23 only. Counsel submitted that it does embrace some other kinds of order relating to assessmentThe High Court in the judgment under appeal has extracted the above passage from Sankappas case, but allowed itself to be misled by it. Correctly appreciated, the passage means that what the Income-tax Officer does in a proceeding under section 35(1) is to correct errors in assessment or rectify orders of assessment made by him. Either of such orders is a part of the proceeding of assessment. In our considered opinion correcting an apparent error in an order made under section 23A of the Act is rectifying a mistake in the record of assessment and clearly falls within the ambit of the power conferred upon the Income-tax Officer under section 35(1) of the ActAlthough in the appeals before us we are concerned with the Income-tax Act of 1922 only, in passing we may make reference to the corresponding provisions in the Income-tax Act of 1961. Corresponding to section 23A of the 1922 Act is section 104 in the 1961 Act. Section 154(1) of the latter Act corresponds to section 35(1) of the former Act. Clause (a) of section 154(1) says"With a view to rectifying any mistake apparent from the record-(a) the Income-tax Officer may amend any order of assessment or of refund or any other order passed by him... "The provision so made is very precise and definite giving power to the Income-tax Officer to amend any other order passed by him apart from the order of assessment or refund. The language of section 35(1) of the 1922 Act, perhaps, is not wide enough conferring power on the Income-tax Officer to amend any order passed by him under the Act and may not be at par with the wide powers conferred on him under section 154(1)(a) of the 1961 Act. Yet it is not too narrow to cover only the order of assessment or of refund in a very restricted or limited sense. It is wide enough to take within its sweep some other orders made under the Act including an order under section 23A.
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United India Insurance Company Limited Vs. Manjari Dilip Chunekar & Others | the company was doing extremely well till the untimely death of the deceased and after his death, the business had been affected considerably. It has also come in her evidence that she had to mortgage her jewellery to raise funds; had to send persons appointed by the Company to U.K for training; that the workers had filed cases against her in the Labour Court, and that, she has suffered losses in the business, resulting in her selling two residential flats. The said evidence that has come on record has virtually gone unchallenged. Considering the income-tax returns of all the three years, it appears that there was a rise of more than 100% in the business income of the deceased and hence, the respondent-claimants would be entitled to an addition of 50% towards future prospects. The last drawn income from business as is reflected in the income-tax returns is Rs. 3,74,686/-, after deducting tax on the same. Considering the aforesaid facts, we are of the opinion, that to the said business income, an addition of 50% would have to be made. The amount therefore, would come to Rs. 5,62,029/-. After deducting 1/3rd towards personal expenses, the amount would be Rs. 3,74,686/-. Applying the Multiplier of 14, the amount comes to Rs. 52,45,604/-. Thus, after considering both, income from salary as well as business income, the total amount of compensation that the respondent-claimants would be entitled to, would be Rs. 57,91,604/-. As far as amounts awarded under the conventional heads are concerned, the Tribunal has awarded Rs. 50,000/- towards loss of consortium to the first respondent-claimant; Rs. 25,000/- towards loss of love and affection to each of the respondent-claimant; Rs. 25,000/- towards loss of estate to each of the respondent-claimants and Rs. 10,000/- towards funeral expenses. As far as the amounts awarded under the conventional heads are concerned, keeping in mind the judicial pronouncements in this regard, we are of the opinion that the first respondent-claimant would be entitled to an amount of Rs. 1,00,000/- towards loss of consortium; the second and third respondents would be entitled to a sum of Rs. 50,000/- each towards loss of love and affection; Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses. Thus, the total compensation that would be payable to the respondent-claimants would be Rs. 60,41,604/-.32. The last issue raised by the learned Counsel for the appellant is that the interest rate of 12% p.a. granted by the Tribunal is exorbitant and on the higher side.33. We have perused the judgments of the Apex Court in this regard. The Apex Court in the case of Kaushnuma Begum (Smt) & Ors. vs. New India Assurance Company Limited & Ors. (2001) 2 SCC 9 ), noticed that the nationalised banks are granting interest @9% on fixed deposits for one year and held as follows:-"24. Now, we have to fix up the rate of interest. Section 171 of the MV Act empowers the Tribunal to direct that "in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as may be specified in this behalf". Earlier, 12% was found to be the reasonable rate of simple interest. With a change in economy and the policy of Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9% on fixed deposits for one year. We, therefore, direct that the compensation amount fixed hereinbefore shall bear interest at the rate of 9% per annum from the date of the claim made by the appellants. The amount of Rs 50,000 paid by the Insurance Company under Section 140 shall be deducted from the principal amount as on the date of its payment, and interest would be recalculated on the balance amount of the principal sum from such date."34. The Apex Court in Abati Bezbaruah v. Deputy Director General, Geological Survey of India & Anr. (2003) 3 SCC 148 ) noticed the varying rate of interest being awarded by the Tribunals, High Courts and Apex Court itself. In the said case, the Apex Court held that the rate of interest must be just and reasonable depending on the facts and circumstances of the case and should be decided after taking into consideration the relevant factors like inflation, change in economy, policy being adopted by the Reserve Bank of India from time to time, how long the case is pending, loss of enjoyment of life etc.35. Infact, the Apex Court in Puttamma & Ors. vs. K. L. Narayana Reddy & Anr. (2013) 15 SCC 45 ), kept the question open for Tribunals and Courts to decide the rate of interest, keeping in mind the rate of interest allowed by the Apex Court in similar cases and other factors such as inflation, change in economic policy adopted by the Reserve Bank of India from time to time, the period from which the case is pending, etc. Infact in Puttammas case (supra), the Apex Court enhanced the compensation @ 12% p.a. from the date of filing of the claim petition.36. Keeping in mind all the aforesaid Judgments, and after considering the peculiar facts of this case, we are of the opinion that the interest granted on the compensation amount by the Tribunal to the respondent-claimants is on the higher side. Although, the claim petition is of 1996, the delay that has occurred in the said case is not attributable to the appellant alone. Both the parties are responsible for the delay, resulting in the claim petition of 1996 being decided in 2013. As is evident from the record, the respondent-claimants sought amendment of their claim petition in 2011, which was allowed in 2012. Having regard to the same, we are of the opinion that the interest of justice would be met, if the interest granted on the aforesaid amount is reduced from 12% to 9% p.a. in the facts of the case. | 1[ds]Thus, we do not find any merit in the submission of the learned Counsel for the appellant that negligence of the driver of the offending vehicle was not proved, in the light of what is discussed hereinabove.As far as the contention of thelearned counsel for theappellant, that the income tax documents were merely marked as Articles and the contents thereof were not proved, is devoid of merit, inasmuch as, the respondentclaimants had produced Mr. Veer, anOfficer to prove the said acknowledgments of the filing of Income Tax Returns, which are at Exhibits 43 to 45. It appears from the record i.e. Exhibit 1, that the Advocate for the appellant had declined toShri S. R. Veer, when he was offered forview of the said position, it now cannot be contended that the contents thereof were not proved or that the said documents were not proved. Infact, the correctness of the said acknowledgments of Income Tax Returns, at Exhibits 43 to 45 have gone unchallenged, as is evident from the order dated 9th January, 2006. In any event, a Tribunal constituted under the Motor Vehicles Act, 1988 is not bound by the strict Rules of Evidence. Thus, there is no merit in the contention raised by thelearned counsel for theappellant, that the Income Tax documents have not been proved by the respondentg that the first respondentclaimant was admittedly the author of the income tax return filed for the yeara suggestion ought to have been given to her that the same was inflated. In the absence of any suggestion to that effect, the income mentioned in Exhibit 45 has virtually gone unchallenged. Thus, the said income of the yearcertainly be considered, while considering the income of the deceased on the date of hiswas no justification for the Tribunal to come to a conclusion that the deceased was drawing a salary of Rs. 60,000 perfar as the amounts awarded under the conventional heads are concerned, keeping in mind the judicial pronouncements in this regard, we are of the opinion that the firstwould be entitled to an amount of Rs. 1,00,000/towards loss of consortium; the second and third respondents would be entitled to a sum of Rs. 50,000/each towards loss of love and affection; Rs. 25,000/towards loss of estate and Rs. 25,000/towards funeral expenses. Thus, the total compensation that would be payable to theThe last issue raised by the learned Counsel for the appellant is that the interest rate of 12% p.a. granted by the Tribunal is exorbitant and on the higher side.Infact, the Apex Court in PuttammaOrs. vs. K. L. Narayana ReddyAnr. (2013) 15 SCC 45 ), kept the question open for Tribunals and Courts to decide the rate of interest, keeping in mind the rate of interest allowed by the Apex Court in similar cases and other factors such as inflation, change in economic policy adopted by the Reserve Bank of India from time to time, the period from which the case is pending, etc. Infact in Puttammas case (supra), the Apex Court enhanced the compensation @ 12% p.a. from the date of filing of the claim petition.36. Keeping in mind all the aforesaid Judgments, and after considering the peculiar facts of this case, we are of the opinion that the interest granted on the compensation amount by the Tribunal to theis on the higher side. Although, the claim petition is of 1996, the delay that has occurred in the said case is not attributable to the appellant alone. Both the parties are responsible for the delay, resulting in the claim petition of 1996 being decided in 2013. As is evident from the record, thesought amendment of their claim petition in 2011, which was allowed in 2012. Having regard to the same, we are of the opinion that the interest of justice would be met, if the interest granted on the aforesaid amount is reduced from 12% to 9% p.a. in the facts of the case. | 1 | 10,168 | 735 | ### 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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the company was doing extremely well till the untimely death of the deceased and after his death, the business had been affected considerably. It has also come in her evidence that she had to mortgage her jewellery to raise funds; had to send persons appointed by the Company to U.K for training; that the workers had filed cases against her in the Labour Court, and that, she has suffered losses in the business, resulting in her selling two residential flats. The said evidence that has come on record has virtually gone unchallenged. Considering the income-tax returns of all the three years, it appears that there was a rise of more than 100% in the business income of the deceased and hence, the respondent-claimants would be entitled to an addition of 50% towards future prospects. The last drawn income from business as is reflected in the income-tax returns is Rs. 3,74,686/-, after deducting tax on the same. Considering the aforesaid facts, we are of the opinion, that to the said business income, an addition of 50% would have to be made. The amount therefore, would come to Rs. 5,62,029/-. After deducting 1/3rd towards personal expenses, the amount would be Rs. 3,74,686/-. Applying the Multiplier of 14, the amount comes to Rs. 52,45,604/-. Thus, after considering both, income from salary as well as business income, the total amount of compensation that the respondent-claimants would be entitled to, would be Rs. 57,91,604/-. As far as amounts awarded under the conventional heads are concerned, the Tribunal has awarded Rs. 50,000/- towards loss of consortium to the first respondent-claimant; Rs. 25,000/- towards loss of love and affection to each of the respondent-claimant; Rs. 25,000/- towards loss of estate to each of the respondent-claimants and Rs. 10,000/- towards funeral expenses. As far as the amounts awarded under the conventional heads are concerned, keeping in mind the judicial pronouncements in this regard, we are of the opinion that the first respondent-claimant would be entitled to an amount of Rs. 1,00,000/- towards loss of consortium; the second and third respondents would be entitled to a sum of Rs. 50,000/- each towards loss of love and affection; Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses. Thus, the total compensation that would be payable to the respondent-claimants would be Rs. 60,41,604/-.32. The last issue raised by the learned Counsel for the appellant is that the interest rate of 12% p.a. granted by the Tribunal is exorbitant and on the higher side.33. We have perused the judgments of the Apex Court in this regard. The Apex Court in the case of Kaushnuma Begum (Smt) & Ors. vs. New India Assurance Company Limited & Ors. (2001) 2 SCC 9 ), noticed that the nationalised banks are granting interest @9% on fixed deposits for one year and held as follows:-"24. Now, we have to fix up the rate of interest. Section 171 of the MV Act empowers the Tribunal to direct that "in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as may be specified in this behalf". Earlier, 12% was found to be the reasonable rate of simple interest. With a change in economy and the policy of Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9% on fixed deposits for one year. We, therefore, direct that the compensation amount fixed hereinbefore shall bear interest at the rate of 9% per annum from the date of the claim made by the appellants. The amount of Rs 50,000 paid by the Insurance Company under Section 140 shall be deducted from the principal amount as on the date of its payment, and interest would be recalculated on the balance amount of the principal sum from such date."34. The Apex Court in Abati Bezbaruah v. Deputy Director General, Geological Survey of India & Anr. (2003) 3 SCC 148 ) noticed the varying rate of interest being awarded by the Tribunals, High Courts and Apex Court itself. In the said case, the Apex Court held that the rate of interest must be just and reasonable depending on the facts and circumstances of the case and should be decided after taking into consideration the relevant factors like inflation, change in economy, policy being adopted by the Reserve Bank of India from time to time, how long the case is pending, loss of enjoyment of life etc.35. Infact, the Apex Court in Puttamma & Ors. vs. K. L. Narayana Reddy & Anr. (2013) 15 SCC 45 ), kept the question open for Tribunals and Courts to decide the rate of interest, keeping in mind the rate of interest allowed by the Apex Court in similar cases and other factors such as inflation, change in economic policy adopted by the Reserve Bank of India from time to time, the period from which the case is pending, etc. Infact in Puttammas case (supra), the Apex Court enhanced the compensation @ 12% p.a. from the date of filing of the claim petition.36. Keeping in mind all the aforesaid Judgments, and after considering the peculiar facts of this case, we are of the opinion that the interest granted on the compensation amount by the Tribunal to the respondent-claimants is on the higher side. Although, the claim petition is of 1996, the delay that has occurred in the said case is not attributable to the appellant alone. Both the parties are responsible for the delay, resulting in the claim petition of 1996 being decided in 2013. As is evident from the record, the respondent-claimants sought amendment of their claim petition in 2011, which was allowed in 2012. Having regard to the same, we are of the opinion that the interest of justice would be met, if the interest granted on the aforesaid amount is reduced from 12% to 9% p.a. in the facts of the case.
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Thus, we do not find any merit in the submission of the learned Counsel for the appellant that negligence of the driver of the offending vehicle was not proved, in the light of what is discussed hereinabove.As far as the contention of thelearned counsel for theappellant, that the income tax documents were merely marked as Articles and the contents thereof were not proved, is devoid of merit, inasmuch as, the respondentclaimants had produced Mr. Veer, anOfficer to prove the said acknowledgments of the filing of Income Tax Returns, which are at Exhibits 43 to 45. It appears from the record i.e. Exhibit 1, that the Advocate for the appellant had declined toShri S. R. Veer, when he was offered forview of the said position, it now cannot be contended that the contents thereof were not proved or that the said documents were not proved. Infact, the correctness of the said acknowledgments of Income Tax Returns, at Exhibits 43 to 45 have gone unchallenged, as is evident from the order dated 9th January, 2006. In any event, a Tribunal constituted under the Motor Vehicles Act, 1988 is not bound by the strict Rules of Evidence. Thus, there is no merit in the contention raised by thelearned counsel for theappellant, that the Income Tax documents have not been proved by the respondentg that the first respondentclaimant was admittedly the author of the income tax return filed for the yeara suggestion ought to have been given to her that the same was inflated. In the absence of any suggestion to that effect, the income mentioned in Exhibit 45 has virtually gone unchallenged. Thus, the said income of the yearcertainly be considered, while considering the income of the deceased on the date of hiswas no justification for the Tribunal to come to a conclusion that the deceased was drawing a salary of Rs. 60,000 perfar as the amounts awarded under the conventional heads are concerned, keeping in mind the judicial pronouncements in this regard, we are of the opinion that the firstwould be entitled to an amount of Rs. 1,00,000/towards loss of consortium; the second and third respondents would be entitled to a sum of Rs. 50,000/each towards loss of love and affection; Rs. 25,000/towards loss of estate and Rs. 25,000/towards funeral expenses. Thus, the total compensation that would be payable to theThe last issue raised by the learned Counsel for the appellant is that the interest rate of 12% p.a. granted by the Tribunal is exorbitant and on the higher side.Infact, the Apex Court in PuttammaOrs. vs. K. L. Narayana ReddyAnr. (2013) 15 SCC 45 ), kept the question open for Tribunals and Courts to decide the rate of interest, keeping in mind the rate of interest allowed by the Apex Court in similar cases and other factors such as inflation, change in economic policy adopted by the Reserve Bank of India from time to time, the period from which the case is pending, etc. Infact in Puttammas case (supra), the Apex Court enhanced the compensation @ 12% p.a. from the date of filing of the claim petition.36. Keeping in mind all the aforesaid Judgments, and after considering the peculiar facts of this case, we are of the opinion that the interest granted on the compensation amount by the Tribunal to theis on the higher side. Although, the claim petition is of 1996, the delay that has occurred in the said case is not attributable to the appellant alone. Both the parties are responsible for the delay, resulting in the claim petition of 1996 being decided in 2013. As is evident from the record, thesought amendment of their claim petition in 2011, which was allowed in 2012. Having regard to the same, we are of the opinion that the interest of justice would be met, if the interest granted on the aforesaid amount is reduced from 12% to 9% p.a. in the facts of the case.
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Commissioner Central Excise Vs. M/S.United Spirits Ltd | tax, etc. because the activity did not constitute manufacture.” 29. At this juncture, it is obligatory to state that revenue has heavily relied upon on Pepsi Foods Ltd. (supra). In the said case the Court had found that the consideration payable as royalty was an inevitable consequence of the sale of the concentrate and in such circumstances the price paid for the concentrate was not the sole consideration paid by the purchaser. The terms of agreement had obligated the bottler to purchase the concentrate from the assessee alone, use the assessees’ trade mark on the bottled beverage and also pay royalty for assessees’ trade mark at the specified percentage of the maximum retail price of each bottle. In the given circumstances and evidence available, it was held that the price actually paid for sale of concentrate was not to be the determinative factor as the price paid for the sale of concentrate, i.e., invoice would not be determinative, as the royalty payment was inseparably linked with the sale consideration paid for the concentrate. The indelible nexus and connect was established to club the two considerations. 30. The respondent, in its turn, has placed reliance on Shyam Oil Cake Ltd. (supra) and contended that mere separate tariff entry is not indicative whether the same amounts to manufacture, for tariff entry can be merely for the purpose of identifying the product and the rate applicable to it. In such case, it would not have the effect of rendering the specified commodity to be excisable. Section 2(f) defines “manufacture” and by deeming effect, a process can amount to manufacture. Albeit, for a deeming provision to come into play, it must be specifically stated that a particular process amounts to manufacture. The respondent has also placed reliance on Circular no. 495/61/99-CX-3 dated 22nd November, 1998, but the said circular relates to compound preparation during the course of manufacture of agarbati. In the context of the said product, clarification was issued. It is noticeable that the respondent had pleaded a different factual matrix which has been accepted by the tribunal, albeit, without referring to specific details. General observation and broad brush approach need not reflect true consideration paid for all transactions. A far greater and deeper scrutiny of facts is required before forming any opinion, one way or the other. It would be wrong to be assumptuous without full factual matrix being lucent and absolutely clear. 31. Recently, in The Additional Commissioner of Commercial Taxes, Bangalore v. Ayili Stone Industries Etc. Etc. (Civil Appeal Nos. 1983-2039 of 2016 dated 18.10.2016)the Court was dealing with the issue of grant of exemption on polished granite stone and the view of the revenue that the polished and unpolished granite stones are under separate Entries in the second schedule to the Karnataka Sales Tax Act, 1957. The question arose before this Court pertained to interpretation of polished and granite stones and in that context the concept of manufacture and after referring to various judgments, it held that:- “28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words “other titles”. A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached.” 32. In the case at hand, as we find from the order of the tribunal the exact nature of the process undertaking and how mixing is undertaken and the process involved is not discernible and has not been ascertained and commented. It remains ambiguous and inconclusive. The respondent claims that about 26% of the sales of odoriferous substances were brought from third party and sold without any modification or process. These are all questions of fact which must be first authenticated and the actual factual position validated. The tribunal has answered the question in favour of the respondent without the background check as to the actual process involved and undertaken. Different flavours may have different processes.33. The third issue relates to the issue of limitation. The tribunal has held that certain show cause notices are barred by limitation. Mr. Bagaria, learned senior counsel has submitted that the said conclusion is absolutely flawless, if the dates are taken into consideration. For the aforesaid purpose, he has commended us to the decision already referred to hereinabove. As we notice, the tribunal on this score has also not scrutinized the dates appropriately, but has returned a cryptic finding.34. In view of the aforesaid analysis, we are constrained to remit the matter to the tribunal for reconsideration of the aforesaid aspects on the basis of observations made hereinabove and the law in the field. However, we may proceed to state that we have not expressed anything on the merits of the case including the imposition of penalty and interest. We expect the tribunal shall advert to each and every facet in detail so that this Court can appropriately appreciate the controversy. | 1[ds]32. In the case at hand, as we find from the order of the tribunal the exact nature of the process undertaking and how mixing is undertaken and the process involved is not discernible and has not been ascertained and commented. It remains ambiguous and inconclusive. The respondent claims that about 26% of the sales of odoriferous substances were brought from third party and sold without any modification or process. These are all questions of fact which must be first authenticated and the actual factual position validated. The tribunal has answered the question in favour of the respondent without the background check as to the actual process involved and undertaken. Different flavours may have different processes.33. The third issue relates to the issue of limitation. The tribunal has held that certain show cause notices are barred by limitation. Mr. Bagaria, learned senior counsel has submitted that the said conclusion is absolutely flawless, if the dates are taken into consideration. For the aforesaid purpose, he has commended us to the decision already referred to hereinabove. As we notice, the tribunal on this score has also not scrutinized the dates appropriately, but has returned a cryptic finding.34. In view of the aforesaid analysis, we are constrained to remit the matter to the tribunal for reconsideration of the aforesaid aspects on the basis of observations made hereinabove and the law in the field. However, we may proceed to state that we have not expressed anything on the merits of the case including the imposition of penalty and interest. We expect the tribunal shall advert to each and every facet in detail so that this Court can appropriately appreciate the controversy. | 1 | 10,222 | 305 | ### Instruction:
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tax, etc. because the activity did not constitute manufacture.” 29. At this juncture, it is obligatory to state that revenue has heavily relied upon on Pepsi Foods Ltd. (supra). In the said case the Court had found that the consideration payable as royalty was an inevitable consequence of the sale of the concentrate and in such circumstances the price paid for the concentrate was not the sole consideration paid by the purchaser. The terms of agreement had obligated the bottler to purchase the concentrate from the assessee alone, use the assessees’ trade mark on the bottled beverage and also pay royalty for assessees’ trade mark at the specified percentage of the maximum retail price of each bottle. In the given circumstances and evidence available, it was held that the price actually paid for sale of concentrate was not to be the determinative factor as the price paid for the sale of concentrate, i.e., invoice would not be determinative, as the royalty payment was inseparably linked with the sale consideration paid for the concentrate. The indelible nexus and connect was established to club the two considerations. 30. The respondent, in its turn, has placed reliance on Shyam Oil Cake Ltd. (supra) and contended that mere separate tariff entry is not indicative whether the same amounts to manufacture, for tariff entry can be merely for the purpose of identifying the product and the rate applicable to it. In such case, it would not have the effect of rendering the specified commodity to be excisable. Section 2(f) defines “manufacture” and by deeming effect, a process can amount to manufacture. Albeit, for a deeming provision to come into play, it must be specifically stated that a particular process amounts to manufacture. The respondent has also placed reliance on Circular no. 495/61/99-CX-3 dated 22nd November, 1998, but the said circular relates to compound preparation during the course of manufacture of agarbati. In the context of the said product, clarification was issued. It is noticeable that the respondent had pleaded a different factual matrix which has been accepted by the tribunal, albeit, without referring to specific details. General observation and broad brush approach need not reflect true consideration paid for all transactions. A far greater and deeper scrutiny of facts is required before forming any opinion, one way or the other. It would be wrong to be assumptuous without full factual matrix being lucent and absolutely clear. 31. Recently, in The Additional Commissioner of Commercial Taxes, Bangalore v. Ayili Stone Industries Etc. Etc. (Civil Appeal Nos. 1983-2039 of 2016 dated 18.10.2016)the Court was dealing with the issue of grant of exemption on polished granite stone and the view of the revenue that the polished and unpolished granite stones are under separate Entries in the second schedule to the Karnataka Sales Tax Act, 1957. The question arose before this Court pertained to interpretation of polished and granite stones and in that context the concept of manufacture and after referring to various judgments, it held that:- “28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words “other titles”. A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached.” 32. In the case at hand, as we find from the order of the tribunal the exact nature of the process undertaking and how mixing is undertaken and the process involved is not discernible and has not been ascertained and commented. It remains ambiguous and inconclusive. The respondent claims that about 26% of the sales of odoriferous substances were brought from third party and sold without any modification or process. These are all questions of fact which must be first authenticated and the actual factual position validated. The tribunal has answered the question in favour of the respondent without the background check as to the actual process involved and undertaken. Different flavours may have different processes.33. The third issue relates to the issue of limitation. The tribunal has held that certain show cause notices are barred by limitation. Mr. Bagaria, learned senior counsel has submitted that the said conclusion is absolutely flawless, if the dates are taken into consideration. For the aforesaid purpose, he has commended us to the decision already referred to hereinabove. As we notice, the tribunal on this score has also not scrutinized the dates appropriately, but has returned a cryptic finding.34. In view of the aforesaid analysis, we are constrained to remit the matter to the tribunal for reconsideration of the aforesaid aspects on the basis of observations made hereinabove and the law in the field. However, we may proceed to state that we have not expressed anything on the merits of the case including the imposition of penalty and interest. We expect the tribunal shall advert to each and every facet in detail so that this Court can appropriately appreciate the controversy.
### Response:
1
### Explanation:
32. In the case at hand, as we find from the order of the tribunal the exact nature of the process undertaking and how mixing is undertaken and the process involved is not discernible and has not been ascertained and commented. It remains ambiguous and inconclusive. The respondent claims that about 26% of the sales of odoriferous substances were brought from third party and sold without any modification or process. These are all questions of fact which must be first authenticated and the actual factual position validated. The tribunal has answered the question in favour of the respondent without the background check as to the actual process involved and undertaken. Different flavours may have different processes.33. The third issue relates to the issue of limitation. The tribunal has held that certain show cause notices are barred by limitation. Mr. Bagaria, learned senior counsel has submitted that the said conclusion is absolutely flawless, if the dates are taken into consideration. For the aforesaid purpose, he has commended us to the decision already referred to hereinabove. As we notice, the tribunal on this score has also not scrutinized the dates appropriately, but has returned a cryptic finding.34. In view of the aforesaid analysis, we are constrained to remit the matter to the tribunal for reconsideration of the aforesaid aspects on the basis of observations made hereinabove and the law in the field. However, we may proceed to state that we have not expressed anything on the merits of the case including the imposition of penalty and interest. We expect the tribunal shall advert to each and every facet in detail so that this Court can appropriately appreciate the controversy.
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Lanyard Foods Limited Vs. China Shipping Development Company Limited & Another | additional ground available to the creditor who has obtained a decree against the company. Clause(b) of section 434(1) does not prevent the decree holder creditor to resort to a deeming provision of clause (a) thereof. In support of his submissions, learned counsel for the respondent referred to and relied upon the decisions of Single Judges of the Calcutta High Court in Re Unique Cardboard Box Mfg. Co. P. Ltd, reported in 1974, Vol.48 Co. Cases, 599 Delhi High Court in Madhuban Pvt. Ltd. Vs. Narain Dass Gokal Chand reported in 1971 (Vol.41) Co. Cases 685, Calcutta High Court in All India General Transport Corp. Ltd. Vs. Raj Kumar Mittal reported in 1978 (Vol.48) Co. Cases 604, Madras High Court in Seethai Mills Ltd. Vs. N. Perumalsamy & Anr. reported in 1980 (Vol.50) Co. Cases 422 and Guwahati High Court in Investment of India Ltd. Vs. Everest Cycles Ltd. reported in 1984 (Vol.56) Co. Cases 165. He also submitted that this Court has also consistently taken the same view and referred to its decisions in Dhootpapeshwar Sales Pvt. Ltd. reported in 1972 (Vol.42) Co. Cases 139 and unreported decision in the case of Sugam Construction Pvt. Ltd. (Company Petition no.650 of 2004) decided on 29th April 2005 (Coram S.U. Kamdar, J).8. In our view, in the facts and circumstances of the case in hand, it is not necessary to consider whether a creditor whose claim has culminated into a decree and who has become a decree holder is entitled to file a petition for winding up under clause (a) of sub-section (1) of section 434 on failure of the company to pay the decretal amount within the statutory period on service of a demand notice or is required to resort to and file the petition only under clause (b) of sub-section (1) of section 434 of the Act on execution or any process issued on a decree being returned unsatisfied. In paragraph no.21 and 22 of the Company Petition, the respondent has averred the facts which disclose that the appellant company is clearly commercially insolvent and is unable to pay its debts. Contents of paragraph nos.21 and 22 of the petition has been extracted in detail in paragraph no.10 of the impugned judgment. The learned Judge has also noted that in its affidavit in reply, the appellant has not denied the averments made in paragraph nos.21 and 22 of the Company Petition and therefore they are deemed to be admitted. In paragraph no.22 of the Company Petition, the respondent has clearly averred the following: -(a) The appellant company has accumulated losses aggregated to Rs.225.94 crores.(b) Sales income of the appellant has come down drastically to Rs.11.83 crores from 123.78 crores in the previous year.(c) No provision is made by the appellant for interest liability on loans and dues of foreign creditors due to which loss for the year is understated in the profit and loss account.(d) Losses have resulted in the net worth of the appellant being completely eroded. A reference was filed by the appellant to the BIFR under the provisions of Sick Industrial Companies Act, 1985 2985.(g) Appellants cash flow was negligible and effectively negative. (h) Appellants current assets were negative at Rs.153.76 crores.(i) Appellants foreign creditor, Shweta International Pvt.Ltd. had filed a suit against the appellant for recovery of Rs.140 crores.(j) The liability of appellant to the creditors/customers alone (excluding bankers and others) was Rs.166 crores.(k) Appellants liabilities to its bankers and other creditors was Rs.49.07 crores.(l) Appellants bankers viz. State Bank of Saurashtra and Punjab National Bank had recalled the loan facilities and had filed proceedings before Debt Recovery Tribunal, Mumbai.9. None of the allegations made above were denied by the appellant in the affidavit in reply and must therefore be deemed to have been admitted. They disclose that the company has negative the net worth, the cash flow is negligible and effectively negative. Its business has practically come to a stand still. They also disclose that the creditors are to the extent of several hundreds of crores of rupees and that the substratum of the company has disappeared. Nothing was brought on record to show that the financial difficulties were only temporary and given some time. The appellant had the means of repaying the debts. No scheme for rehabilitation was sanctioned by the BIFR under the Sick Industrial Companies Act. In the circumstances, even without even resorting to the deeming provision about the inability of a company to pay its debts made under section 434 of the Companies Act, it must be held that the respondent had established that appellant is unable to pay its debts. Clause (e) of section 433 of the Act provides that the company may be wound up if it is unable to pay its debts. Section 434 of the Act only provides a few circumstances under which a presumption is drawn about the inability of a company to pay its debts. If the circumstances enumerated in section 434 of the Act exist it would be deemed that the company is unable to pay its debts. In our opinion, it is open for the creditor to prove without resorting to the fiction under section 434 of the Act that a company is unable to pay its debts. Of course in the absence of presumption under section 434 of the Act the burden of proving that the company is unable to pay its debts would be heavy when the company contests the claim of the creditor that the company is unable to pay its debts. The court would be slow to infer and hold that the company is unable to pay its debt and would ask for a strict proof. However in the present case, in the light of the averments made in paragraph no.21 and 22 of the petition which have not been denied by the appellant company, we are satisfied that the respondent has discharged the burden and proved appellant company is commercially insolvent and is unable to pay its debts. | 0[ds]8. In our view, in the facts and circumstances of the case in hand, it is not necessary to consider whether a creditor whose claim has culminated into a decree and who has become a decree holder is entitled to file a petition for winding up under clause (a) of(1) of section 434 on failure of the company to pay the decretal amount within the statutory period on service of a demand notice or is required to resort to and file the petition only under clause (b) of(1) of section 434 of the Act on execution or any process issued on a decree being returned unsatisfied. In paragraph no.21 and 22 of the Company Petition, the respondent has averred the facts which disclose that the appellant company is clearly commercially insolvent and is unable to pay its debts. Contents of paragraph nos.21 and 22 of the petition has been extracted in detail in paragraph no.10 of the impugned judgment. The learned Judge has also noted that in its affidavit in reply, the appellant has not denied the averments made in paragraph nos.21 and 22 of the Company Petition and therefore they are deemed to be admitted. In paragraph no.22 of the Company Petition, the respondent has clearly averred theThe appellant company has accumulated losses aggregated to Rs.225.94 crores.(b) Sales income of the appellant has come down drastically to Rs.11.83 crores from 123.78 crores in the previous year.(c) No provision is made by the appellant for interest liability on loans and dues of foreign creditors due to which loss for the year is understated in the profit and loss account.(d) Losses have resulted in the net worth of the appellant being completely eroded. A reference was filed by the appellant to the BIFR under the provisions of Sick Industrial Companies Act, 1985 2985.(g) Appellants cash flow was negligible and effectivelyAppellants current assets were negative at Rs.153.76 crores.(i) Appellants foreign creditor, Shweta International Pvt.Ltd. had filed a suit against the appellant for recovery of Rs.140 crores.(j) The liability of appellant to the creditors/customers alone (excluding bankers and others) was Rs.166 crores.(k) Appellants liabilities to its bankers and other creditors was Rs.49.07 crores.(l) Appellants bankers viz. State Bank of Saurashtra and Punjab National Bank had recalled the loan facilities and had filed proceedings before Debt Recovery Tribunal, Mumbai.9. None of the allegations made above were denied by the appellant in the affidavit in reply and must therefore be deemed to have been admitted. They disclose that the company has negative the net worth, the cash flow is negligible and effectively negative. Its business has practically come to a stand still. They also disclose that the creditors are to the extent of several hundreds of crores of rupees and that the substratum of the company has disappeared. Nothing was brought on record to show that the financial difficulties were only temporary and given some time. The appellant had the means of repaying the debts. No scheme for rehabilitation was sanctioned by the BIFR under the Sick Industrial Companies Act. In the circumstances, even without even resorting to the deeming provision about the inability of a company to pay its debts made under section 434 of the Companies Act, it must be held that the respondent had established that appellant is unable to pay its debts. Clause (e) of section 433 of the Act provides that the company may be wound up if it is unable to pay its debts. Section 434 of the Act only provides a few circumstances under which a presumption is drawn about the inability of a company to pay its debts. If the circumstances enumerated in section 434 of the Act exist it would be deemed that the company is unable to pay its debts. In our opinion, it is open for the creditor to prove without resorting to the fiction under section 434 of the Act that a company is unable to pay its debts. Of course in the absence of presumption under section 434 of the Act the burden of proving that the company is unable to pay its debts would be heavy when the company contests the claim of the creditor that the company is unable to pay its debts. The court would be slow to infer and hold that the company is unable to pay its debt and would ask for a strict proof. However in the present case, in the light of the averments made in paragraph no.21 and 22 of the petition which have not been denied by the appellant company, we are satisfied that the respondent has discharged the burden and proved appellant company is commercially insolvent and is unable to pay its debts. | 0 | 3,037 | 869 | ### Instruction:
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additional ground available to the creditor who has obtained a decree against the company. Clause(b) of section 434(1) does not prevent the decree holder creditor to resort to a deeming provision of clause (a) thereof. In support of his submissions, learned counsel for the respondent referred to and relied upon the decisions of Single Judges of the Calcutta High Court in Re Unique Cardboard Box Mfg. Co. P. Ltd, reported in 1974, Vol.48 Co. Cases, 599 Delhi High Court in Madhuban Pvt. Ltd. Vs. Narain Dass Gokal Chand reported in 1971 (Vol.41) Co. Cases 685, Calcutta High Court in All India General Transport Corp. Ltd. Vs. Raj Kumar Mittal reported in 1978 (Vol.48) Co. Cases 604, Madras High Court in Seethai Mills Ltd. Vs. N. Perumalsamy & Anr. reported in 1980 (Vol.50) Co. Cases 422 and Guwahati High Court in Investment of India Ltd. Vs. Everest Cycles Ltd. reported in 1984 (Vol.56) Co. Cases 165. He also submitted that this Court has also consistently taken the same view and referred to its decisions in Dhootpapeshwar Sales Pvt. Ltd. reported in 1972 (Vol.42) Co. Cases 139 and unreported decision in the case of Sugam Construction Pvt. Ltd. (Company Petition no.650 of 2004) decided on 29th April 2005 (Coram S.U. Kamdar, J).8. In our view, in the facts and circumstances of the case in hand, it is not necessary to consider whether a creditor whose claim has culminated into a decree and who has become a decree holder is entitled to file a petition for winding up under clause (a) of sub-section (1) of section 434 on failure of the company to pay the decretal amount within the statutory period on service of a demand notice or is required to resort to and file the petition only under clause (b) of sub-section (1) of section 434 of the Act on execution or any process issued on a decree being returned unsatisfied. In paragraph no.21 and 22 of the Company Petition, the respondent has averred the facts which disclose that the appellant company is clearly commercially insolvent and is unable to pay its debts. Contents of paragraph nos.21 and 22 of the petition has been extracted in detail in paragraph no.10 of the impugned judgment. The learned Judge has also noted that in its affidavit in reply, the appellant has not denied the averments made in paragraph nos.21 and 22 of the Company Petition and therefore they are deemed to be admitted. In paragraph no.22 of the Company Petition, the respondent has clearly averred the following: -(a) The appellant company has accumulated losses aggregated to Rs.225.94 crores.(b) Sales income of the appellant has come down drastically to Rs.11.83 crores from 123.78 crores in the previous year.(c) No provision is made by the appellant for interest liability on loans and dues of foreign creditors due to which loss for the year is understated in the profit and loss account.(d) Losses have resulted in the net worth of the appellant being completely eroded. A reference was filed by the appellant to the BIFR under the provisions of Sick Industrial Companies Act, 1985 2985.(g) Appellants cash flow was negligible and effectively negative. (h) Appellants current assets were negative at Rs.153.76 crores.(i) Appellants foreign creditor, Shweta International Pvt.Ltd. had filed a suit against the appellant for recovery of Rs.140 crores.(j) The liability of appellant to the creditors/customers alone (excluding bankers and others) was Rs.166 crores.(k) Appellants liabilities to its bankers and other creditors was Rs.49.07 crores.(l) Appellants bankers viz. State Bank of Saurashtra and Punjab National Bank had recalled the loan facilities and had filed proceedings before Debt Recovery Tribunal, Mumbai.9. None of the allegations made above were denied by the appellant in the affidavit in reply and must therefore be deemed to have been admitted. They disclose that the company has negative the net worth, the cash flow is negligible and effectively negative. Its business has practically come to a stand still. They also disclose that the creditors are to the extent of several hundreds of crores of rupees and that the substratum of the company has disappeared. Nothing was brought on record to show that the financial difficulties were only temporary and given some time. The appellant had the means of repaying the debts. No scheme for rehabilitation was sanctioned by the BIFR under the Sick Industrial Companies Act. In the circumstances, even without even resorting to the deeming provision about the inability of a company to pay its debts made under section 434 of the Companies Act, it must be held that the respondent had established that appellant is unable to pay its debts. Clause (e) of section 433 of the Act provides that the company may be wound up if it is unable to pay its debts. Section 434 of the Act only provides a few circumstances under which a presumption is drawn about the inability of a company to pay its debts. If the circumstances enumerated in section 434 of the Act exist it would be deemed that the company is unable to pay its debts. In our opinion, it is open for the creditor to prove without resorting to the fiction under section 434 of the Act that a company is unable to pay its debts. Of course in the absence of presumption under section 434 of the Act the burden of proving that the company is unable to pay its debts would be heavy when the company contests the claim of the creditor that the company is unable to pay its debts. The court would be slow to infer and hold that the company is unable to pay its debt and would ask for a strict proof. However in the present case, in the light of the averments made in paragraph no.21 and 22 of the petition which have not been denied by the appellant company, we are satisfied that the respondent has discharged the burden and proved appellant company is commercially insolvent and is unable to pay its debts.
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8. In our view, in the facts and circumstances of the case in hand, it is not necessary to consider whether a creditor whose claim has culminated into a decree and who has become a decree holder is entitled to file a petition for winding up under clause (a) of(1) of section 434 on failure of the company to pay the decretal amount within the statutory period on service of a demand notice or is required to resort to and file the petition only under clause (b) of(1) of section 434 of the Act on execution or any process issued on a decree being returned unsatisfied. In paragraph no.21 and 22 of the Company Petition, the respondent has averred the facts which disclose that the appellant company is clearly commercially insolvent and is unable to pay its debts. Contents of paragraph nos.21 and 22 of the petition has been extracted in detail in paragraph no.10 of the impugned judgment. The learned Judge has also noted that in its affidavit in reply, the appellant has not denied the averments made in paragraph nos.21 and 22 of the Company Petition and therefore they are deemed to be admitted. In paragraph no.22 of the Company Petition, the respondent has clearly averred theThe appellant company has accumulated losses aggregated to Rs.225.94 crores.(b) Sales income of the appellant has come down drastically to Rs.11.83 crores from 123.78 crores in the previous year.(c) No provision is made by the appellant for interest liability on loans and dues of foreign creditors due to which loss for the year is understated in the profit and loss account.(d) Losses have resulted in the net worth of the appellant being completely eroded. A reference was filed by the appellant to the BIFR under the provisions of Sick Industrial Companies Act, 1985 2985.(g) Appellants cash flow was negligible and effectivelyAppellants current assets were negative at Rs.153.76 crores.(i) Appellants foreign creditor, Shweta International Pvt.Ltd. had filed a suit against the appellant for recovery of Rs.140 crores.(j) The liability of appellant to the creditors/customers alone (excluding bankers and others) was Rs.166 crores.(k) Appellants liabilities to its bankers and other creditors was Rs.49.07 crores.(l) Appellants bankers viz. State Bank of Saurashtra and Punjab National Bank had recalled the loan facilities and had filed proceedings before Debt Recovery Tribunal, Mumbai.9. None of the allegations made above were denied by the appellant in the affidavit in reply and must therefore be deemed to have been admitted. They disclose that the company has negative the net worth, the cash flow is negligible and effectively negative. Its business has practically come to a stand still. They also disclose that the creditors are to the extent of several hundreds of crores of rupees and that the substratum of the company has disappeared. Nothing was brought on record to show that the financial difficulties were only temporary and given some time. The appellant had the means of repaying the debts. No scheme for rehabilitation was sanctioned by the BIFR under the Sick Industrial Companies Act. In the circumstances, even without even resorting to the deeming provision about the inability of a company to pay its debts made under section 434 of the Companies Act, it must be held that the respondent had established that appellant is unable to pay its debts. Clause (e) of section 433 of the Act provides that the company may be wound up if it is unable to pay its debts. Section 434 of the Act only provides a few circumstances under which a presumption is drawn about the inability of a company to pay its debts. If the circumstances enumerated in section 434 of the Act exist it would be deemed that the company is unable to pay its debts. In our opinion, it is open for the creditor to prove without resorting to the fiction under section 434 of the Act that a company is unable to pay its debts. Of course in the absence of presumption under section 434 of the Act the burden of proving that the company is unable to pay its debts would be heavy when the company contests the claim of the creditor that the company is unable to pay its debts. The court would be slow to infer and hold that the company is unable to pay its debt and would ask for a strict proof. However in the present case, in the light of the averments made in paragraph no.21 and 22 of the petition which have not been denied by the appellant company, we are satisfied that the respondent has discharged the burden and proved appellant company is commercially insolvent and is unable to pay its debts.
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BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. & ANR Vs. THE STATE OF MADHYA PRADESH | show that the loss incurred was covered within the terms of the policy and that on a balance of probabilities there existed a proximate cause between the loss incurred and the helicopter being in transit. The respondent has adduced no evidence to supports its case. 37. After the respondent informed the appellant on 23 November 2005 that upon inspection, the tail boom of the helicopter was found to be damaged, the appellant promptly appointed a surveyor, who in its report dated 14 March 2006 observed: During our re-visit along with Insureds engineer we observed that the Tail boom was badly dented (apart from the crack in the glass of pilot side window initially surveyed by us) at the point where it joins the main frame. The frame was also affected and bulged inside. It appeared from the nature of damage that some hard and/or sharp object hit the frame whilst it was parked at hanger... (Emphasis supplied) Based on the above, the surveyor concluded thus: The damage to the tail boom had occurred at Hangar #3, Bay 15/33 IGI Airport Delhi after substantial assembly but prior to test flight and not during transit and hence would not fall under the purview of marine insurance policy as issued to the insured. On the basis of the surveyors report, the appellant rejected the claim of the respondent on 10 April 2006. By a letter dated 11 April 2006, the Directorate of Aviation, Government of Madhya Pradesh responded to the above letter on behalf of the respondent stating: It is very important to mention here that the investigation by your surveyors and their interviews with technical representatives of Acro Helipro, scrutiny of customs documents, physical inspection of helicopter at Palam airport etc. confirms that this damage to the helicopter was caused in Nov? 05 whereas this helicopter was cleared from customs on 13 th Oct? 05. ... Though your findings of damage to helicopter in Nov? 05 i.e. after a month after receipt of helicopter from customs are based on facts but here we wish to inform you that our policy for transit is up to Bhopal and therefore damage to the helicopter after a month from receipt of the customs i.e. in the month of Nov? 05 is also covered under transit. (Emphasis supplied) 38. It is evident from the contents of the above letter written by the the Directorate of Aviation, Government of Madhya Pradesh that the respondent did not challenge the surveyors report. Instead it accepted the finding of the surveyor that the damage to the helicopter took place only in November 2005, after the helicopter had been cleared through customs on 13 October 2005. Accepting the report of the surveyor, the Directorate of Civil Aviation of the Government of Madhya Pradesh sought to contend that the ordinary course of transit extended until Bhopal. This admission is contrary to the stance taken by the respondent before this Court that the damage to the helicopter occurred during the course of transit before the cargo was cleared from customs at Delhi. The learned counsel for the respondent has in his written submissions before this Court argued that since the procurement and supply of the new window was taking considerable time, the helicopter was kept in storage in the meantime in the hangar was covered with a bubble sheet and packing material. The respondent has on the balance of probabilities failed discharge its burden that the damage to the helicopter incurred during the course of transit. No proximate cause has been shown between the damage to the helicopter and the helicopter being in a state of transit. Hence, it is difficult for this Court to come to the conclusion that the damage to the helicopter incurred during the course of transit. 39. The NCDRC has in the impugned judgment proceeded on the understanding that since customs clearance is essentially at New Delhi, it has to be construed and interpreted in the right spirit that the commencement of the transit is at Langley and ordinary course of transit includes the staying at Delhi for customs clearances and for assembling . The NCDRC has further noted that there existed no ambiguity regarding the commencement of the risk at Langley and ending at the final destination i.e. Bhopal. According to the NCDRC, the expiry of thirty days after completion of discharge at the final port of discharge should be essentially interpreted as thirty days after reaching Bhopal and not thirty days during the course of transit which included the halt at New Delhi. The line of approach adopted by the NCDRC is evidently incorrect. While construing a contract of insurance, it is not permissible for a court to substitute the terms of the contract. The court should always interpret the words used in a contract in a manner that will best express the intention of the parties. The NCDRC has incorrectly proceeded on the path that the ordinary course of transit would include assembling of the helicopter at New Delhi and the policy covered all risks till the time the helicopter did not reach Bhopal. The risks associated with the assembled helicopter were not covered within the purview of the policy, as the subject-matter which had been insured was a helicopter being transported in a packaged knocked down condition. The act of assembling the helicopter with a view to having it flown under its own power, instead of transporting the packaged knocked down helicopter further to Bhopal by road, would not constitute as storage in the ordinary course of transit. The interpretation adopted by the NCDRC strikes fundamentally at the purpose of the policy and is not in accordance with sound commercial principles. The interpretation altered the character of the risk insured beyond the scope of the policy as agreed between the parties. 40. We are hence of the view that the interpretation placed on the terms of the insurance policy was manifestly incorrect and that the impugned orders of the NCDRC and SCDRC are unsustainable. | 1[ds]12. The dispute before this Court is with respect to the damage to the tail boom of the helicopter and not as regards the damage to the windscreen glass. By a letter dated 10 April 2006, the appellant informed the assured that the total cost of replacement of the windscreen glass was within the policy deductible of 0.5% of the sum insured and as such no liability arose under the policy. The assured has not challenged that before this Court13. The insurance policy issued by the insurer to the insured represents a contract between the parties. The insurer undertakes to compensate the insured for the losses covered under the insurance cover subject to the terms and conditions of the policy. The appellant issued a policy to the respondent on 22 July 2005. Under the policy schedule, the cargo was to be transported from Langley to Bhopal. The policy schedule prescribed that the appellant company agrees to insure against loss, damage, liability or expenses subject to the limit of indemnity and the clauses, endorsements, exclusions, conditions and warranties in the schedule to the policy. The extent of the policy cover was governed by and subject to various clauses mentioned in the policy schedule which included the ICC. The ICC, inter alia, prescribed the risks covered, exclusions, duration and duties of the insurer and the insured14. The dispute in the present case is on the interpretation of the termination clause of the ICCThe insurance cover in the present case is expressed in terms of the voyage itself. The above clause provides that the duration of the policy attached and commenced from the time the insured cargo left the warehouse, premises or place of storage at the place named in the policy and continued during the ordinary course of transit18. The expression in the ordinary course of transit mentioned in Clause 5 of the ICC cannot be divorced from the context and must be read along with the other conditions which appear in the policy document26. The appellant issued a policy cover to the respondent providing coverage for the transport of the helicopter from Langley to Bhopal. The helicopter was transported in a knocked down state by air through Cathay Pacific Airlines and reached New Delhi on 5 October 2005. It cleared customs on 13 October 2005 and on the same day, the respondent after taking possession of the cargo shifted it to the hangar at New Delhi. It is undisputed that at the time of customs clearance, no damage was reported. It was when the helicopter was inspected by the representative of the manufacturer during a routine inspection on 21 October 2005 that damage was reported to the window of the crew door of the helicopter. In a communication dated 21 October 2005 addressed by the representative of the manufacturer for placing an order for a crew door window, it was stated that further unpacking of the Fuselage Assembly was carried out and no other damage was evident27. The contents of the above letter negate the submission of the learned counsel for the respondent that the helicopter was shifted to the hangar for the purposes of assembling and preparing it for further transportation by road to Bhopal. It is evident from the above letter that the intention of the respondent was to assemble the helicopter at New Delhi and to fly it to Bhopal. The helicopter was transported from Langley in a knocked down state. The specific act of unpacking the cargo at New Delhi in furtherance of the purpose of assembling it for the flight to Bhopal indicated that the transportation of the cargo in a knocked down state had come to an end. The act of unpacking the helicopter for the purpose of assembling it for undertaking the flight to Bhopal was unrelated to the usual or ordinary method of pursuing the transportation of the cargo insured. The policy covered only those risks that were associated with the transportation of the helicopter and did not cover the risks associated with the flight or operation of the helicopter29. In the present case, the transit policy only covered such risks that may have arisen by the venture or operation being carried out in the usual or ordinary manner and did not include risks that were out of the scope of the policy. Change in the character of the helicopter from a knocked down state to a ready to fly state exposed the appellant to risks not contemplated by the parties under the policy. The effect of the alteration of the subject-matter insured is outside the scope of the agreed cover and brings an end to the policy. Once the nature of the subject- matter was altered, the cargo cannot be said to be in transit and the appellant is absolved from any liability arising out of any subsequent damage to the consignment. Exposure to risks associated with the flight substantially and unnecessarily added to the risks of the journey that were not covered by the policy. Accordingly, the submission of the learned counsel for the respondent that the cover against risks would be provided till the time the helicopter was not delivered at the final destination of Bhopal is unsustainable. Once the respondent intended to alter the subject-matter it becomes irrelevant to determine whether the hangar at New Delhi was a transit store or the final destination of deliveryClause 5.1.2 of the ICC provides that the policy may terminate upon the assured choosing to use an alternate place of delivery, prior to the destination named therein for one of two purposes, either for storage other than in the ordinary course of transit or for allocation or distribution of the cargo. The purpose of a transit policy is to cover the carriage of goods to the final destination. In the present case, storage of the helicopter in the hangar at New Delhi awaiting replacement of the spare window cannot be said to be incidental or in furtherance of the carriage of the goods to the ultimate destination. It would be unreasonable to suggest that the transit policy intended to cover indefinite storage of the helicopter at the hangar in New Delhi not brought about by the requirements of transport but determined by commercial convenience of the respondent. The degree of deviation of storing the helicopter at the hangar awaiting replacement of the spare window is at variance with the ordinary course of transit. Ordinary course of transit is the period when the cargo is in the course of transportation, and not in the immediate control of the buyer or seller. After the goods cleared customs, the helicopter was in possession of the respondent and it took a voluntary decision of retaining the helicopter in New Delhi on the basis of commercial convenience. As found in the earlier part of the judgment, the intention of the respondent was not to prepare the helicopter for transportation by road to Bhopal but to assemble the helicopter in New Delhi and fly it to Bhopal. Once the respondent decided to leave the goods in the hangar at New Delhi for its commercial convenience not associated with or in furtherance of the requirements of their carriage to Bhopal, the transit insurance endedIn the present case, the insured voluntarily decided to store the helicopter in the hangar at New Delhi out of commercial convenience and not in furtherance of the transit. In addition, the insured by assembling the knocked down helicopter for the purposes of flying it to Bhopal changed the nature of the consignment and exposed the appellant to operational risks beyond the scope of the policyIn the present case, if the respondent decided to retain the helicopter in New Delhi awaiting the arrival of the replacement window from USA, it could have issued a notice to the underwriters to continue the cover of carriage till the time the repairs were carried out. However, the respondent did not issue any notice seeking extension of the insurance cover under Clause 636. For the respondent to prove its case, a mere assertion that the loss incurred during the course of transit is not sufficient. The burden of proof lies on the respondent to show that the loss incurred was covered within the terms of the policy and that on a balance of probabilities there existed a proximate cause between the loss incurred and the helicopter being in transit. The respondent has adduced no evidence to supports its case38. It is evident from the contents of the above letter written by the the Directorate of Aviation, Government of Madhya Pradesh that the respondent did not challenge the surveyors report. Instead it accepted the finding of the surveyor that the damage to the helicopter took place only in November 2005, after the helicopter had been cleared through customs on 13 October 2005. Accepting the report of the surveyor, the Directorate of Civil Aviation of the Government of Madhya Pradesh sought to contend that the ordinary course of transit extended until Bhopal. This admission is contrary to the stance taken by the respondent before this Court that the damage to the helicopter occurred during the course of transit before the cargo was cleared from customs at Delhi. The learned counsel for the respondent has in his written submissions before this Court argued that since the procurement and supply of the new window was taking considerable time, the helicopter was kept in storage in the meantime in the hangar was covered with a bubble sheet and packing material. The respondent has on the balance of probabilities failed discharge its burden that the damage to the helicopter incurred during the course of transit. No proximate cause has been shown between the damage to the helicopter and the helicopter being in a state of transit. Hence, it is difficult for this Court to come to the conclusion that the damage to the helicopter incurred during the course of transit39. The NCDRC has in the impugned judgment proceeded on the understanding that since customs clearance is essentially at New Delhi, it has to be construed and interpreted in the right spirit that the commencement of the transit is at Langley and ordinary course of transit includes the staying at Delhi for customs clearances and for assembling . The NCDRC has further noted that there existed no ambiguity regarding the commencement of the risk at Langley and ending at the final destination i.e. Bhopal. According to the NCDRC, the expiry of thirty days after completion of discharge at the final port of discharge should be essentially interpreted as thirty days after reaching Bhopal and not thirty days during the course of transit which included the halt at New Delhi. The line of approach adopted by the NCDRC is evidently incorrect. While construing a contract of insurance, it is not permissible for a court to substitute the terms of the contract. The court should always interpret the words used in a contract in a manner that will best express the intention of the parties. The NCDRC has incorrectly proceeded on the path that the ordinary course of transit would include assembling of the helicopter at New Delhi and the policy covered all risks till the time the helicopter did not reach Bhopal. The risks associated with the assembled helicopter were not covered within the purview of the policy, as the subject-matter which had been insured was a helicopter being transported in a packaged knocked down condition. The act of assembling the helicopter with a view to having it flown under its own power, instead of transporting the packaged knocked down helicopter further to Bhopal by road, would not constitute as storage in the ordinary course of transit. The interpretation adopted by the NCDRC strikes fundamentally at the purpose of the policy and is not in accordance with sound commercial principles. The interpretation altered the character of the risk insured beyond the scope of the policy as agreed between the parties.40. We are hence of the view that the interpretation placed on the terms of the insurance policy was manifestly incorrect and that the impugned orders of the NCDRC and SCDRC are unsustainable. | 1 | 10,450 | 2,139 | ### 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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show that the loss incurred was covered within the terms of the policy and that on a balance of probabilities there existed a proximate cause between the loss incurred and the helicopter being in transit. The respondent has adduced no evidence to supports its case. 37. After the respondent informed the appellant on 23 November 2005 that upon inspection, the tail boom of the helicopter was found to be damaged, the appellant promptly appointed a surveyor, who in its report dated 14 March 2006 observed: During our re-visit along with Insureds engineer we observed that the Tail boom was badly dented (apart from the crack in the glass of pilot side window initially surveyed by us) at the point where it joins the main frame. The frame was also affected and bulged inside. It appeared from the nature of damage that some hard and/or sharp object hit the frame whilst it was parked at hanger... (Emphasis supplied) Based on the above, the surveyor concluded thus: The damage to the tail boom had occurred at Hangar #3, Bay 15/33 IGI Airport Delhi after substantial assembly but prior to test flight and not during transit and hence would not fall under the purview of marine insurance policy as issued to the insured. On the basis of the surveyors report, the appellant rejected the claim of the respondent on 10 April 2006. By a letter dated 11 April 2006, the Directorate of Aviation, Government of Madhya Pradesh responded to the above letter on behalf of the respondent stating: It is very important to mention here that the investigation by your surveyors and their interviews with technical representatives of Acro Helipro, scrutiny of customs documents, physical inspection of helicopter at Palam airport etc. confirms that this damage to the helicopter was caused in Nov? 05 whereas this helicopter was cleared from customs on 13 th Oct? 05. ... Though your findings of damage to helicopter in Nov? 05 i.e. after a month after receipt of helicopter from customs are based on facts but here we wish to inform you that our policy for transit is up to Bhopal and therefore damage to the helicopter after a month from receipt of the customs i.e. in the month of Nov? 05 is also covered under transit. (Emphasis supplied) 38. It is evident from the contents of the above letter written by the the Directorate of Aviation, Government of Madhya Pradesh that the respondent did not challenge the surveyors report. Instead it accepted the finding of the surveyor that the damage to the helicopter took place only in November 2005, after the helicopter had been cleared through customs on 13 October 2005. Accepting the report of the surveyor, the Directorate of Civil Aviation of the Government of Madhya Pradesh sought to contend that the ordinary course of transit extended until Bhopal. This admission is contrary to the stance taken by the respondent before this Court that the damage to the helicopter occurred during the course of transit before the cargo was cleared from customs at Delhi. The learned counsel for the respondent has in his written submissions before this Court argued that since the procurement and supply of the new window was taking considerable time, the helicopter was kept in storage in the meantime in the hangar was covered with a bubble sheet and packing material. The respondent has on the balance of probabilities failed discharge its burden that the damage to the helicopter incurred during the course of transit. No proximate cause has been shown between the damage to the helicopter and the helicopter being in a state of transit. Hence, it is difficult for this Court to come to the conclusion that the damage to the helicopter incurred during the course of transit. 39. The NCDRC has in the impugned judgment proceeded on the understanding that since customs clearance is essentially at New Delhi, it has to be construed and interpreted in the right spirit that the commencement of the transit is at Langley and ordinary course of transit includes the staying at Delhi for customs clearances and for assembling . The NCDRC has further noted that there existed no ambiguity regarding the commencement of the risk at Langley and ending at the final destination i.e. Bhopal. According to the NCDRC, the expiry of thirty days after completion of discharge at the final port of discharge should be essentially interpreted as thirty days after reaching Bhopal and not thirty days during the course of transit which included the halt at New Delhi. The line of approach adopted by the NCDRC is evidently incorrect. While construing a contract of insurance, it is not permissible for a court to substitute the terms of the contract. The court should always interpret the words used in a contract in a manner that will best express the intention of the parties. The NCDRC has incorrectly proceeded on the path that the ordinary course of transit would include assembling of the helicopter at New Delhi and the policy covered all risks till the time the helicopter did not reach Bhopal. The risks associated with the assembled helicopter were not covered within the purview of the policy, as the subject-matter which had been insured was a helicopter being transported in a packaged knocked down condition. The act of assembling the helicopter with a view to having it flown under its own power, instead of transporting the packaged knocked down helicopter further to Bhopal by road, would not constitute as storage in the ordinary course of transit. The interpretation adopted by the NCDRC strikes fundamentally at the purpose of the policy and is not in accordance with sound commercial principles. The interpretation altered the character of the risk insured beyond the scope of the policy as agreed between the parties. 40. We are hence of the view that the interpretation placed on the terms of the insurance policy was manifestly incorrect and that the impugned orders of the NCDRC and SCDRC are unsustainable.
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the hangar in New Delhi not brought about by the requirements of transport but determined by commercial convenience of the respondent. The degree of deviation of storing the helicopter at the hangar awaiting replacement of the spare window is at variance with the ordinary course of transit. Ordinary course of transit is the period when the cargo is in the course of transportation, and not in the immediate control of the buyer or seller. After the goods cleared customs, the helicopter was in possession of the respondent and it took a voluntary decision of retaining the helicopter in New Delhi on the basis of commercial convenience. As found in the earlier part of the judgment, the intention of the respondent was not to prepare the helicopter for transportation by road to Bhopal but to assemble the helicopter in New Delhi and fly it to Bhopal. Once the respondent decided to leave the goods in the hangar at New Delhi for its commercial convenience not associated with or in furtherance of the requirements of their carriage to Bhopal, the transit insurance endedIn the present case, the insured voluntarily decided to store the helicopter in the hangar at New Delhi out of commercial convenience and not in furtherance of the transit. In addition, the insured by assembling the knocked down helicopter for the purposes of flying it to Bhopal changed the nature of the consignment and exposed the appellant to operational risks beyond the scope of the policyIn the present case, if the respondent decided to retain the helicopter in New Delhi awaiting the arrival of the replacement window from USA, it could have issued a notice to the underwriters to continue the cover of carriage till the time the repairs were carried out. However, the respondent did not issue any notice seeking extension of the insurance cover under Clause 636. For the respondent to prove its case, a mere assertion that the loss incurred during the course of transit is not sufficient. The burden of proof lies on the respondent to show that the loss incurred was covered within the terms of the policy and that on a balance of probabilities there existed a proximate cause between the loss incurred and the helicopter being in transit. The respondent has adduced no evidence to supports its case38. It is evident from the contents of the above letter written by the the Directorate of Aviation, Government of Madhya Pradesh that the respondent did not challenge the surveyors report. Instead it accepted the finding of the surveyor that the damage to the helicopter took place only in November 2005, after the helicopter had been cleared through customs on 13 October 2005. Accepting the report of the surveyor, the Directorate of Civil Aviation of the Government of Madhya Pradesh sought to contend that the ordinary course of transit extended until Bhopal. This admission is contrary to the stance taken by the respondent before this Court that the damage to the helicopter occurred during the course of transit before the cargo was cleared from customs at Delhi. The learned counsel for the respondent has in his written submissions before this Court argued that since the procurement and supply of the new window was taking considerable time, the helicopter was kept in storage in the meantime in the hangar was covered with a bubble sheet and packing material. The respondent has on the balance of probabilities failed discharge its burden that the damage to the helicopter incurred during the course of transit. No proximate cause has been shown between the damage to the helicopter and the helicopter being in a state of transit. Hence, it is difficult for this Court to come to the conclusion that the damage to the helicopter incurred during the course of transit39. The NCDRC has in the impugned judgment proceeded on the understanding that since customs clearance is essentially at New Delhi, it has to be construed and interpreted in the right spirit that the commencement of the transit is at Langley and ordinary course of transit includes the staying at Delhi for customs clearances and for assembling . The NCDRC has further noted that there existed no ambiguity regarding the commencement of the risk at Langley and ending at the final destination i.e. Bhopal. According to the NCDRC, the expiry of thirty days after completion of discharge at the final port of discharge should be essentially interpreted as thirty days after reaching Bhopal and not thirty days during the course of transit which included the halt at New Delhi. The line of approach adopted by the NCDRC is evidently incorrect. While construing a contract of insurance, it is not permissible for a court to substitute the terms of the contract. The court should always interpret the words used in a contract in a manner that will best express the intention of the parties. The NCDRC has incorrectly proceeded on the path that the ordinary course of transit would include assembling of the helicopter at New Delhi and the policy covered all risks till the time the helicopter did not reach Bhopal. The risks associated with the assembled helicopter were not covered within the purview of the policy, as the subject-matter which had been insured was a helicopter being transported in a packaged knocked down condition. The act of assembling the helicopter with a view to having it flown under its own power, instead of transporting the packaged knocked down helicopter further to Bhopal by road, would not constitute as storage in the ordinary course of transit. The interpretation adopted by the NCDRC strikes fundamentally at the purpose of the policy and is not in accordance with sound commercial principles. The interpretation altered the character of the risk insured beyond the scope of the policy as agreed between the parties.40. We are hence of the view that the interpretation placed on the terms of the insurance policy was manifestly incorrect and that the impugned orders of the NCDRC and SCDRC are unsustainable.
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Rajkumar Gurawara (Dead) Thr. Lrs Vs. M/S. S.K.Sarwagi & Co. Pvt. Ltd. &Anr | that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. 6) With this background, let us consider the application filed by the plaintiff and the orders passed by the District Court as well as the High Court. We have already stated that originally the suit was filed against the sole defendant and subsequently the second defendant came on record as per the order dated 11.07.2003. It is the case of the plaintiff that he is the absolute owner of the suit schedule lands. It is not in dispute that prior to filing of the suit, notices were exchanged between the parties. In their reply dated 18.8.2001 to the plaintiffs notice, it was specifically asserted that the first respondent herein, namely M/s S.K. Sarwagi & Co. Pvt. Ltd. is carrying on mining activities in the suit schedule lands. The perusal of the reply notice issued by D-2 to the plaintiff, which has been extracted by the High Court in the impugned order, clearly shows that the plaintiff was made known that the suit lands were in possession of D-2 having taken them on lease from the Government. With the said information in the reply notice about the mining being carried on by D-2, the plaintiff filed the said suit without impleading him for possession and damages. 7) The other relevant fact to be noted is the plea taken in the written statement filed by D-1 wherein, it is specifically stated that the suit schedule lands are classified as poramboke lands in survey and settlement operations and that the Government issued G.O. Ms. No. 459 (Industries and Commerce) Department, dated 28.11.1998 leasing out an extent of 18.35 hectares of land covered under Survey Nos.106 and 107 of Ayitham Valasa Village in favour of A.P. Mineral Development Corporation for mining purpose for twenty years. It is further averred that the Government in G.O. Ms. No. 102 (Industries and Commerce) Department, dated 20.2.2001 issued Orders transferring the mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. Pvt. Ltd. for the unexpired period of lease, i.e. upto 1.6.2019. As rightly observed by the High Court, it is explicit from the written statement filed by D-1 that the plaintiff was made known of the fact that the Government issued order transferring mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. P. Ltd. (D-2) and the leased lands are in possession and enjoyment of M/s Sarwagi & Co. P. Ltd. As rightly pointed out by the learned counsel for the contesting respondent, in spite of the plaintiff being put in knowledge of the act of the person in possession of the suit property did not chose to implead the said M/s Sarwagi & Co. P. Ltd. (D-2) which came on record on its own application as D-2 in the suit. It is clear that in spite of reply notice and specific plea taken in the written statement of D-1, the plaintiff did not chose to take steps to get the plaint amended suitably and instead allowed the suit to go on and examined the witnesses on his behalf and cross-examined the witnesses produced by the defendants. Only during the stage of arguments, the plaintiff came up with an application under Order VI Rule 17 seeking amendment of the pleadings. We have already explained the implication of proviso to Rule 17. Though even after commencement of the trial, parties to the proceeding are entitled to seek amendment, in the light of the factual details such as clear information in the reply notice prior to the filing of the suit and specific plea in the written statement of D-1 which contained details of Government Orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument can not be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time. Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge. | 0[ds]7) The other relevant fact to be noted is the plea taken in the written statement filed by D-1 wherein, it is specifically stated that the suit schedule lands are classified as poramboke lands in survey and settlement operations and that the Government issued G.O. Ms. No. 459 (Industries and Commerce) Department, dated 28.11.1998 leasing out an extent of 18.35 hectares of land covered under Survey Nos.106 and 107 of Ayitham Valasa Village in favour of A.P. Mineral Development Corporation for mining purpose for twenty years. It is further averred that the Government in G.O. Ms. No. 102 (Industries and Commerce) Department, dated 20.2.2001 issued Orders transferring the mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. Pvt. Ltd. for the unexpired period of lease, i.e. upto 1.6.2019. As rightly observed by the High Court, it is explicit from the written statement filed by D-1 that the plaintiff was made known of the fact that the Government issued order transferring mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. P. Ltd. (D-2) and the leased lands are in possession and enjoyment of M/s Sarwagi & Co. P. Ltd. As rightly pointed out by the learned counsel for the contesting respondent, in spite of the plaintiff being put in knowledge of the act of the person in possession of the suit property did not chose to implead the said M/s Sarwagi & Co. P. Ltd. (D-2) which came on record on its own application as D-2 in the suit. It is clear that in spite of reply notice and specific plea taken in the written statement of D-1, the plaintiff did not chose to take steps to get the plaint amended suitably and instead allowed the suit to go on and examined the witnesses on his behalf and cross-examined the witnesses produced by the defendants. Only during the stage of arguments, the plaintiff came up with an application under Order VI Rule 17 seeking amendment of the pleadings. We have already explained the implication of proviso to Rule 17. Though even after commencement of the trial, parties to the proceeding are entitled to seek amendment, in the light of the factual details such as clear information in the reply notice prior to the filing of the suit and specific plea in the written statement of D-1 which contained details of Government Orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument can not be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time. Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge. | 0 | 2,340 | 664 | ### 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:
that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. 6) With this background, let us consider the application filed by the plaintiff and the orders passed by the District Court as well as the High Court. We have already stated that originally the suit was filed against the sole defendant and subsequently the second defendant came on record as per the order dated 11.07.2003. It is the case of the plaintiff that he is the absolute owner of the suit schedule lands. It is not in dispute that prior to filing of the suit, notices were exchanged between the parties. In their reply dated 18.8.2001 to the plaintiffs notice, it was specifically asserted that the first respondent herein, namely M/s S.K. Sarwagi & Co. Pvt. Ltd. is carrying on mining activities in the suit schedule lands. The perusal of the reply notice issued by D-2 to the plaintiff, which has been extracted by the High Court in the impugned order, clearly shows that the plaintiff was made known that the suit lands were in possession of D-2 having taken them on lease from the Government. With the said information in the reply notice about the mining being carried on by D-2, the plaintiff filed the said suit without impleading him for possession and damages. 7) The other relevant fact to be noted is the plea taken in the written statement filed by D-1 wherein, it is specifically stated that the suit schedule lands are classified as poramboke lands in survey and settlement operations and that the Government issued G.O. Ms. No. 459 (Industries and Commerce) Department, dated 28.11.1998 leasing out an extent of 18.35 hectares of land covered under Survey Nos.106 and 107 of Ayitham Valasa Village in favour of A.P. Mineral Development Corporation for mining purpose for twenty years. It is further averred that the Government in G.O. Ms. No. 102 (Industries and Commerce) Department, dated 20.2.2001 issued Orders transferring the mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. Pvt. Ltd. for the unexpired period of lease, i.e. upto 1.6.2019. As rightly observed by the High Court, it is explicit from the written statement filed by D-1 that the plaintiff was made known of the fact that the Government issued order transferring mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. P. Ltd. (D-2) and the leased lands are in possession and enjoyment of M/s Sarwagi & Co. P. Ltd. As rightly pointed out by the learned counsel for the contesting respondent, in spite of the plaintiff being put in knowledge of the act of the person in possession of the suit property did not chose to implead the said M/s Sarwagi & Co. P. Ltd. (D-2) which came on record on its own application as D-2 in the suit. It is clear that in spite of reply notice and specific plea taken in the written statement of D-1, the plaintiff did not chose to take steps to get the plaint amended suitably and instead allowed the suit to go on and examined the witnesses on his behalf and cross-examined the witnesses produced by the defendants. Only during the stage of arguments, the plaintiff came up with an application under Order VI Rule 17 seeking amendment of the pleadings. We have already explained the implication of proviso to Rule 17. Though even after commencement of the trial, parties to the proceeding are entitled to seek amendment, in the light of the factual details such as clear information in the reply notice prior to the filing of the suit and specific plea in the written statement of D-1 which contained details of Government Orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument can not be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time. Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge.
### Response:
0
### Explanation:
7) The other relevant fact to be noted is the plea taken in the written statement filed by D-1 wherein, it is specifically stated that the suit schedule lands are classified as poramboke lands in survey and settlement operations and that the Government issued G.O. Ms. No. 459 (Industries and Commerce) Department, dated 28.11.1998 leasing out an extent of 18.35 hectares of land covered under Survey Nos.106 and 107 of Ayitham Valasa Village in favour of A.P. Mineral Development Corporation for mining purpose for twenty years. It is further averred that the Government in G.O. Ms. No. 102 (Industries and Commerce) Department, dated 20.2.2001 issued Orders transferring the mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. Pvt. Ltd. for the unexpired period of lease, i.e. upto 1.6.2019. As rightly observed by the High Court, it is explicit from the written statement filed by D-1 that the plaintiff was made known of the fact that the Government issued order transferring mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. P. Ltd. (D-2) and the leased lands are in possession and enjoyment of M/s Sarwagi & Co. P. Ltd. As rightly pointed out by the learned counsel for the contesting respondent, in spite of the plaintiff being put in knowledge of the act of the person in possession of the suit property did not chose to implead the said M/s Sarwagi & Co. P. Ltd. (D-2) which came on record on its own application as D-2 in the suit. It is clear that in spite of reply notice and specific plea taken in the written statement of D-1, the plaintiff did not chose to take steps to get the plaint amended suitably and instead allowed the suit to go on and examined the witnesses on his behalf and cross-examined the witnesses produced by the defendants. Only during the stage of arguments, the plaintiff came up with an application under Order VI Rule 17 seeking amendment of the pleadings. We have already explained the implication of proviso to Rule 17. Though even after commencement of the trial, parties to the proceeding are entitled to seek amendment, in the light of the factual details such as clear information in the reply notice prior to the filing of the suit and specific plea in the written statement of D-1 which contained details of Government Orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument can not be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time. Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge.
|
Col. Avtar Singh Sekhon Vs. Union Of India | in 1 979 on the High Courts direction fresh evaluation of promotional merit gave the respondent (review) an edge over the petitioner on the score of seniority-not, surely, an extraneous factor. Necessarily, therefore, this Court in its May 7th order gave effect to the earlier judgment virtually with the consent of the Central Government. This is made more manifest in para 5 of the Governments affidavit put in on May 9, 1980. Paragraphs 4 and 5 of that affidavit merit excerption: "I state that the Government have taken steps for and are in the process of finalising a policy applicable to the officer cadre in the Army in all the Arms (Infantry, Artillery, Armoured Corps) and Services (Army Supply Corps, Army ordnance Service etc. including the Department of Military farms). The chief of the Army Staff has already appointed a High Power study Team comprising of Senior Army officers and headed by an Army Commander to study all aspects of selection and other career management procedures now in vogue in the Army including promotion procedures. The Study Team has already made considerable progress in their deliberations. After the Study . Team submits its Report, the matter will have to be considered by the Army Commanders and later examined by the Army Headquarters and the Government. The above process is likely to take some more time. It will not be appropriate to evolve a separate policy for a small Directorate like the Directorate of Military Farms alone. The entire officer Cadre of the Army in the Army like Infantry, Artillery, Armoured Corps and Services A like Army Supply Corps, Army ordnance Service etc. will have to be covered by one uniform policy as is existing at present.In the circumstances and in compliance with this Honble Courts directions/orders date d 26-3-1980 and 7-5-1980, the government are willing to abide by this Honble Courts directions given on 7-5-1980. Government, however, prays that this Honble Court may be pleased to direct that the promotion of the petitioner to the rank of Brigadier will be without prejudice to the policy which may ultimately be decided by the Government and subject further to the condition that if under the policy which may be evolved, the petitioner is not eligible for promotion to the rank of Brigadier, he would have no right to continue in the said rank." 8. It is obvious from this affidavit that Government had decided on abandoning the 1964 policy and was actively pursuing steps to fashion a new policy. So no rights on the old basis, if any, (though we see none) can enure to the benefit of the petitioner especially because he relies on his 3rd rank in a selection for one vacancy made in 1971. That apart, a selection of 1979 turned out in favour of the respondent. And, to come to think of it all, the petitioner is postponed but by a few months and the respondent has been far senior as colonel and will retire in August, 1980. The conspectus of circumstances hardly persuades us that there is injustice in the order of May 7th or May 9th. 9. We have sedulously followed the lucid submissions of Shri Kapil for review of the earlier direction and are clear in our conscience that neither law nor justice ha s suffered on account of the impugned orders. 10. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kanta and Anr. v. Sheik Habib this Court observe."A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.. The present stage is not a virgin ground but review of Dn earlier order which has the normal feature of finality." H 11. By this test and even after re-reading the 1964 policy statement for prima facie satisfying ourselves about vesting of valuable rights we are not satisfied that the relief of review is justified. The basics of this case are the choice of a brigadier is out of two colonels, the petitioner and the respondent. They are of equal merit as assessed in 1979. The latter is far ahead in seniority and the Central Government has agreed to appoint him as brigadier. He has a period of a month or so to go for retirement when the vacancy will be filled in. probably by the petitioner. The claim of the petitioner is based largely on the 1964 policy statement which the Central Government has decided to give up. Moreover, the claim itself is based upon an ancient selection made a decade ago when the vacant was only one and the petitioner was 3rd in rank. Moreover, whether the 1964 policy statement confers a right merely b y inclusion in the approved list where no appointment has taken place as brigadier and the question of substantive rank has not arisen. is. to say the least moot. 12. These are sufficient for us to repel the relief of review. Of course , the petitioner has effectively postponed the appointment of the respondent by getting a stay order. We make no comments whatever on the chain of events but permit ourselves the observation that the implementation of the final order which has been passed by this Court has been further delayed by the stay thereof by a learned single judge of this Court during the vacation; and so, we mention this only to justify our imperative direction that no more delay shall take place and the Central Government shall put the respondent in his position as Brigadier in charge of the Military Farms by tomorrow. Law is highly allergic to procrastination. | 1[ds]We see no reason, whatever to depart from that judgment and no basic flaw therein has been pointed out either. It was plainly laid down that no finality nor infallibility attached to the 1964 policy and the Central Government was free to revise or reverse that policy provided it acts justly and fairly. A months time to evolve a new policy, if felt necessary, was granted to Government and the learned Attorney General agreed to abide by this direction.Three factors need more than passing notice. The Defence Ministry-the file had been shown to us at the hearing of the appeal and there is material in the pleading also has been considering revision of the 1964 policy and the court has upheld its full freedom to do so. Secondly, the post of brigadier fell vacant in 1979 and, on the direction of the High Court, an evaluation of the claims of both was made by the Selection Panel on an updated basis. In this process, both were adjudged equal and the senior (the respondent in the review petition) was recommended for appointment. Thus, it is obvious that had the Defence Ministry been permitted to choose, the respondent would have enjoyed the post. There is nothing outrageous in picking the senior when both are otherwise equal. There is a human side to it also. The senior was to retire in a, few months and the other hopefully would have his inningsThe respondent, therefore, contested the petitioners 1971 credentials as obsolete and even obscurantist. We need not re-open that issue except to state that in the final order, passed after hearing both sides, the inviolability of the 1964 policy had been nailed. A closer reading of the 1964 policy statement reveals under it seniority for an earlier promotee is conferred in the substantive rank provided he has been earlier included in the approved list. Such a situation has not arisen here at all. Be that as it may, the final direction of the court appeal did permit the Central Government to evolve its policy within one month. This not having been done, the respondent drew the attention of the court to the non-compliance and for consequential orders. At the hearing of that petition (the so-called contempt petition) the respondent through Shri R. K. Garg and the Central Government through the learned Attorney General were heard. Shri Kapil for the petitioner (review) intervened and was heard. But we must fairly state that his client had not been given formal notice and perhaps he had a grievance of not having been heard adequately. We cannot fault him for filing a review petition but hasten to clarify that we wholly desist from making any observations on the happenings set out in the respondents papers put into court. Nor did we permit Shri Garg to refer to those matters since they were in our view. extraneous to the merits of the review petition and related to another proceeding pending before another bench. We must record that Shri Kapil has with youthful vigour and clarity of advocacy presented his case fairly. The gravamen of his grievance is merely that he should have been heard if a direction to his prejudice was to be made. We are mindful of the force in this plea and cannot dismiss it merely because the sands of time are running out against the respondent whose approaching retirement will make his legal success, if any, a phyrrhic victory and, worse a tragic irony. Of course. that, by the way, is the life-style of most litigativei Garg in his fighting submissions, complained how his client had been baulked of the fruits of success by dubious proceedings, but, while we are unconcerned about those anecdotes, we do consider that there is justice in his plea that he has been chosen by the panel in 1979, that a bare selection (not actual promotion) of 1971 on which the petitioner relies, is too stale to be relevant, that the Central Government itself had filed an affidavit in this court stating that they had appointed his client and that neither law nor justice supported any interference with this courts direction of 7-S-1980 to promote the respondent as BrigadierIt is obvious from this affidavit that Government had decided on abandoning the 1964 policy and was actively pursuing steps to fashion a new policy. So no rights on the old basis, if any, (though we see none) can enure to the benefit of the petitioner especially because he relies on his 3rd rank in a selection for one vacancy made in 1971. That apart, a selection of 1979 turned out in favour of the respondent. And, to come to think of it all, the petitioner is postponed but by a few months and the respondent has been far senior as colonel and will retire in August, 1980. The conspectus of circumstances hardly persuades us that there is injustice in the order of May 7th or May 9thWe have sedulously followed the lucid submissions of Shri Kapil for review of the earlier direction and are clear in our conscience that neither law nor justice ha s suffered on account of the impugned ordersA review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justiceBy this test and even after re-reading the 1964 policy statement for prima facie satisfying ourselves about vesting of valuable rights we are not satisfied that the relief of review is justified. The basics of this case are the choice of a brigadier is out of two colonels, the petitioner and the respondent. They are of equal merit as assessed in 1979. The latter is far ahead in seniority and the Central Government has agreed to appoint him as brigadier. He has a period of a month or so to go for retirement when the vacancy will be filled in. probably by the petitioner. The claim of the petitioner is based largely on the 1964 policy statement which the Central Government has decided to give up. Moreover, the claim itself is based upon an ancient selection made a decade ago when the vacant was only one and the petitioner was 3rd in rank. Moreover, whether the 1964 policy statement confers a right merely b y inclusion in the approved list where no appointment has taken place as brigadier and the question of substantive rank has not arisen. is. to say the least mootThese are sufficient for us to repel the relief of review. Of course , the petitioner has effectively postponed the appointment of the respondent by getting a stay order. We make no comments whatever on the chain of events but permit ourselves the observation that the implementation of the final order which has been passed by this Court has been further delayed by the stay thereof by a learned single judge of this Court during the vacation; and so, we mention this only to justify our imperative direction that no more delay shall take place and the Central Government shall put the respondent in his position as Brigadier in charge of the Military Farms by tomorrow. Law is highly allergic to procrastination. | 1 | 2,855 | 1,333 | ### 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:
in 1 979 on the High Courts direction fresh evaluation of promotional merit gave the respondent (review) an edge over the petitioner on the score of seniority-not, surely, an extraneous factor. Necessarily, therefore, this Court in its May 7th order gave effect to the earlier judgment virtually with the consent of the Central Government. This is made more manifest in para 5 of the Governments affidavit put in on May 9, 1980. Paragraphs 4 and 5 of that affidavit merit excerption: "I state that the Government have taken steps for and are in the process of finalising a policy applicable to the officer cadre in the Army in all the Arms (Infantry, Artillery, Armoured Corps) and Services (Army Supply Corps, Army ordnance Service etc. including the Department of Military farms). The chief of the Army Staff has already appointed a High Power study Team comprising of Senior Army officers and headed by an Army Commander to study all aspects of selection and other career management procedures now in vogue in the Army including promotion procedures. The Study Team has already made considerable progress in their deliberations. After the Study . Team submits its Report, the matter will have to be considered by the Army Commanders and later examined by the Army Headquarters and the Government. The above process is likely to take some more time. It will not be appropriate to evolve a separate policy for a small Directorate like the Directorate of Military Farms alone. The entire officer Cadre of the Army in the Army like Infantry, Artillery, Armoured Corps and Services A like Army Supply Corps, Army ordnance Service etc. will have to be covered by one uniform policy as is existing at present.In the circumstances and in compliance with this Honble Courts directions/orders date d 26-3-1980 and 7-5-1980, the government are willing to abide by this Honble Courts directions given on 7-5-1980. Government, however, prays that this Honble Court may be pleased to direct that the promotion of the petitioner to the rank of Brigadier will be without prejudice to the policy which may ultimately be decided by the Government and subject further to the condition that if under the policy which may be evolved, the petitioner is not eligible for promotion to the rank of Brigadier, he would have no right to continue in the said rank." 8. It is obvious from this affidavit that Government had decided on abandoning the 1964 policy and was actively pursuing steps to fashion a new policy. So no rights on the old basis, if any, (though we see none) can enure to the benefit of the petitioner especially because he relies on his 3rd rank in a selection for one vacancy made in 1971. That apart, a selection of 1979 turned out in favour of the respondent. And, to come to think of it all, the petitioner is postponed but by a few months and the respondent has been far senior as colonel and will retire in August, 1980. The conspectus of circumstances hardly persuades us that there is injustice in the order of May 7th or May 9th. 9. We have sedulously followed the lucid submissions of Shri Kapil for review of the earlier direction and are clear in our conscience that neither law nor justice ha s suffered on account of the impugned orders. 10. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kanta and Anr. v. Sheik Habib this Court observe."A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.. The present stage is not a virgin ground but review of Dn earlier order which has the normal feature of finality." H 11. By this test and even after re-reading the 1964 policy statement for prima facie satisfying ourselves about vesting of valuable rights we are not satisfied that the relief of review is justified. The basics of this case are the choice of a brigadier is out of two colonels, the petitioner and the respondent. They are of equal merit as assessed in 1979. The latter is far ahead in seniority and the Central Government has agreed to appoint him as brigadier. He has a period of a month or so to go for retirement when the vacancy will be filled in. probably by the petitioner. The claim of the petitioner is based largely on the 1964 policy statement which the Central Government has decided to give up. Moreover, the claim itself is based upon an ancient selection made a decade ago when the vacant was only one and the petitioner was 3rd in rank. Moreover, whether the 1964 policy statement confers a right merely b y inclusion in the approved list where no appointment has taken place as brigadier and the question of substantive rank has not arisen. is. to say the least moot. 12. These are sufficient for us to repel the relief of review. Of course , the petitioner has effectively postponed the appointment of the respondent by getting a stay order. We make no comments whatever on the chain of events but permit ourselves the observation that the implementation of the final order which has been passed by this Court has been further delayed by the stay thereof by a learned single judge of this Court during the vacation; and so, we mention this only to justify our imperative direction that no more delay shall take place and the Central Government shall put the respondent in his position as Brigadier in charge of the Military Farms by tomorrow. Law is highly allergic to procrastination.
### Response:
1
### Explanation:
months and the other hopefully would have his inningsThe respondent, therefore, contested the petitioners 1971 credentials as obsolete and even obscurantist. We need not re-open that issue except to state that in the final order, passed after hearing both sides, the inviolability of the 1964 policy had been nailed. A closer reading of the 1964 policy statement reveals under it seniority for an earlier promotee is conferred in the substantive rank provided he has been earlier included in the approved list. Such a situation has not arisen here at all. Be that as it may, the final direction of the court appeal did permit the Central Government to evolve its policy within one month. This not having been done, the respondent drew the attention of the court to the non-compliance and for consequential orders. At the hearing of that petition (the so-called contempt petition) the respondent through Shri R. K. Garg and the Central Government through the learned Attorney General were heard. Shri Kapil for the petitioner (review) intervened and was heard. But we must fairly state that his client had not been given formal notice and perhaps he had a grievance of not having been heard adequately. We cannot fault him for filing a review petition but hasten to clarify that we wholly desist from making any observations on the happenings set out in the respondents papers put into court. Nor did we permit Shri Garg to refer to those matters since they were in our view. extraneous to the merits of the review petition and related to another proceeding pending before another bench. We must record that Shri Kapil has with youthful vigour and clarity of advocacy presented his case fairly. The gravamen of his grievance is merely that he should have been heard if a direction to his prejudice was to be made. We are mindful of the force in this plea and cannot dismiss it merely because the sands of time are running out against the respondent whose approaching retirement will make his legal success, if any, a phyrrhic victory and, worse a tragic irony. Of course. that, by the way, is the life-style of most litigativei Garg in his fighting submissions, complained how his client had been baulked of the fruits of success by dubious proceedings, but, while we are unconcerned about those anecdotes, we do consider that there is justice in his plea that he has been chosen by the panel in 1979, that a bare selection (not actual promotion) of 1971 on which the petitioner relies, is too stale to be relevant, that the Central Government itself had filed an affidavit in this court stating that they had appointed his client and that neither law nor justice supported any interference with this courts direction of 7-S-1980 to promote the respondent as BrigadierIt is obvious from this affidavit that Government had decided on abandoning the 1964 policy and was actively pursuing steps to fashion a new policy. So no rights on the old basis, if any, (though we see none) can enure to the benefit of the petitioner especially because he relies on his 3rd rank in a selection for one vacancy made in 1971. That apart, a selection of 1979 turned out in favour of the respondent. And, to come to think of it all, the petitioner is postponed but by a few months and the respondent has been far senior as colonel and will retire in August, 1980. The conspectus of circumstances hardly persuades us that there is injustice in the order of May 7th or May 9thWe have sedulously followed the lucid submissions of Shri Kapil for review of the earlier direction and are clear in our conscience that neither law nor justice ha s suffered on account of the impugned ordersA review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justiceBy this test and even after re-reading the 1964 policy statement for prima facie satisfying ourselves about vesting of valuable rights we are not satisfied that the relief of review is justified. The basics of this case are the choice of a brigadier is out of two colonels, the petitioner and the respondent. They are of equal merit as assessed in 1979. The latter is far ahead in seniority and the Central Government has agreed to appoint him as brigadier. He has a period of a month or so to go for retirement when the vacancy will be filled in. probably by the petitioner. The claim of the petitioner is based largely on the 1964 policy statement which the Central Government has decided to give up. Moreover, the claim itself is based upon an ancient selection made a decade ago when the vacant was only one and the petitioner was 3rd in rank. Moreover, whether the 1964 policy statement confers a right merely b y inclusion in the approved list where no appointment has taken place as brigadier and the question of substantive rank has not arisen. is. to say the least mootThese are sufficient for us to repel the relief of review. Of course , the petitioner has effectively postponed the appointment of the respondent by getting a stay order. We make no comments whatever on the chain of events but permit ourselves the observation that the implementation of the final order which has been passed by this Court has been further delayed by the stay thereof by a learned single judge of this Court during the vacation; and so, we mention this only to justify our imperative direction that no more delay shall take place and the Central Government shall put the respondent in his position as Brigadier in charge of the Military Farms by tomorrow. Law is highly allergic to procrastination.
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ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. Vs. M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED | so did not file an appeal. In the circumstances of the case, we are of the opinion that the ends of justice will be met if we permit the petitioner to file a belated appeal within one month from today with an application for condonation of delay, whereon the appeal may be entertained. Learned counsel for the Revenue has stated before us that the Revenue will not object to the entertainment of the appeal on the ground that it is barred by time. In view of this direction and concession, the petitioner will have an effective alternative remedy by way of an appeal. (emphasis supplied) In that case, it appears that the writ petition was filed within statutory period and legal remedy was being pursued in good faith by the assessee (appellant). 18. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to entertain the writ petition assailing the assessment order even if filed beyond the statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such. 19. Arguendo, reverting to the factual matrix of the present case, it is noticed that the respondent had asserted that it was not aware about the passing of assessment order dated 21.6.2017 although it is admitted that the same was served on the authorised representative of the respondent on 22.6.2017. The date on which the respondent became aware about the order is not expressly stated either in the application for condonation of delay filed before the appellate authority, the affidavit filed in support of the said application or for that matter, in the memo of writ petition. On the other hand, it is seen that the amount equivalent to 12.5% of the tax amount came to be deposited on 12.9.2017 for and on behalf of respondent, without filing an appeal and without any demur - after the expiry of statutory period of maximum 60 days, prescribed under Section 31 of the 2005 Act. Not only that, the respondent filed a formal application under Rule 60 of the 2005 Rules on 8.5.2018 and pursued the same in appeal, which was rejected on 17.8.2018. Furthermore, the appeal in question against the assessment order came to be filed only on 24.9.2018 without disclosing the date on which the respondent in fact became aware about the existence of the assessment order dated 21.6.2017. On the other hand, in the affidavit of Mr. Sreedhar Routh, Site Director of the respondent company (filed in support of the application for condonation of delay before the appellate authority), it is stated that the company became aware about the irregularities committed by its erring official (Mr. P. Sriram Murthy) in the month of July, 2018, which pre-supposes that the respondent must have become aware about the assessment order, at least in July, 2018. In the same affidavit, it is asserted that the respondent company was not aware about the assessment order, as it was not brought to its notice by the employee concerned due to his negligence. The respondent in the writ petition has averred that the appeal was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days, when in fact, the order examines the cause set out by the respondent and concludes that the same was unsubstantiated by the respondent. That finding has not been examined by the High Court in the impugned judgment and order at all, but the High Court was more impressed by the fact that the respondent was in a position to offer some explanation about the discrepancies in respect of the volume of turnover and that the respondent had already deposited 12.5% of the additional amount in terms of the previous order passed by it. That reason can have no bearing on the justification for non-filing of the appeal within the statutory period. Notably, the respondent had relied on the affidavit of the Site Director and no affidavit of the concerned employee (P. Sriram Murthy, Deputy Manager-Finance) or at least the other employee [Siddhant Belgaonker, Senior Manager (Finance)], who was associated with the erring employee during the relevant period, has been filed in support of the stand taken in the application for condonation of delay. Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non-compliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all. 20. Reverting to the contention that the respondent having failed to assail the order passed by the appellate authority, dated 25.10.2018 rejecting the application for condonation of delay, the assessment order passed by the Assistant Commissioner, dated 21.6.2017 stood merged, need not detain us in view of the exposition of this Court in Raja Mechanical Company Private Limited vs. Commissioner of Central Excise, Delhi-I (2012) 12 SCC 613 . It is well settled that rejection of delay application by the appellate forum does not entail in merger of the assessment order with that order. 21. Taking any view of the matter, therefore, the High Court ought not to have entertained the subject writ petition filed by the respondent herein. The same deserved to be rejected at the threshold. | 1[ds]As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar AIR 1969 SC 556 and also Nivedita Sharma vs. Cellular Operators Association of India & Ors. (2011) 14 SCC 337 )14. A priori, we have no hesitation in taking the view that what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. (supra), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. vs. Union of India & Ors. AIR 2015 Guj 97 and also of the Karnataka High Court in Phoenix Plasts Company vs. Commissioner of Central Excise (Appeal-I), Bangalore 2013 (298) ELT 481 (Kar.) . The logic applied in these decisions proceeds on fallacious premise. For, these decisions are premised on the logic that provision such as Section 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the same is without jurisdiction or passed in excess of jurisdiction - by overstepping or crossing the limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice, where no procedure is specified. The High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three-Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose18. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to entertain the writ petition assailing the assessment order even if filed beyond the statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such19. Arguendo, reverting to the factual matrix of the present case, it is noticed that the respondent had asserted that it was not aware about the passing of assessment order dated 21.6.2017 although it is admitted that the same was served on the authorised representative of the respondent on 22.6.2017. The date on which the respondent became aware about the order is not expressly stated either in the application for condonation of delay filed before the appellate authority, the affidavit filed in support of the said application or for that matter, in the memo of writ petition. On the other hand, it is seen that the amount equivalent to 12.5% of the tax amount came to be deposited on 12.9.2017 for and on behalf of respondent, without filing an appeal and without any demur - after the expiry of statutory period of maximum 60 days, prescribed under Section 31 of the 2005 Act. Not only that, the respondent filed a formal application under Rule 60 of the 2005 Rules on 8.5.2018 and pursued the same in appeal, which was rejected on 17.8.2018. Furthermore, the appeal in question against the assessment order came to be filed only on 24.9.2018 without disclosing the date on which the respondent in fact became aware about the existence of the assessment order dated 21.6.2017. On the other hand, in the affidavit of Mr. Sreedhar Routh, Site Director of the respondent company (filed in support of the application for condonation of delay before the appellate authority), it is stated that the company became aware about the irregularities committed by its erring official (Mr. P. Sriram Murthy) in the month of July, 2018, which pre-supposes that the respondent must have become aware about the assessment order, at least in July, 2018. In the same affidavit, it is asserted that the respondent company was not aware about the assessment order, as it was not brought to its notice by the employee concerned due to his negligence. The respondent in the writ petition has averred that the appeal was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days, when in fact, the order examines the cause set out by the respondent and concludes that the same was unsubstantiated by the respondent. That finding has not been examined by the High Court in the impugned judgment and order at all, but the High Court was more impressed by the fact that the respondent was in a position to offer some explanation about the discrepancies in respect of the volume of turnover and that the respondent had already deposited 12.5% of the additional amount in terms of the previous order passed by it. That reason can have no bearing on the justification for non-filing of the appeal within the statutory period. Notably, the respondent had relied on the affidavit of the Site Director and no affidavit of the concerned employee (P. Sriram Murthy, Deputy Manager-Finance) or at least the other employee [Siddhant Belgaonker, Senior Manager (Finance)], who was associated with the erring employee during the relevant period, has been filed in support of the stand taken in the application for condonation of delay. Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non-compliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all20. Reverting to the contention that the respondent having failed to assail the order passed by the appellate authority, dated 25.10.2018 rejecting the application for condonation of delay, the assessment order passed by the Assistant Commissioner, dated 21.6.2017 stood merged, need not detain us in view of the exposition of this Court in Raja Mechanical Company Private Limited vs. Commissioner of Central Excise, Delhi-I (2012) 12 SCC 613 . It is well settled that rejection of delay application by the appellate forum does not entail in merger of the assessment order with that order21. Taking any view of the matter, therefore, the High Court ought not to have entertained the subject writ petition filed by the respondent herein. The same deserved to be rejected at the threshold. | 1 | 11,841 | 1,589 | ### 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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so did not file an appeal. In the circumstances of the case, we are of the opinion that the ends of justice will be met if we permit the petitioner to file a belated appeal within one month from today with an application for condonation of delay, whereon the appeal may be entertained. Learned counsel for the Revenue has stated before us that the Revenue will not object to the entertainment of the appeal on the ground that it is barred by time. In view of this direction and concession, the petitioner will have an effective alternative remedy by way of an appeal. (emphasis supplied) In that case, it appears that the writ petition was filed within statutory period and legal remedy was being pursued in good faith by the assessee (appellant). 18. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to entertain the writ petition assailing the assessment order even if filed beyond the statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such. 19. Arguendo, reverting to the factual matrix of the present case, it is noticed that the respondent had asserted that it was not aware about the passing of assessment order dated 21.6.2017 although it is admitted that the same was served on the authorised representative of the respondent on 22.6.2017. The date on which the respondent became aware about the order is not expressly stated either in the application for condonation of delay filed before the appellate authority, the affidavit filed in support of the said application or for that matter, in the memo of writ petition. On the other hand, it is seen that the amount equivalent to 12.5% of the tax amount came to be deposited on 12.9.2017 for and on behalf of respondent, without filing an appeal and without any demur - after the expiry of statutory period of maximum 60 days, prescribed under Section 31 of the 2005 Act. Not only that, the respondent filed a formal application under Rule 60 of the 2005 Rules on 8.5.2018 and pursued the same in appeal, which was rejected on 17.8.2018. Furthermore, the appeal in question against the assessment order came to be filed only on 24.9.2018 without disclosing the date on which the respondent in fact became aware about the existence of the assessment order dated 21.6.2017. On the other hand, in the affidavit of Mr. Sreedhar Routh, Site Director of the respondent company (filed in support of the application for condonation of delay before the appellate authority), it is stated that the company became aware about the irregularities committed by its erring official (Mr. P. Sriram Murthy) in the month of July, 2018, which pre-supposes that the respondent must have become aware about the assessment order, at least in July, 2018. In the same affidavit, it is asserted that the respondent company was not aware about the assessment order, as it was not brought to its notice by the employee concerned due to his negligence. The respondent in the writ petition has averred that the appeal was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days, when in fact, the order examines the cause set out by the respondent and concludes that the same was unsubstantiated by the respondent. That finding has not been examined by the High Court in the impugned judgment and order at all, but the High Court was more impressed by the fact that the respondent was in a position to offer some explanation about the discrepancies in respect of the volume of turnover and that the respondent had already deposited 12.5% of the additional amount in terms of the previous order passed by it. That reason can have no bearing on the justification for non-filing of the appeal within the statutory period. Notably, the respondent had relied on the affidavit of the Site Director and no affidavit of the concerned employee (P. Sriram Murthy, Deputy Manager-Finance) or at least the other employee [Siddhant Belgaonker, Senior Manager (Finance)], who was associated with the erring employee during the relevant period, has been filed in support of the stand taken in the application for condonation of delay. Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non-compliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all. 20. Reverting to the contention that the respondent having failed to assail the order passed by the appellate authority, dated 25.10.2018 rejecting the application for condonation of delay, the assessment order passed by the Assistant Commissioner, dated 21.6.2017 stood merged, need not detain us in view of the exposition of this Court in Raja Mechanical Company Private Limited vs. Commissioner of Central Excise, Delhi-I (2012) 12 SCC 613 . It is well settled that rejection of delay application by the appellate forum does not entail in merger of the assessment order with that order. 21. Taking any view of the matter, therefore, the High Court ought not to have entertained the subject writ petition filed by the respondent herein. The same deserved to be rejected at the threshold.
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the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three-Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose18. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to entertain the writ petition assailing the assessment order even if filed beyond the statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such19. Arguendo, reverting to the factual matrix of the present case, it is noticed that the respondent had asserted that it was not aware about the passing of assessment order dated 21.6.2017 although it is admitted that the same was served on the authorised representative of the respondent on 22.6.2017. The date on which the respondent became aware about the order is not expressly stated either in the application for condonation of delay filed before the appellate authority, the affidavit filed in support of the said application or for that matter, in the memo of writ petition. On the other hand, it is seen that the amount equivalent to 12.5% of the tax amount came to be deposited on 12.9.2017 for and on behalf of respondent, without filing an appeal and without any demur - after the expiry of statutory period of maximum 60 days, prescribed under Section 31 of the 2005 Act. Not only that, the respondent filed a formal application under Rule 60 of the 2005 Rules on 8.5.2018 and pursued the same in appeal, which was rejected on 17.8.2018. Furthermore, the appeal in question against the assessment order came to be filed only on 24.9.2018 without disclosing the date on which the respondent in fact became aware about the existence of the assessment order dated 21.6.2017. On the other hand, in the affidavit of Mr. Sreedhar Routh, Site Director of the respondent company (filed in support of the application for condonation of delay before the appellate authority), it is stated that the company became aware about the irregularities committed by its erring official (Mr. P. Sriram Murthy) in the month of July, 2018, which pre-supposes that the respondent must have become aware about the assessment order, at least in July, 2018. In the same affidavit, it is asserted that the respondent company was not aware about the assessment order, as it was not brought to its notice by the employee concerned due to his negligence. The respondent in the writ petition has averred that the appeal was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days, when in fact, the order examines the cause set out by the respondent and concludes that the same was unsubstantiated by the respondent. That finding has not been examined by the High Court in the impugned judgment and order at all, but the High Court was more impressed by the fact that the respondent was in a position to offer some explanation about the discrepancies in respect of the volume of turnover and that the respondent had already deposited 12.5% of the additional amount in terms of the previous order passed by it. That reason can have no bearing on the justification for non-filing of the appeal within the statutory period. Notably, the respondent had relied on the affidavit of the Site Director and no affidavit of the concerned employee (P. Sriram Murthy, Deputy Manager-Finance) or at least the other employee [Siddhant Belgaonker, Senior Manager (Finance)], who was associated with the erring employee during the relevant period, has been filed in support of the stand taken in the application for condonation of delay. Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non-compliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all20. Reverting to the contention that the respondent having failed to assail the order passed by the appellate authority, dated 25.10.2018 rejecting the application for condonation of delay, the assessment order passed by the Assistant Commissioner, dated 21.6.2017 stood merged, need not detain us in view of the exposition of this Court in Raja Mechanical Company Private Limited vs. Commissioner of Central Excise, Delhi-I (2012) 12 SCC 613 . It is well settled that rejection of delay application by the appellate forum does not entail in merger of the assessment order with that order21. Taking any view of the matter, therefore, the High Court ought not to have entertained the subject writ petition filed by the respondent herein. The same deserved to be rejected at the threshold.
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State of Rajasthan Vs. Om Prakash | to the accused. Assuming that the knife and clothes were discovered at the instance of the accused, mere discovery is not enough, unless the knife, connected to the accused, is shown to have been used by him. The police could have ascertained the finger prints from the knife and could have either proved or excluded use of the knife by the accused. Failure on the part of the prosecution is a serious lacuna, which raises a reasonable doubt regarding involvement of the accused and, therefore, the evidence, as is accepted, is grossly in-sufficient for sustaining the order of conviction. 5. However, the primary stand was that on the basis of a solitary witnesses evidence, conviction cannot be recorded; more particularly, when he is related to the deceased. The High Court accepted the plea and held that in case of solitary witness, and when he is related to the deceased, corroboration is a must. 6. In support of the appeal, learned counsel for the State submitted that the evidence of PW-1 clearly established the commission of offence by the respondent. There is no reason why he would depose falsely against his brother in law after his sister has lost her life. The decisions referred to by the High Court do not lay down any proposition of law to the effect that on the basis of solitary witnesses evidence conviction cannot be recorded and also that relatives evidence needs corroboration. Accused has not explained as to what he was doing if he was present in the house after the occurrence. He did not prefer to file any report with the police. His conduct is also relevant. 7. Learned counsel for the respondent on the other hand submitted that though the reasoning of the High Court is not elaborate, but the conclusion is correct. According to him, the corroboration was necessary because of contradictions in the version of PW 10, his conduct in not lodging the FIR, improvements made during the evidence and his presence having not been established by any acceptable evidence. Finally it is submitted that motive was not established. The High Court relied on the decision in Anil Phukan v. State of Assam (1993 (3) SCC 282 ) to hold that corroboration was necessary because it was a case of single witness supporting the prosecution version and the witnesses relationship. 8. The High Court seems to have misread this Courts observation. The relevant observations read as follows: "Conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the scene that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect." 9. Again in the same decision it was noted as follows: "Mere relationship of the witness with deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and, therefore, as a matter of prudence, court should look for some independent corroboration of his testimony to decide about the involvement of the other accused in the crime." 10. In the instant case the evidence of PW-1 was not shaken in spite of incisive cross examination. The High Court seems to have taken exception to the credibility of his evidence on the ground that he had graphically described his movements with the accused and deceased. It is not clear as to how that can be the ground to discard his evidence. He has only described the movements during the relevant period of time from one place to another. For that it was not necessary to have photogenic memory as the High Court seems to have inferred. On the contrary these were mere description of the places which at the relevant time the PW-1 visited in the company of the accused and the deceased.11. At this juncture it is to be noted that though learned counsel for the respondent tried to highlight certain improvements in the version of the witness it is not of consequence. Irrelevant details which do in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions. Interestingly in the cross examination of PW-1 the following suggestions was given to the witnesses: "Today I do not remember whether the accused had inflicted the said katari obliquely or straight." 12. The essence of the question appears to be that though the accused had given the katari blow, the witness did not remember whether it was inflicted obliquely or straight. This by itself may not be sufficient to fasten the guilt on the accused, but this is certainly a relevant factor. Additionally the conduct of the accused was highly suspicious. If he subsequently came to the house after the incident, he has not explained as to why he did not lodge any report with the police. That would have been his normal conduct, considering the fact that undisputedly the deceased breathed her last in the house itself. The effect of the unnatural conduct of the accused in strengthening the prosecution version has been highlighted by this Court in State of Karnataka v. K. Gopalakrishna [2005 (9) SCC 291. | 1[ds]8. The High Court seems to have misread this Courts observation. The relevant observations read ascan be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the scene that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.Again in the same decision it was noted asrelationship of the witness with deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and, therefore, as a matter of prudence, court should look for some independent corroboration of his testimony to decide about the involvement of the other accused in the crime.In the instant case the evidence of PW-1 was not shaken in spite of incisive cross examination. The High Court seems to have taken exception to the credibility of his evidence on the ground that he had graphically described his movements with the accused and deceased. It is not clear as to how that can be the ground to discard his evidence. He has only described the movements during the relevant period of time from one place to another. For that it was not necessary to have photogenic memory as the High Court seems to have inferred. On the contrary these were mere description of the places which at the relevant time the PW-1 visited in the company of the accused and the deceased.11. At this juncture it is to be noted that though learned counsel for the respondent tried to highlight certain improvements in the version of the witness it is not of consequence. Irrelevant details which do in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions. Interestingly in the cross examination of PW-1 the following suggestions was given to theI do not remember whether the accused had inflicted the said katari obliquely or straight.The essence of the question appears to be that though the accused had given the katari blow, the witness did not remember whether it was inflicted obliquely or straight. This by itself may not be sufficient to fasten the guilt on the accused, but this is certainly a relevant factor. Additionally the conduct of the accused was highly suspicious. If he subsequently came to the house after the incident, he has not explained as to why he did not lodge any report with the police. That would have been his normal conduct, considering the fact that undisputedly the deceased breathed her last in the house itself. The effect of the unnatural conduct of the accused in strengthening the prosecution version has been highlighted by this Court in State of Karnataka v. K. Gopalakrishna [2005 (9) SCC 291. | 1 | 1,618 | 639 | ### 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:
to the accused. Assuming that the knife and clothes were discovered at the instance of the accused, mere discovery is not enough, unless the knife, connected to the accused, is shown to have been used by him. The police could have ascertained the finger prints from the knife and could have either proved or excluded use of the knife by the accused. Failure on the part of the prosecution is a serious lacuna, which raises a reasonable doubt regarding involvement of the accused and, therefore, the evidence, as is accepted, is grossly in-sufficient for sustaining the order of conviction. 5. However, the primary stand was that on the basis of a solitary witnesses evidence, conviction cannot be recorded; more particularly, when he is related to the deceased. The High Court accepted the plea and held that in case of solitary witness, and when he is related to the deceased, corroboration is a must. 6. In support of the appeal, learned counsel for the State submitted that the evidence of PW-1 clearly established the commission of offence by the respondent. There is no reason why he would depose falsely against his brother in law after his sister has lost her life. The decisions referred to by the High Court do not lay down any proposition of law to the effect that on the basis of solitary witnesses evidence conviction cannot be recorded and also that relatives evidence needs corroboration. Accused has not explained as to what he was doing if he was present in the house after the occurrence. He did not prefer to file any report with the police. His conduct is also relevant. 7. Learned counsel for the respondent on the other hand submitted that though the reasoning of the High Court is not elaborate, but the conclusion is correct. According to him, the corroboration was necessary because of contradictions in the version of PW 10, his conduct in not lodging the FIR, improvements made during the evidence and his presence having not been established by any acceptable evidence. Finally it is submitted that motive was not established. The High Court relied on the decision in Anil Phukan v. State of Assam (1993 (3) SCC 282 ) to hold that corroboration was necessary because it was a case of single witness supporting the prosecution version and the witnesses relationship. 8. The High Court seems to have misread this Courts observation. The relevant observations read as follows: "Conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the scene that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect." 9. Again in the same decision it was noted as follows: "Mere relationship of the witness with deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and, therefore, as a matter of prudence, court should look for some independent corroboration of his testimony to decide about the involvement of the other accused in the crime." 10. In the instant case the evidence of PW-1 was not shaken in spite of incisive cross examination. The High Court seems to have taken exception to the credibility of his evidence on the ground that he had graphically described his movements with the accused and deceased. It is not clear as to how that can be the ground to discard his evidence. He has only described the movements during the relevant period of time from one place to another. For that it was not necessary to have photogenic memory as the High Court seems to have inferred. On the contrary these were mere description of the places which at the relevant time the PW-1 visited in the company of the accused and the deceased.11. At this juncture it is to be noted that though learned counsel for the respondent tried to highlight certain improvements in the version of the witness it is not of consequence. Irrelevant details which do in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions. Interestingly in the cross examination of PW-1 the following suggestions was given to the witnesses: "Today I do not remember whether the accused had inflicted the said katari obliquely or straight." 12. The essence of the question appears to be that though the accused had given the katari blow, the witness did not remember whether it was inflicted obliquely or straight. This by itself may not be sufficient to fasten the guilt on the accused, but this is certainly a relevant factor. Additionally the conduct of the accused was highly suspicious. If he subsequently came to the house after the incident, he has not explained as to why he did not lodge any report with the police. That would have been his normal conduct, considering the fact that undisputedly the deceased breathed her last in the house itself. The effect of the unnatural conduct of the accused in strengthening the prosecution version has been highlighted by this Court in State of Karnataka v. K. Gopalakrishna [2005 (9) SCC 291.
### Response:
1
### Explanation:
8. The High Court seems to have misread this Courts observation. The relevant observations read ascan be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the scene that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.Again in the same decision it was noted asrelationship of the witness with deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and, therefore, as a matter of prudence, court should look for some independent corroboration of his testimony to decide about the involvement of the other accused in the crime.In the instant case the evidence of PW-1 was not shaken in spite of incisive cross examination. The High Court seems to have taken exception to the credibility of his evidence on the ground that he had graphically described his movements with the accused and deceased. It is not clear as to how that can be the ground to discard his evidence. He has only described the movements during the relevant period of time from one place to another. For that it was not necessary to have photogenic memory as the High Court seems to have inferred. On the contrary these were mere description of the places which at the relevant time the PW-1 visited in the company of the accused and the deceased.11. At this juncture it is to be noted that though learned counsel for the respondent tried to highlight certain improvements in the version of the witness it is not of consequence. Irrelevant details which do in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions. Interestingly in the cross examination of PW-1 the following suggestions was given to theI do not remember whether the accused had inflicted the said katari obliquely or straight.The essence of the question appears to be that though the accused had given the katari blow, the witness did not remember whether it was inflicted obliquely or straight. This by itself may not be sufficient to fasten the guilt on the accused, but this is certainly a relevant factor. Additionally the conduct of the accused was highly suspicious. If he subsequently came to the house after the incident, he has not explained as to why he did not lodge any report with the police. That would have been his normal conduct, considering the fact that undisputedly the deceased breathed her last in the house itself. The effect of the unnatural conduct of the accused in strengthening the prosecution version has been highlighted by this Court in State of Karnataka v. K. Gopalakrishna [2005 (9) SCC 291.
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Jt. Family Of Mukund Das Raja Bhagwan Dass &Sons Etc Vs. State Bank Of Hyderabad | 11 was the basic provision enabling the creditor or the debtor to move the Board under the Act for settlement of debts. The Act also recognised other modes which would be tantamount to the making of such an application to the Board so as to confer jurisdiction on it to settle debts in accordance with the procedure prescribed by the Act. Section 25 embodied one of these modes. If a suit or appeal or execution proceeding etc. was pending in relation to such debt in any court it had to be transferred to the Board. The Board would proceed to deal with it as though an application under S. 11 had been made. The suit or other proceedings had to relate to a debt in respect of which an application under S. 11 could have been made to the Board. It was also necessary that the proceedings should be pending in the court on the date notified. This would follow from the provisions of S. 11. There could be no difficulty about proceedings which were taken in a court subsequent to an application made to the Board under S. 11. That proceeding had necessarily to be transferred on the notice given by the Board. The point which was canvassed before the Full Bench of the High Court was that the expression "pending" occurring in S. 25 was of wider amplitude and covered all cases of debts whether incurred before or subsequent to the notified date. The High Court, after an exhaustive discussion of the various provisions of the Act, came to the conclusion that there were clear indications in them that the debts to be determined and scaled down by the Board were only such debts as were existing on the date of the application provided for by S. 11. This is what was finally observed:"Thus the entire scheme of the Act makes it abundantly clear that matters concerned with the debts prior to the date of application alone (which date of course cannot extend beyond the notified date under section 11) are within the cognizance and competence of the Board. It follows that only cases relating to such debts and no other debts are liable to be transferred to it under Section 25 (1)."5. In our judgment the High Court came to the correct conclusion that the expression "pending" in Section 25 (l) must relate to proceedings which were pending on the notified date and could not take in any proceedings which came to be instituted after such date. The other condition for the applicability of S. 25 was that the suit or other proceedings must be in respect of a debt with regard to which a jagirdar or the creditor could make an application to the Board on or before the date which the Government had notified for settlement of debts due by the jagirdar. A close examination of S. 22 puts the matter beyond controversy. If no application had been made under S. 11 within the period specified therein or for recording a settlement made under S. 15 every debt due by the debtor was to stand extinguished. In a case of the present kind a debt would have stood extinguished if no application had been made under S. 11 within the specified period. Thus the material date would be the one notified by the Government under S. 11 and only those debts which were due on or before that date from a debtor or in respect of which any proceedings were pending in a court or before the Board could be the subject-matter of settlement by the Board. It may be mentioned that in Babibai Thakuji v. Fazluddin Usmanbhai, ILR (1954) Bom 535 = (AIR 1954 Bom 282 ) a similar provision of the Bombay Agricultural Debtors Relief Act on which the provisions of the Act were modelled came up for consideration and it was said with reference to Section 19 (1) of that Act that only those suits were liable to be transferred which were pending on the date when an application for adjustment of debts could have been made under S. 4 (which corresponded to S. 11 of the Act). In other words, if a suit was filed after the time to make an application for adjustment of debts had expired such a suit was not liable to be transferred. Since both the conditions for the applicability of S. 25 of the Act were not satisfied in the present case the decision of the High Court must be upheld and the appeal (C. A. 1138/66) dismissed. In order to avoid further proceedings which will entail needless expense learned counsel for the parties have agreed that the judgment-debtors will pay the decretal amount in four equal annual instalments. The first instalment which will represent 1/4th of the decretal amount shall be deposited in the executing Court on or before the first January 1971. The subsequent instalments each year shall be similarly deposited on or before first January. In case of failure on the part of the judgment-debtors to make the deposit of anyone of the instalments in time the entire amount due shall become recoverable at once. As and when the said deposit is -made the decree-holder will be entitled to withdraw the same. An order is directed to be made in terms of this settlement between the parties.6. Civil Appeals Nos. 1139 and 1140/66 arise out of the decree in C.C.C.A. Nos. 63 and 66 of 1959 dated February 1, 1963 in O.S.No.37 of 1958 So far as the appeal against the Bank-is concerned there is no merit in it because it has been proved and that finding could not be successfully assailed before us that the debt in question was a post-notification debt. In other words it came into existence after June 30, 1953 which was the date notified by the Government as the last date for settlement of debts due by jagirdars by an application made under S. 11 of the Act. | 0[ds]5. In our judgment the High Court came to the correct conclusion that the expression "pending" in Section 25 (l) must relate to proceedings which were pending on the notified date and could not take in any proceedings which came to be instituted after such date. The other condition for the applicability of S. 25 was that the suit or other proceedings must be in respect of a debt with regard to which a jagirdar or the creditor could make an application to the Board on or before the date which the Government had notified for settlement of debts due by the jagirdar. A close examination of S. 22 puts the matter beyond controversy. If no application had been made under S. 11 within the period specified therein or for recording a settlement made under S. 15 every debt due by the debtor was to stand extinguished. In a case of the present kind a debt would have stood extinguished if no application had been made under S. 11 within the specified period. Thus the material date would be the one notified by the Government under S. 11 and only those debts which were due on or before that date from a debtor or in respect of which any proceedings were pending in a court or before the Board could be the subject-matter of settlement by the Board. It may be mentioned that in Babibai Thakuji v. Fazluddin Usmanbhai, ILR (1954) Bom 535 = (AIR 1954 Bom 282 ) a similar provision of the Bombay Agricultural Debtors Relief Act on which the provisions of the Act were modelled came up for consideration and it was said with reference to Section 19 (1) of that Act that only those suits were liable to be transferred which were pending on the date when an application for adjustment of debts could have been made under S. 4 (which corresponded to S. 11 of the Act). In other words, if a suit was filed after the time to make an application for adjustment of debts had expired such a suit was not liable to be transferred. Since both the conditions for the applicability of S. 25 of the Act were not satisfied in the present case the decision of the High Court must be upheld and the appeal (C. A. 1138/66) dismissed. In order to avoid further proceedings which will entail needless expense learned counsel for the parties have agreed that the judgment-debtors will pay the decretal amount in four equal annual instalments. The first instalment which will represent 1/4th of the decretal amount shall be deposited in the executing Court on or before the first January 1971. The subsequent instalments each year shall be similarly deposited on or before first January. In case of failure on the part of the judgment-debtors to make the deposit of anyone of the instalments in time the entire amount due shall become recoverable at once. As and when the said deposit is -made the decree-holder will be entitled to withdraw the same. An order is directed to be made in terms of this settlement between the parties.Civil Appeal No.1140 of 1966 which has been preferred by the Bank involves a very short point. According to the decree of the High Court the plaintiff, namely the Bank was to proceed and execute the decree against the second defendant in the first instance and was to proceed against the first defendant only afterwards for such balance amount which could not be realized from the second defendant. It is not disputed that the liability of the first and the second defendant was joint and several and the decree of the High Court proceeded on the basis of some equitable relief which was sought for and granted to the first defendant. We are unable to hold and no such principle or statutory provision has been pointed out to us that any such equitable relief could be granted in. a suit of the nature filed by the Bank against the two defendants.Civil Appeals Nos. 1139 and 1140/66 arise out of the decree in C.C.C.A. Nos. 63 and 66 of 1959 dated February 1, 1963 in O.S.No.37 of 1958 So far as the appeal against the Bank-is concerned there is no merit in it because it has been proved and that finding could not be successfully assailed before us that the debt in question was a post-notification debt. In other words it came into existence after June 30, 1953 which was the date notified by the Government as the last date for settlement of debts due by jagirdars by an application made under S. 11 of the Act. | 0 | 3,352 | 822 | ### 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:
11 was the basic provision enabling the creditor or the debtor to move the Board under the Act for settlement of debts. The Act also recognised other modes which would be tantamount to the making of such an application to the Board so as to confer jurisdiction on it to settle debts in accordance with the procedure prescribed by the Act. Section 25 embodied one of these modes. If a suit or appeal or execution proceeding etc. was pending in relation to such debt in any court it had to be transferred to the Board. The Board would proceed to deal with it as though an application under S. 11 had been made. The suit or other proceedings had to relate to a debt in respect of which an application under S. 11 could have been made to the Board. It was also necessary that the proceedings should be pending in the court on the date notified. This would follow from the provisions of S. 11. There could be no difficulty about proceedings which were taken in a court subsequent to an application made to the Board under S. 11. That proceeding had necessarily to be transferred on the notice given by the Board. The point which was canvassed before the Full Bench of the High Court was that the expression "pending" occurring in S. 25 was of wider amplitude and covered all cases of debts whether incurred before or subsequent to the notified date. The High Court, after an exhaustive discussion of the various provisions of the Act, came to the conclusion that there were clear indications in them that the debts to be determined and scaled down by the Board were only such debts as were existing on the date of the application provided for by S. 11. This is what was finally observed:"Thus the entire scheme of the Act makes it abundantly clear that matters concerned with the debts prior to the date of application alone (which date of course cannot extend beyond the notified date under section 11) are within the cognizance and competence of the Board. It follows that only cases relating to such debts and no other debts are liable to be transferred to it under Section 25 (1)."5. In our judgment the High Court came to the correct conclusion that the expression "pending" in Section 25 (l) must relate to proceedings which were pending on the notified date and could not take in any proceedings which came to be instituted after such date. The other condition for the applicability of S. 25 was that the suit or other proceedings must be in respect of a debt with regard to which a jagirdar or the creditor could make an application to the Board on or before the date which the Government had notified for settlement of debts due by the jagirdar. A close examination of S. 22 puts the matter beyond controversy. If no application had been made under S. 11 within the period specified therein or for recording a settlement made under S. 15 every debt due by the debtor was to stand extinguished. In a case of the present kind a debt would have stood extinguished if no application had been made under S. 11 within the specified period. Thus the material date would be the one notified by the Government under S. 11 and only those debts which were due on or before that date from a debtor or in respect of which any proceedings were pending in a court or before the Board could be the subject-matter of settlement by the Board. It may be mentioned that in Babibai Thakuji v. Fazluddin Usmanbhai, ILR (1954) Bom 535 = (AIR 1954 Bom 282 ) a similar provision of the Bombay Agricultural Debtors Relief Act on which the provisions of the Act were modelled came up for consideration and it was said with reference to Section 19 (1) of that Act that only those suits were liable to be transferred which were pending on the date when an application for adjustment of debts could have been made under S. 4 (which corresponded to S. 11 of the Act). In other words, if a suit was filed after the time to make an application for adjustment of debts had expired such a suit was not liable to be transferred. Since both the conditions for the applicability of S. 25 of the Act were not satisfied in the present case the decision of the High Court must be upheld and the appeal (C. A. 1138/66) dismissed. In order to avoid further proceedings which will entail needless expense learned counsel for the parties have agreed that the judgment-debtors will pay the decretal amount in four equal annual instalments. The first instalment which will represent 1/4th of the decretal amount shall be deposited in the executing Court on or before the first January 1971. The subsequent instalments each year shall be similarly deposited on or before first January. In case of failure on the part of the judgment-debtors to make the deposit of anyone of the instalments in time the entire amount due shall become recoverable at once. As and when the said deposit is -made the decree-holder will be entitled to withdraw the same. An order is directed to be made in terms of this settlement between the parties.6. Civil Appeals Nos. 1139 and 1140/66 arise out of the decree in C.C.C.A. Nos. 63 and 66 of 1959 dated February 1, 1963 in O.S.No.37 of 1958 So far as the appeal against the Bank-is concerned there is no merit in it because it has been proved and that finding could not be successfully assailed before us that the debt in question was a post-notification debt. In other words it came into existence after June 30, 1953 which was the date notified by the Government as the last date for settlement of debts due by jagirdars by an application made under S. 11 of the Act.
### Response:
0
### Explanation:
5. In our judgment the High Court came to the correct conclusion that the expression "pending" in Section 25 (l) must relate to proceedings which were pending on the notified date and could not take in any proceedings which came to be instituted after such date. The other condition for the applicability of S. 25 was that the suit or other proceedings must be in respect of a debt with regard to which a jagirdar or the creditor could make an application to the Board on or before the date which the Government had notified for settlement of debts due by the jagirdar. A close examination of S. 22 puts the matter beyond controversy. If no application had been made under S. 11 within the period specified therein or for recording a settlement made under S. 15 every debt due by the debtor was to stand extinguished. In a case of the present kind a debt would have stood extinguished if no application had been made under S. 11 within the specified period. Thus the material date would be the one notified by the Government under S. 11 and only those debts which were due on or before that date from a debtor or in respect of which any proceedings were pending in a court or before the Board could be the subject-matter of settlement by the Board. It may be mentioned that in Babibai Thakuji v. Fazluddin Usmanbhai, ILR (1954) Bom 535 = (AIR 1954 Bom 282 ) a similar provision of the Bombay Agricultural Debtors Relief Act on which the provisions of the Act were modelled came up for consideration and it was said with reference to Section 19 (1) of that Act that only those suits were liable to be transferred which were pending on the date when an application for adjustment of debts could have been made under S. 4 (which corresponded to S. 11 of the Act). In other words, if a suit was filed after the time to make an application for adjustment of debts had expired such a suit was not liable to be transferred. Since both the conditions for the applicability of S. 25 of the Act were not satisfied in the present case the decision of the High Court must be upheld and the appeal (C. A. 1138/66) dismissed. In order to avoid further proceedings which will entail needless expense learned counsel for the parties have agreed that the judgment-debtors will pay the decretal amount in four equal annual instalments. The first instalment which will represent 1/4th of the decretal amount shall be deposited in the executing Court on or before the first January 1971. The subsequent instalments each year shall be similarly deposited on or before first January. In case of failure on the part of the judgment-debtors to make the deposit of anyone of the instalments in time the entire amount due shall become recoverable at once. As and when the said deposit is -made the decree-holder will be entitled to withdraw the same. An order is directed to be made in terms of this settlement between the parties.Civil Appeal No.1140 of 1966 which has been preferred by the Bank involves a very short point. According to the decree of the High Court the plaintiff, namely the Bank was to proceed and execute the decree against the second defendant in the first instance and was to proceed against the first defendant only afterwards for such balance amount which could not be realized from the second defendant. It is not disputed that the liability of the first and the second defendant was joint and several and the decree of the High Court proceeded on the basis of some equitable relief which was sought for and granted to the first defendant. We are unable to hold and no such principle or statutory provision has been pointed out to us that any such equitable relief could be granted in. a suit of the nature filed by the Bank against the two defendants.Civil Appeals Nos. 1139 and 1140/66 arise out of the decree in C.C.C.A. Nos. 63 and 66 of 1959 dated February 1, 1963 in O.S.No.37 of 1958 So far as the appeal against the Bank-is concerned there is no merit in it because it has been proved and that finding could not be successfully assailed before us that the debt in question was a post-notification debt. In other words it came into existence after June 30, 1953 which was the date notified by the Government as the last date for settlement of debts due by jagirdars by an application made under S. 11 of the Act.
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The Commissioner of Income Tax, Mumbai Vs. M/S. Everest Kento Cylinders Limited | submitted that EXIM Bank of USA has provided guarantee to Boeing Company of USA against the Hire Purchase Agreement for purchase of aircrafts by Jet Airways India. The EXIM bank has charged a commission of 3% plus commitment charges from Jet Airways as consideration for guarantee. Accordingly, he justified the bench mark in a arms length price for the bank guarantee at 3% of the amount of guarantee. In this manner Mr.Malhotra sought to justify arms length price of Rs.34,99,003/- and therefore the adjustment to the extent of Rs.28,50,353/-. As far as the order of the Tribunal issuing disallowance under section 14A of Rs.1 lac is concerned, he stated that the sum is arbitrary and unsustainable specially in view of the fact that the adjustment to the extent of Rs.4,47,649/- was offered before the Assessing Officer by the Assessee itself. He therefore submitted that three questions of law are substantial questions of law and therefore ought to considered and the appeal be admitted.8. Mr.Pardiwalla appearing on behalf of the assessee pointed out that the first issue of disallowing interest under section 14A of the I.T. Act, the order of the tribunal was prefectly justified and the disallowance of Rs.1 lakh is also justified in view of the fact that the adjustment to the extent of Rs.4,47,649/- that was offered before the Assessing Officer was not based on the original return at all. He pointed out that the original return did not contain any such concession and adhoc figure was something that the assessee submitted during the course of assessment. The admission was thus not a part of the return filed and which was before the Assessing Officer and the Assessee could not be bound by it. He therefore submitted that the qualification made by the Tribunal was appropriate considering the facts of the case. He further submitted that a sum of Rs.11.09 crores which was invested was sourced from funds raised by way of Initial public offering (IPO) to extent of Rs.90 crores. It was found to have been made out of funds raised by IPO and order of the Commissioner of Income Tax (Appeal) has been confirmed by the tribunal. He submitted that investment was made from the surplus funds and nothing was brought on record to show otherwise. The tribunal observed that after having considered fund flow statement there was no scope of supporting the views of the Commissioner of Income Tax and the Assessing Officer that the assesee has made investment out of interest bearing funds. Therefore, considering the fact that the interest bearing funds were not used and providing for some administrative costs, a fair assessment of Rs.1 lac is arrived at for the purpose of disallowance under section 14.9. Mr.Pardiwalla then assailed the TPO findings by making reference to the order of the Tribunal. He pointed out in paragraph 14(b) that the Associated Enterpise could have borrowed money as per prevailing rate in AE countries which were around 5.5 % per annum and during the said period AE had borrowed at the rate LIBOR + 0.83% for term loan for working capital purpose. Thus, if it could have borrowed at the said rate, the prevailing LIBOR rates were ranging from 5.3% and effective rate of borrowing was @ 6.13% for term loan and 5.8% for working capital loan, which was in line with normal rates prevailing in AE country. Mr.Pardiwalla further submitted that AE had obtained loan from its bankers on first charge towards the fixed asset and further hypothecation of inventory and book debts. AE has a gross fixed asset base valued at about USD 13 million and had inventory valued at USD 7.6 million, book debts of USD 5.4 million and cash and a bank balance of USD 1.8 million. He pointed out that against a loan outstanding of USD 10 million as of 31.3.2007, assets available were to the tune of USD 27.4 million. Accordingly there was no question the Associated Enterprise not being able to obtain a loan without this corporate guarantee issued by the Assessee.10. Having considered submissions of Mr.Malhotra for the revenue and Mr.Pardiwalla for the assessee, we are of the view that the order of the Tribunal as regards disallowance under section 14A and restricting the same to Rs.1 lac was justified in view of the material before the Tribunal. Furthermore, having considered the fact that a sum of Rs.4,47,649/- was not conceded in the return but was adhoc acceptance during the course of assessment, the assessee could not be bound by it. The Tribunal as the second fact finding authority had gone into factual aspects in great detail and therefore having interpreted the law as it stood on the relevant date the order passed cannot be faulted. In the matter of guarantee commission, the adjustment made by the TPO were based on instances restricted to the commercial banks providing guarantees and did not contemplate the issue of a Corporate Guarantee. No doubt these are contracts of guarantee, however, when they are Commercial banks that issue bank guarantees which are treated as the blood of commerce being easily encashable in the event of default, and if the bank guarantee had to be obtained from Commercial Banks, the higher commission could have been justified. In the present case, it is assessee company that is issuing Corporate Guarantee to the effect that if the subsidiary AE does not repay loan availed of it from ICICI, then in such event, the assessee would make good the amount and repay the loan. The considerations which applied for issuance of a Corporate guarantee are distinct and separate from that of bank guarantee and accordingly we are of the view that commission charged cannot be called in question, in the manner TPO has done. In our view the comparison is not as between like transactions but the comparisons are between guarantees issued by the commercial banks as against a Corporate Guarantee issued by holding company for the benefit of its AE, a subsidiary company. | 0[ds]10. Having considered submissions of Mr.Malhotra for the revenue and Mr.Pardiwalla for the assessee, we are of the view that the order of the Tribunal as regards disallowance under section 14A and restricting the same to Rs.1 lac was justified in view of the material before the Tribunal. Furthermore, having considered the fact that a sum of Rs.4,47,649/was not conceded in the return but was adhoc acceptance during the course of assessment, the assessee could not be bound by it. The Tribunal as the second fact finding authority had gone into factual aspects in great detail and therefore having interpreted the law as it stood on the relevant date the order passed cannot be faulted. In the matter of guarantee commission, the adjustment made by the TPO were based on instances restricted to the commercial banks providing guarantees and did not contemplate the issue of a Corporate Guarantee. No doubt these are contracts of guarantee, however, when they are Commercial banks that issue bank guarantees which are treated as the blood of commerce being easily encashable in the event of default, and if the bank guarantee had to be obtained from Commercial Banks, the higher commission could have been justified. In the present case, it is assessee company that is issuing Corporate Guarantee to the effect that if the subsidiary AE does not repay loan availed of it from ICICI, then in such event, the assessee would make good the amount and repay the loan. The considerations which applied for issuance of a Corporate guarantee are distinct and separate from that of bank guarantee and accordingly we are of the view that commission charged cannot be called in question, in the manner TPO has done. In our view the comparison is not as between like transactions but the comparisons are between guarantees issued by the commercial banks as against a Corporate Guarantee issued by holding company for the benefit of its AE, a subsidiary company. | 0 | 2,585 | 353 | ### 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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submitted that EXIM Bank of USA has provided guarantee to Boeing Company of USA against the Hire Purchase Agreement for purchase of aircrafts by Jet Airways India. The EXIM bank has charged a commission of 3% plus commitment charges from Jet Airways as consideration for guarantee. Accordingly, he justified the bench mark in a arms length price for the bank guarantee at 3% of the amount of guarantee. In this manner Mr.Malhotra sought to justify arms length price of Rs.34,99,003/- and therefore the adjustment to the extent of Rs.28,50,353/-. As far as the order of the Tribunal issuing disallowance under section 14A of Rs.1 lac is concerned, he stated that the sum is arbitrary and unsustainable specially in view of the fact that the adjustment to the extent of Rs.4,47,649/- was offered before the Assessing Officer by the Assessee itself. He therefore submitted that three questions of law are substantial questions of law and therefore ought to considered and the appeal be admitted.8. Mr.Pardiwalla appearing on behalf of the assessee pointed out that the first issue of disallowing interest under section 14A of the I.T. Act, the order of the tribunal was prefectly justified and the disallowance of Rs.1 lakh is also justified in view of the fact that the adjustment to the extent of Rs.4,47,649/- that was offered before the Assessing Officer was not based on the original return at all. He pointed out that the original return did not contain any such concession and adhoc figure was something that the assessee submitted during the course of assessment. The admission was thus not a part of the return filed and which was before the Assessing Officer and the Assessee could not be bound by it. He therefore submitted that the qualification made by the Tribunal was appropriate considering the facts of the case. He further submitted that a sum of Rs.11.09 crores which was invested was sourced from funds raised by way of Initial public offering (IPO) to extent of Rs.90 crores. It was found to have been made out of funds raised by IPO and order of the Commissioner of Income Tax (Appeal) has been confirmed by the tribunal. He submitted that investment was made from the surplus funds and nothing was brought on record to show otherwise. The tribunal observed that after having considered fund flow statement there was no scope of supporting the views of the Commissioner of Income Tax and the Assessing Officer that the assesee has made investment out of interest bearing funds. Therefore, considering the fact that the interest bearing funds were not used and providing for some administrative costs, a fair assessment of Rs.1 lac is arrived at for the purpose of disallowance under section 14.9. Mr.Pardiwalla then assailed the TPO findings by making reference to the order of the Tribunal. He pointed out in paragraph 14(b) that the Associated Enterpise could have borrowed money as per prevailing rate in AE countries which were around 5.5 % per annum and during the said period AE had borrowed at the rate LIBOR + 0.83% for term loan for working capital purpose. Thus, if it could have borrowed at the said rate, the prevailing LIBOR rates were ranging from 5.3% and effective rate of borrowing was @ 6.13% for term loan and 5.8% for working capital loan, which was in line with normal rates prevailing in AE country. Mr.Pardiwalla further submitted that AE had obtained loan from its bankers on first charge towards the fixed asset and further hypothecation of inventory and book debts. AE has a gross fixed asset base valued at about USD 13 million and had inventory valued at USD 7.6 million, book debts of USD 5.4 million and cash and a bank balance of USD 1.8 million. He pointed out that against a loan outstanding of USD 10 million as of 31.3.2007, assets available were to the tune of USD 27.4 million. Accordingly there was no question the Associated Enterprise not being able to obtain a loan without this corporate guarantee issued by the Assessee.10. Having considered submissions of Mr.Malhotra for the revenue and Mr.Pardiwalla for the assessee, we are of the view that the order of the Tribunal as regards disallowance under section 14A and restricting the same to Rs.1 lac was justified in view of the material before the Tribunal. Furthermore, having considered the fact that a sum of Rs.4,47,649/- was not conceded in the return but was adhoc acceptance during the course of assessment, the assessee could not be bound by it. The Tribunal as the second fact finding authority had gone into factual aspects in great detail and therefore having interpreted the law as it stood on the relevant date the order passed cannot be faulted. In the matter of guarantee commission, the adjustment made by the TPO were based on instances restricted to the commercial banks providing guarantees and did not contemplate the issue of a Corporate Guarantee. No doubt these are contracts of guarantee, however, when they are Commercial banks that issue bank guarantees which are treated as the blood of commerce being easily encashable in the event of default, and if the bank guarantee had to be obtained from Commercial Banks, the higher commission could have been justified. In the present case, it is assessee company that is issuing Corporate Guarantee to the effect that if the subsidiary AE does not repay loan availed of it from ICICI, then in such event, the assessee would make good the amount and repay the loan. The considerations which applied for issuance of a Corporate guarantee are distinct and separate from that of bank guarantee and accordingly we are of the view that commission charged cannot be called in question, in the manner TPO has done. In our view the comparison is not as between like transactions but the comparisons are between guarantees issued by the commercial banks as against a Corporate Guarantee issued by holding company for the benefit of its AE, a subsidiary company.
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0
### Explanation:
10. Having considered submissions of Mr.Malhotra for the revenue and Mr.Pardiwalla for the assessee, we are of the view that the order of the Tribunal as regards disallowance under section 14A and restricting the same to Rs.1 lac was justified in view of the material before the Tribunal. Furthermore, having considered the fact that a sum of Rs.4,47,649/was not conceded in the return but was adhoc acceptance during the course of assessment, the assessee could not be bound by it. The Tribunal as the second fact finding authority had gone into factual aspects in great detail and therefore having interpreted the law as it stood on the relevant date the order passed cannot be faulted. In the matter of guarantee commission, the adjustment made by the TPO were based on instances restricted to the commercial banks providing guarantees and did not contemplate the issue of a Corporate Guarantee. No doubt these are contracts of guarantee, however, when they are Commercial banks that issue bank guarantees which are treated as the blood of commerce being easily encashable in the event of default, and if the bank guarantee had to be obtained from Commercial Banks, the higher commission could have been justified. In the present case, it is assessee company that is issuing Corporate Guarantee to the effect that if the subsidiary AE does not repay loan availed of it from ICICI, then in such event, the assessee would make good the amount and repay the loan. The considerations which applied for issuance of a Corporate guarantee are distinct and separate from that of bank guarantee and accordingly we are of the view that commission charged cannot be called in question, in the manner TPO has done. In our view the comparison is not as between like transactions but the comparisons are between guarantees issued by the commercial banks as against a Corporate Guarantee issued by holding company for the benefit of its AE, a subsidiary company.
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Mani Mani And Ors Vs. Mani Joshua | the testator should be taken to have disposed of only that property which was his own and which he was entitled to deal with and bequeath in law. It is urged that, in the present case, the testator had already made a valid and legal settlement in 1935 of the suit property. He could not have thus dealt with or bequeathed that property and in the absence of express and specific mention in Exh. 3 that he was doing so the rule of election would not be attracted.8. The circumstances in which election takes place are set out in Section 180 of the Indian Succession Act. According to its provisions "where a person by his will professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will". The English law, however, applies the principle of compensation also to election. It means the electing legatee has to compensate the disappointed legatee out of the property given to him. As pointed out in the Indian Succession Act by N. C. Sen Gupta, p. 295, the rule which the been embodied in Section 180 does not recognise the principle of compensation. Under its provisions if the legatee has been given any benefit under the will and his own property has also been disposed of by that very will he must relinquish all his claims under the will if he chooses to retain his property. It is not disputed, in the present case, that if the testator has, by Exh. 3, disposed of the property which had been gifted to Joshua the rule embodied in Section 180 would become applicable and Joshua cannot take the property which had been gifted to him if he has chosen to retain the property bequathed to him by the will. The question is whether the testator having omitted to state in Exh. 3 that he was giving away the properties which had been gifted to Joshua in the year 1935 to Mani to whom only a residuary bequest of the entire remaining assets had been made the principle of election will become inapplicable.9. Our attention has been invited on behalf of Joshua to the following observation of the Master of Rolls in Miller v. Thurgood, (1864) 10 LT 255:"If a testor, having an undivided interest in any particular property, disposes of its specifically, and gives to the co-owner of the property a benefit under his will, the question of election arises. But if he disposes of it, not specifically but only under general words, no question of election arises."But as pointed out in para 1097, p. 592. Halsburys Laws of England, Vol. 14, in order to raise a case of election under a will it must be clearly shown that the testator intended to dispose of the particular property over which he had no disposing power. This intention must appear on the face of the will either by express words or by necessary conclusion from the circumstances disclosed by the will. The presumption, however, is that a testator intends to dispose of his own property and general words will not usually be construed so as to include other property.In Whitley v. Whitley, (1862) 54 ER 1104 the wife of the testator was entitled to a share of the produce of the R. estate, which had been directed to be sold. By his will the testator gave all "his share estate and interest" in the R. estate to his daughter and benefit out of his own estate to his widow. It was held that the will raised a case for election as against the widow. The Master of the Rolls (Sir John Romilly) said that the testator intended to dispose of the property by will which was not his but belonged to his wife and she having taken and enjoyed the benefit provided for her under his will must be considered as having elected. The property, must, therefore go as if it had been the testators property. This case illustrates how the rule of election has been applied where, even thought, general words had been used but by necessary conclusion from the circumstances disclosed by the will it was inferred that the testator intended to dispose of the property which belonged to his wife and not to him.According to the footnote in Halsburys Laws of England, Vol. 14 (supra), in the case of a will one may even gather an intention by the testator to include property belonging to another in a gift of residue for it is necessary to construe a will as a whole.Reference has been made to Re Allens Estate, Prescott v. Allen and Beaumont, 1945-2 All ER 264, where a gift of the "residue of my property" was construed as the residue of the testators ostensible property. A fairly strict approach in such cases has been indicated by Chitty, J., in Re Booker; Booker v. Booker, (1886) 54 LT 239, 242 in these words:"A great safeguard in applying that doctrine is this-that you are not merely to strain words to make them include that which does not belong to the testator; but you must be satisfied beyond all reasonable doubt that it was his intention to include that which was not his own, and that you cannot impute to him after having read his will any other intention."It is thus necessary to look at the will and read it carefully which has been done by us and we have no manner of doubt that Uthupu, the testator, intended to include properties gifted to Joshua by the settlement of 1935 in the bequest which he made to Mani of the entire residue. Joshua was thus put to election and could not claim those properties if he wished to take the benefit under the will. | 1[ds]The only other declaration or statement in the will which deserves notice is thewill is executed by resolving as these and totally changing all the deeds registered by me prior to this and the Wills kept in custody; and this Will alone shall, unless I act otherwise, be and ought to be in force init is quite clear that the testator was somehow under the impression that he was competent to cancel and revoke not only the previous wills but also the two settlements including the one made in the year 1935. It appears that although by the registered deed of 1935 he had gifted certain properties to his wife and two sons he thought that he could undo what he had done by making a will by which he left virtually no property to Joshua since he was annoyed with him. That is apparently the reason why he clearly stated in the will (Ex. 3) in the very beginning that he had executed a will on 9th Makarom this year in accordance with law, invalidating the above two deeds".6. He relented in favour of Joshua and that is the reason why he made the will (Exh. 3) but his state of mind continued to be the same, namely, he considered that he was fully competent and entitled to cancel all previous settlements and wills and start, as if it were, on a clean slate. The detailed bequests which he made (Exh. 3) indicate that he meant to dispose of the entire estate including the properties which had been the subject-matter of the settlement made in the year 1935. There are two strong indications in the will (Exh. 3) of his having dealt with the entire property which he thought he could dispose of or in respect of which he could make bequest and leave legacies on the footing that no title had passed to any of the donees under the settlement of 1935. The first is the recital both in the beginning and towards the concluding part of Exh. 3 that he had cancelled the previous settlements and wills and that the only document which would govern the disposition of properties would be Exh. 3. Even if it be assumed as has been suggested, by learned counsel for Joshua - respondent - that the declaration about invalidating the two deeds of settlement was confined to the first will executed in January 1943, the statement made towards the conclusion of the will (Exh. 3) leaves no doubt that the testator sought to revoke not only the previous wills but also the registered deeds which clearly meant the deeds of settlement executed in 1927 and 1935 respectively. The second significant fact is that the testator purported to give to Joshua five items of property which included certain properties which had been given by the settlement of 1935 to Mariamma and Mani. If the testator did not want to make any disposition of those properties which formed the subject-matter of gift in 1935 there was no reason why he should have given to Joshua properties which had been gifted to Mariamma and Mani. All this could have happened only if the testator was treating the settlement of 1935 as nonexistent having been revoked by him.We are satisfied that a correct reading of the will (Exh. 3) yields the only result that the testator Uthupu treated the entire properties which had formed the subject matter of gift or otherwise as his and which could be disposed of by him as he liked. The High Court was in error in disagreeing with the trial court on this matter.8. The circumstances in which election takes place are set out in Section 180 of the Indian Succession Act. According to its provisions "where a person by his will professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will". | 1 | 3,897 | 741 | ### 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:
the testator should be taken to have disposed of only that property which was his own and which he was entitled to deal with and bequeath in law. It is urged that, in the present case, the testator had already made a valid and legal settlement in 1935 of the suit property. He could not have thus dealt with or bequeathed that property and in the absence of express and specific mention in Exh. 3 that he was doing so the rule of election would not be attracted.8. The circumstances in which election takes place are set out in Section 180 of the Indian Succession Act. According to its provisions "where a person by his will professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will". The English law, however, applies the principle of compensation also to election. It means the electing legatee has to compensate the disappointed legatee out of the property given to him. As pointed out in the Indian Succession Act by N. C. Sen Gupta, p. 295, the rule which the been embodied in Section 180 does not recognise the principle of compensation. Under its provisions if the legatee has been given any benefit under the will and his own property has also been disposed of by that very will he must relinquish all his claims under the will if he chooses to retain his property. It is not disputed, in the present case, that if the testator has, by Exh. 3, disposed of the property which had been gifted to Joshua the rule embodied in Section 180 would become applicable and Joshua cannot take the property which had been gifted to him if he has chosen to retain the property bequathed to him by the will. The question is whether the testator having omitted to state in Exh. 3 that he was giving away the properties which had been gifted to Joshua in the year 1935 to Mani to whom only a residuary bequest of the entire remaining assets had been made the principle of election will become inapplicable.9. Our attention has been invited on behalf of Joshua to the following observation of the Master of Rolls in Miller v. Thurgood, (1864) 10 LT 255:"If a testor, having an undivided interest in any particular property, disposes of its specifically, and gives to the co-owner of the property a benefit under his will, the question of election arises. But if he disposes of it, not specifically but only under general words, no question of election arises."But as pointed out in para 1097, p. 592. Halsburys Laws of England, Vol. 14, in order to raise a case of election under a will it must be clearly shown that the testator intended to dispose of the particular property over which he had no disposing power. This intention must appear on the face of the will either by express words or by necessary conclusion from the circumstances disclosed by the will. The presumption, however, is that a testator intends to dispose of his own property and general words will not usually be construed so as to include other property.In Whitley v. Whitley, (1862) 54 ER 1104 the wife of the testator was entitled to a share of the produce of the R. estate, which had been directed to be sold. By his will the testator gave all "his share estate and interest" in the R. estate to his daughter and benefit out of his own estate to his widow. It was held that the will raised a case for election as against the widow. The Master of the Rolls (Sir John Romilly) said that the testator intended to dispose of the property by will which was not his but belonged to his wife and she having taken and enjoyed the benefit provided for her under his will must be considered as having elected. The property, must, therefore go as if it had been the testators property. This case illustrates how the rule of election has been applied where, even thought, general words had been used but by necessary conclusion from the circumstances disclosed by the will it was inferred that the testator intended to dispose of the property which belonged to his wife and not to him.According to the footnote in Halsburys Laws of England, Vol. 14 (supra), in the case of a will one may even gather an intention by the testator to include property belonging to another in a gift of residue for it is necessary to construe a will as a whole.Reference has been made to Re Allens Estate, Prescott v. Allen and Beaumont, 1945-2 All ER 264, where a gift of the "residue of my property" was construed as the residue of the testators ostensible property. A fairly strict approach in such cases has been indicated by Chitty, J., in Re Booker; Booker v. Booker, (1886) 54 LT 239, 242 in these words:"A great safeguard in applying that doctrine is this-that you are not merely to strain words to make them include that which does not belong to the testator; but you must be satisfied beyond all reasonable doubt that it was his intention to include that which was not his own, and that you cannot impute to him after having read his will any other intention."It is thus necessary to look at the will and read it carefully which has been done by us and we have no manner of doubt that Uthupu, the testator, intended to include properties gifted to Joshua by the settlement of 1935 in the bequest which he made to Mani of the entire residue. Joshua was thus put to election and could not claim those properties if he wished to take the benefit under the will.
### Response:
1
### Explanation:
The only other declaration or statement in the will which deserves notice is thewill is executed by resolving as these and totally changing all the deeds registered by me prior to this and the Wills kept in custody; and this Will alone shall, unless I act otherwise, be and ought to be in force init is quite clear that the testator was somehow under the impression that he was competent to cancel and revoke not only the previous wills but also the two settlements including the one made in the year 1935. It appears that although by the registered deed of 1935 he had gifted certain properties to his wife and two sons he thought that he could undo what he had done by making a will by which he left virtually no property to Joshua since he was annoyed with him. That is apparently the reason why he clearly stated in the will (Ex. 3) in the very beginning that he had executed a will on 9th Makarom this year in accordance with law, invalidating the above two deeds".6. He relented in favour of Joshua and that is the reason why he made the will (Exh. 3) but his state of mind continued to be the same, namely, he considered that he was fully competent and entitled to cancel all previous settlements and wills and start, as if it were, on a clean slate. The detailed bequests which he made (Exh. 3) indicate that he meant to dispose of the entire estate including the properties which had been the subject-matter of the settlement made in the year 1935. There are two strong indications in the will (Exh. 3) of his having dealt with the entire property which he thought he could dispose of or in respect of which he could make bequest and leave legacies on the footing that no title had passed to any of the donees under the settlement of 1935. The first is the recital both in the beginning and towards the concluding part of Exh. 3 that he had cancelled the previous settlements and wills and that the only document which would govern the disposition of properties would be Exh. 3. Even if it be assumed as has been suggested, by learned counsel for Joshua - respondent - that the declaration about invalidating the two deeds of settlement was confined to the first will executed in January 1943, the statement made towards the conclusion of the will (Exh. 3) leaves no doubt that the testator sought to revoke not only the previous wills but also the registered deeds which clearly meant the deeds of settlement executed in 1927 and 1935 respectively. The second significant fact is that the testator purported to give to Joshua five items of property which included certain properties which had been given by the settlement of 1935 to Mariamma and Mani. If the testator did not want to make any disposition of those properties which formed the subject-matter of gift in 1935 there was no reason why he should have given to Joshua properties which had been gifted to Mariamma and Mani. All this could have happened only if the testator was treating the settlement of 1935 as nonexistent having been revoked by him.We are satisfied that a correct reading of the will (Exh. 3) yields the only result that the testator Uthupu treated the entire properties which had formed the subject matter of gift or otherwise as his and which could be disposed of by him as he liked. The High Court was in error in disagreeing with the trial court on this matter.8. The circumstances in which election takes place are set out in Section 180 of the Indian Succession Act. According to its provisions "where a person by his will professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will".
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Paryavaran Suraksha Samiti & Another Vs. Union of India & Others | is in default. On the receipt of any such complaint, the concerned Pollution Control Board, shall be obliged to verify the same, and take such action against the defaulting industry, as may be permissible in law. Such action, would be in addition to the discontinuation of industrial activity forthwith, in the manner directed hereinabove (but only after verification). 7. Having effectuated the directions recorded in the foregoing paragraphs, the next step would be, to set up common effluent treatment plants. We are informed, that for the aforesaid purpose, the financial contribution of the Central Government is to the extent of 50 per cent, that of the concerned State Government (including the concerned Union Territory) is 25 per cent. The balance 25 per cent, is to be arranged by way of loans from banks. The above loans, are to be repaid, by the industrial areas, and/or industrial clusters. We are also informed, that the setting up of a common effluent treatment plant, would ordinarily take approximately two years (in cases where the process has yet to be commenced). The reason for the above prolonged period, for setting up "common effluent treatment plants", according to learned counsel, is not only financial, but also, the requirement of land acquisition, for the same.8. In view of the fact, that the financial position has been taken care of, as has been expressed above, we are of the view, that the setting up of "common effluent treatment plants", should be taken up as an urgent mission. With reference to common effluent treatment plants, which are already under implementation, we hope and expect, that they would be completed within the time lines already postulated. With reference to common effluent treatment plants, which are yet to be set up, we consider it just and appropriate to direct, the concerned State Governments (including, the concerned Union Territories) to complete the same within a period of three years, from today. We are also of the view, that while acquiring land for the common effluent treatment plants, the concerned State Governments (including, the concerned Union Territories) will acquire such additional land, as may be required for setting up "zero liquid discharge plants", if and when required in the future.9. During the course of hearing, we were informed by learned counsel, that the running of common effluent treatment plants, which are in place, is also a matter of serious concern. In this behalf, it was submitted, that some of the common effluent treatment plants are dis-functional, because of lack of finances, whilst some others are dis-functional, because of the requirement of repairs, which have not been carried out, again because of lack of financial resources.10. Given the responsibility vested in Municipalities under Article 243W of the Constitution, as also, in item 6 of the 12th Schedule, wherein the aforesaid obligation, pointedly extends to "public health, sanitation conservancy and solid waste management", we are of the view, that the onus to operate the existing common effluent treatment plants, rests on municipalities (and/or local bodies). Given the aforesaid responsibility, the concerned municipalities (and/or local bodies), cannot be permitted to shy away, from discharging this onerous duty. In case there are further financial constraints, the remedy lies in Articles 243X and 243Y of the Constitution. It will be open to the concerned municipalities(and/or local bodies), to evolve norms to recover funds, for the purpose of generating finances to install and run, all the "common effluent treatment plants", within the purview of the provisions referred to hereinabove. Needless to mention, that such norms as may be evolved for generating financial resources, may include all or any, of the commercial, industrial and domestic beneficiaries, of the facility. The process of evolving the above norms, shall be supervised by the concerned State Government (Union Territory), through the Secretaries, Urban Development and Local Bodies respectively, (depending on the location of the respective common effluent treatment plant). The norms for generating funds, for setting up and/or operating the common effluent treatment plant shall be finalized, on or before 31.03.2017, so as to be implemented with effect from the next financial year. In case, such norms are not in place, before the commencement of the next financial year, the concerned State Governments (or the Union Territories), shall cater to the financial requirements, of running the "common effluent treatment plants", which are presently dis-functional, from their own financial resources.11. Just in the manner suggested hereinabove, for the purpose of setting up of "common effluent treatment plants", the concerned State Governments (including, the concerned Union Territories) will prioritize such cities, towns and villages, which discharge industrial pollutants and sewer, directly into rivers and water bodies.12. We are of the view, that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We therefore hereby direct, that sewage treatment plants shall also be set up and made functional, within the time lines and the format, expressed hereinabove.13. We are of the view, that mere directions are inconsequential, unless a rigid implementation mechanism is laid down. We therefore hereby provide, that the directions pertaining to continuation of industrial activity only when there is in place a functional "primary effluent treatment plants", and the setting up of functional "common effluent treatment plants" within the time lines, expressed above, shall be of the Member Secretaries of the concerned Pollution Control Boards. The Secretary of the Department of Environment, of the concerned State Government (and the concerned Union Territory), shall be answerable in case of default. The concerned Secretaries to the Government shall be responsible of monitoring the progress, and issuing necessary directions to the concerned Pollution Control Board, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data, and shall furnish the same to the Bench of the jurisdictional National Green Tribunal. | 1[ds]3. During the course of hearing, it was not disputed between the rival parties, that the initiation of the process has to be at the individual level of the industry itself. It was suggested that each industry which requires "consent to operate" from the concerned Pollution Control Board, should be mandated to set up a functional primary effluent treatment plant. We are informed, that only when such an effluent treatment plant has been set up, the concerned Pollution Control Board grants a "no objection" to the industry, and accordingly "consent to operate", so as to allow the industry to become functional. It is therefore apparent, that all running industrial units, which require "consent to operate" from the concerned Pollution Control Board, have a functional primary effluent treatment plant, in place.The question that arises for our consideration is, whether the same is maintained in good order, after the industry itself has become functional.The industry requiring "consent to operate", can be permitted to run, only if its primary effluent treatment plant, is functional. We therefore consider it just and appropriate, to direct the concerned State Pollution Control Boards, to issue notices to all industrial units, which require "consent to operate", by way of a common advertisement, requiring them to make their primary effluent treatment plants fully operational, within three months from today. On the expiry of the notice period of three months, the concerned State Pollution Control Board(s) are mandated to carry out inspections, to verify, whether or not, each industrial unit requiring "consent to operate", has a functional primary effluent treatment plant. Such of the industrial units, which have not been able to make their primary effluent treatment plant fully operational, within the notice period, shall be restrained from any further industrial activity. This direction may be implemented by requiring the concerned electricity supply and distribution agency, to disconnect the electricity connection of the defaulting industry. We therefore hereby further direct, that in case the concerned State Pollution Control Boards make a recommendation to the concerned electrical supply and distribution agency/company, to disconnect electricity supply to an industry, for the reason that its primary effluent treatment plant is not functional, it shall honour such recommendation, and shall disconnect the electricity supply to such defaulting industrial concern, forthwith.5. Such an industrial concern, which has been disabled from carrying on its industrial activities, as has been indicated in the foregoing paragraph, is granted liberty to make its primary effluent treatment plant functional to the required capacity, and thereupon, seek a fresh "consent to operate" from the concerned Pollution Control Board. Only after the receipt of such fresh "consent to operate", the industrial activities of the disabled industry, can be permitted to be resumed. In carrying out the above exercise, we consider it just and appropriate to require, the Pollution Control Boards to carry out inspections, by prioritizing inspections of severely and critically polluted industries, so that visible results emerge at the earliest.Having effectuated the directions recorded in the foregoing paragraphs, the next step would be, to set up common effluent treatment plants. We are informed, that for the aforesaid purpose, the financial contribution of the Central Government is to the extent of 50 per cent, that of the concerned State Government (including the concerned Union Territory) is 25 per cent. The balance 25 per cent, is to be arranged by way of loans from banks. The above loans, are to be repaid, by the industrial areas, and/or industrial clusters. We are also informed, that the setting up of a common effluent treatment plant, would ordinarily take approximately two years (in cases where the process has yet to be commenced). The reason for the above prolonged period, for setting up "common effluent treatment plants", according to learned counsel, is not only financial, but also, the requirement of land acquisition, for the same.8. In view of the fact, that the financial position has been taken care of, as has been expressed above, we are of the view, that the setting up of "common effluent treatment plants", should be taken up as an urgent mission. With reference to common effluent treatment plants, which are already under implementation, we hope and expect, that they would be completed within the time lines already postulated. With reference to common effluent treatment plants, which are yet to be set up, we consider it just and appropriate to direct, the concerned State Governments (including, the concerned Union Territories) to complete the same within a period of three years, from today. We are also of the view, that while acquiring land for the common effluent treatment plants, the concerned State Governments (including, the concerned Union Territories) will acquire such additional land, as may be required for setting up "zero liquid discharge plants", if and when required in the future.9. During the course of hearing, we were informed by learned counsel, that the running of common effluent treatment plants, which are in place, is also a matter of serious concern. In this behalf, it was submitted, that some of the common effluent treatment plants are dis-functional, because of lack of finances, whilst some others are dis-functional, because of the requirement of repairs, which have not been carried out, again because of lack of financial resources.10. Given the responsibility vested in Municipalities under Article 243W of the Constitution, as also, in item 6 of the 12th Schedule, wherein the aforesaid obligation, pointedly extends to "public health, sanitation conservancy and solid waste management", we are of the view, that the onus to operate the existing common effluent treatment plants, rests on municipalities (and/or local bodies). Given the aforesaid responsibility, the concerned municipalities (and/or local bodies), cannot be permitted to shy away, from discharging this onerous duty. In case there are further financial constraints, the remedy lies in Articles 243X and 243Y of the Constitution. It will be open to the concerned municipalities(and/or local bodies), to evolve norms to recover funds, for the purpose of generating finances to install and run, all the "common effluent treatment plants", within the purview of the provisions referred to hereinabove. Needless to mention, that such norms as may be evolved for generating financial resources, may include all or any, of the commercial, industrial and domestic beneficiaries, of the facility. The process of evolving the above norms, shall be supervised by the concerned State Government (Union Territory), through the Secretaries, Urban Development and Local Bodies respectively, (depending on the location of the respective common effluent treatment plant). The norms for generating funds, for setting up and/or operating the common effluent treatment plant shall be finalized, on or before 31.03.2017, so as to be implemented with effect from the next financial year. In case, such norms are not in place, before the commencement of the next financial year, the concerned State Governments (or the Union Territories), shall cater to the financial requirements, of running the "common effluent treatment plants", which are presently dis-functional, from their own financial resources.11. Just in the manner suggested hereinabove, for the purpose of setting up of "common effluent treatment plants", the concerned State Governments (including, the concerned Union Territories) will prioritize such cities, towns and villages, which discharge industrial pollutants and sewer, directly into rivers and water bodies.12. We are of the view, that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We therefore hereby direct, that sewage treatment plants shall also be set up and made functional, within the time lines and the format, expressed hereinabove.13. We are of the view, that mere directions are inconsequential, unless a rigid implementation mechanism is laid down. We therefore hereby provide, that the directions pertaining to continuation of industrial activity only when there is in place a functional "primary effluent treatment plants", and the setting up of functional "common effluent treatment plants" within the time lines, expressed above, shall be of the Member Secretaries of the concerned Pollution Control Boards. The Secretary of the Department of Environment, of the concerned State Government (and the concerned Union Territory), shall be answerable in case of default. The concerned Secretaries to the Government shall be responsible of monitoring the progress, and issuing necessary directions to the concerned Pollution Control Board, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data, and shall furnish the same to the Bench of the jurisdictional National Green Tribunal. | 1 | 1,968 | 1,694 | ### 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:
is in default. On the receipt of any such complaint, the concerned Pollution Control Board, shall be obliged to verify the same, and take such action against the defaulting industry, as may be permissible in law. Such action, would be in addition to the discontinuation of industrial activity forthwith, in the manner directed hereinabove (but only after verification). 7. Having effectuated the directions recorded in the foregoing paragraphs, the next step would be, to set up common effluent treatment plants. We are informed, that for the aforesaid purpose, the financial contribution of the Central Government is to the extent of 50 per cent, that of the concerned State Government (including the concerned Union Territory) is 25 per cent. The balance 25 per cent, is to be arranged by way of loans from banks. The above loans, are to be repaid, by the industrial areas, and/or industrial clusters. We are also informed, that the setting up of a common effluent treatment plant, would ordinarily take approximately two years (in cases where the process has yet to be commenced). The reason for the above prolonged period, for setting up "common effluent treatment plants", according to learned counsel, is not only financial, but also, the requirement of land acquisition, for the same.8. In view of the fact, that the financial position has been taken care of, as has been expressed above, we are of the view, that the setting up of "common effluent treatment plants", should be taken up as an urgent mission. With reference to common effluent treatment plants, which are already under implementation, we hope and expect, that they would be completed within the time lines already postulated. With reference to common effluent treatment plants, which are yet to be set up, we consider it just and appropriate to direct, the concerned State Governments (including, the concerned Union Territories) to complete the same within a period of three years, from today. We are also of the view, that while acquiring land for the common effluent treatment plants, the concerned State Governments (including, the concerned Union Territories) will acquire such additional land, as may be required for setting up "zero liquid discharge plants", if and when required in the future.9. During the course of hearing, we were informed by learned counsel, that the running of common effluent treatment plants, which are in place, is also a matter of serious concern. In this behalf, it was submitted, that some of the common effluent treatment plants are dis-functional, because of lack of finances, whilst some others are dis-functional, because of the requirement of repairs, which have not been carried out, again because of lack of financial resources.10. Given the responsibility vested in Municipalities under Article 243W of the Constitution, as also, in item 6 of the 12th Schedule, wherein the aforesaid obligation, pointedly extends to "public health, sanitation conservancy and solid waste management", we are of the view, that the onus to operate the existing common effluent treatment plants, rests on municipalities (and/or local bodies). Given the aforesaid responsibility, the concerned municipalities (and/or local bodies), cannot be permitted to shy away, from discharging this onerous duty. In case there are further financial constraints, the remedy lies in Articles 243X and 243Y of the Constitution. It will be open to the concerned municipalities(and/or local bodies), to evolve norms to recover funds, for the purpose of generating finances to install and run, all the "common effluent treatment plants", within the purview of the provisions referred to hereinabove. Needless to mention, that such norms as may be evolved for generating financial resources, may include all or any, of the commercial, industrial and domestic beneficiaries, of the facility. The process of evolving the above norms, shall be supervised by the concerned State Government (Union Territory), through the Secretaries, Urban Development and Local Bodies respectively, (depending on the location of the respective common effluent treatment plant). The norms for generating funds, for setting up and/or operating the common effluent treatment plant shall be finalized, on or before 31.03.2017, so as to be implemented with effect from the next financial year. In case, such norms are not in place, before the commencement of the next financial year, the concerned State Governments (or the Union Territories), shall cater to the financial requirements, of running the "common effluent treatment plants", which are presently dis-functional, from their own financial resources.11. Just in the manner suggested hereinabove, for the purpose of setting up of "common effluent treatment plants", the concerned State Governments (including, the concerned Union Territories) will prioritize such cities, towns and villages, which discharge industrial pollutants and sewer, directly into rivers and water bodies.12. We are of the view, that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We therefore hereby direct, that sewage treatment plants shall also be set up and made functional, within the time lines and the format, expressed hereinabove.13. We are of the view, that mere directions are inconsequential, unless a rigid implementation mechanism is laid down. We therefore hereby provide, that the directions pertaining to continuation of industrial activity only when there is in place a functional "primary effluent treatment plants", and the setting up of functional "common effluent treatment plants" within the time lines, expressed above, shall be of the Member Secretaries of the concerned Pollution Control Boards. The Secretary of the Department of Environment, of the concerned State Government (and the concerned Union Territory), shall be answerable in case of default. The concerned Secretaries to the Government shall be responsible of monitoring the progress, and issuing necessary directions to the concerned Pollution Control Board, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data, and shall furnish the same to the Bench of the jurisdictional National Green Tribunal.
### Response:
1
### Explanation:
the receipt of such fresh "consent to operate", the industrial activities of the disabled industry, can be permitted to be resumed. In carrying out the above exercise, we consider it just and appropriate to require, the Pollution Control Boards to carry out inspections, by prioritizing inspections of severely and critically polluted industries, so that visible results emerge at the earliest.Having effectuated the directions recorded in the foregoing paragraphs, the next step would be, to set up common effluent treatment plants. We are informed, that for the aforesaid purpose, the financial contribution of the Central Government is to the extent of 50 per cent, that of the concerned State Government (including the concerned Union Territory) is 25 per cent. The balance 25 per cent, is to be arranged by way of loans from banks. The above loans, are to be repaid, by the industrial areas, and/or industrial clusters. We are also informed, that the setting up of a common effluent treatment plant, would ordinarily take approximately two years (in cases where the process has yet to be commenced). The reason for the above prolonged period, for setting up "common effluent treatment plants", according to learned counsel, is not only financial, but also, the requirement of land acquisition, for the same.8. In view of the fact, that the financial position has been taken care of, as has been expressed above, we are of the view, that the setting up of "common effluent treatment plants", should be taken up as an urgent mission. With reference to common effluent treatment plants, which are already under implementation, we hope and expect, that they would be completed within the time lines already postulated. With reference to common effluent treatment plants, which are yet to be set up, we consider it just and appropriate to direct, the concerned State Governments (including, the concerned Union Territories) to complete the same within a period of three years, from today. We are also of the view, that while acquiring land for the common effluent treatment plants, the concerned State Governments (including, the concerned Union Territories) will acquire such additional land, as may be required for setting up "zero liquid discharge plants", if and when required in the future.9. During the course of hearing, we were informed by learned counsel, that the running of common effluent treatment plants, which are in place, is also a matter of serious concern. In this behalf, it was submitted, that some of the common effluent treatment plants are dis-functional, because of lack of finances, whilst some others are dis-functional, because of the requirement of repairs, which have not been carried out, again because of lack of financial resources.10. Given the responsibility vested in Municipalities under Article 243W of the Constitution, as also, in item 6 of the 12th Schedule, wherein the aforesaid obligation, pointedly extends to "public health, sanitation conservancy and solid waste management", we are of the view, that the onus to operate the existing common effluent treatment plants, rests on municipalities (and/or local bodies). Given the aforesaid responsibility, the concerned municipalities (and/or local bodies), cannot be permitted to shy away, from discharging this onerous duty. In case there are further financial constraints, the remedy lies in Articles 243X and 243Y of the Constitution. It will be open to the concerned municipalities(and/or local bodies), to evolve norms to recover funds, for the purpose of generating finances to install and run, all the "common effluent treatment plants", within the purview of the provisions referred to hereinabove. Needless to mention, that such norms as may be evolved for generating financial resources, may include all or any, of the commercial, industrial and domestic beneficiaries, of the facility. The process of evolving the above norms, shall be supervised by the concerned State Government (Union Territory), through the Secretaries, Urban Development and Local Bodies respectively, (depending on the location of the respective common effluent treatment plant). The norms for generating funds, for setting up and/or operating the common effluent treatment plant shall be finalized, on or before 31.03.2017, so as to be implemented with effect from the next financial year. In case, such norms are not in place, before the commencement of the next financial year, the concerned State Governments (or the Union Territories), shall cater to the financial requirements, of running the "common effluent treatment plants", which are presently dis-functional, from their own financial resources.11. Just in the manner suggested hereinabove, for the purpose of setting up of "common effluent treatment plants", the concerned State Governments (including, the concerned Union Territories) will prioritize such cities, towns and villages, which discharge industrial pollutants and sewer, directly into rivers and water bodies.12. We are of the view, that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We therefore hereby direct, that sewage treatment plants shall also be set up and made functional, within the time lines and the format, expressed hereinabove.13. We are of the view, that mere directions are inconsequential, unless a rigid implementation mechanism is laid down. We therefore hereby provide, that the directions pertaining to continuation of industrial activity only when there is in place a functional "primary effluent treatment plants", and the setting up of functional "common effluent treatment plants" within the time lines, expressed above, shall be of the Member Secretaries of the concerned Pollution Control Boards. The Secretary of the Department of Environment, of the concerned State Government (and the concerned Union Territory), shall be answerable in case of default. The concerned Secretaries to the Government shall be responsible of monitoring the progress, and issuing necessary directions to the concerned Pollution Control Board, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data, and shall furnish the same to the Bench of the jurisdictional National Green Tribunal.
|
J.Ashoka Vs. University of Agricultural Sciences and Ors | the list of selected candidates recommended by the Selection Committee, it can do so only by recording reasons as to why the case of the person placed above is being overlooked and the person below is considered the best for being appointed. In the present case, no reasons have been recorded, may be for the reason the Board considered that it was unnecessary as stated by the learned Counsel. He however submitted that the Board of Regents has stated that respondent-2 is more suitable than the petitioner. That is the conclusion and not the reason. That conclusion must be preceded by the reason which is wanting in this case."17. As per the impugned notification, the requisite qualification for the post of Assistant Professor was Second Class Masters Degree in the concerned subject. The appellant possessed the requisite qualification to be eligible for the said post. However, the Board of Regents, considered Respondent No. 3 herein as the suitable candidate considering her qualification (Ph.D), continuous service as an Assistant Professor and also on humanitarian grounds. Whenever a selection is to be made on the basis of merit performance, it cannot be for the purpose of eliminating all others preventing thereby even an effective and comparative consideration on merits, by according en bloc precedence in favour of those in possession of additional qualification irrespective of the respective merits and demerits of all candidates to be considered. There is no escape for anyone from this ordeal and claim for any en bloc favoured treatment merely because, any one of them happened to possess an additional qualification than the relevant basic/general qualification essential for applying the post. It would amount to first exhausting in the matter of selection all those, dehors their inter se merit performance, in possession of additional qualification and take only thereafter separately those with ordinary degree and who do not possess the additional qualification. Conclusion: 18. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We, therefore, are of the considered opinion that the relevant provisions of the Statute were fully complied with. 19. In our considered view, Clause (2) of Statute 30 must be read in consonance with Articles 14 and 16(1) of the Constitution, for the reasons, the University is covered under the definition of State given under the Articles. Hence, when under Clause (2) of Statute 30, the Selection Committee constituted for making selection on the basis of the performance of the candidates at the interview recommends the names in the order of merit, the power of the Board of Regents to choose best among them means normally it should proceed in the order of merit as arranged by the Selection Committee, and if it is of the view that any person placed lower is the best, it can do so, but it has to record reasons for doing the same. But if a person placed below is appointed without assigning any reasons or on irrelevant considerations, there is no other alternative than to hold that such a selection and appointment is arbitrary and violative of Articles 14 and 16(1) of the Constitution. 20. The Board has power to select the best candidate as per the provisions of the Statute and in the case at hand, the Board re-considered the matter on 27.03.1999 and assigned cogent reasons as to why Respondent No. 3 was preferred. Though learned senior counsel for the appellant very much relied upon P.M. Latha (supra), we are of the considered opinion that the above case does not have any bearing on the decision of this case. Respondent No. 3 possesses the qualifying post graduate degree coupled with additional qualification of Ph.D. in the same subject. The instant selection is for the post of Assistant Professor of Sericulture. If deeper knowledge of the subject, coupled with possessing the qualifying degree as prescribed in the notification inviting application, is possessed by a candidate and if the Board takes into consideration all these factors including the qualification of Doctorate in the said subject, it cannot be said that the Appointing Authority has taken irrelevant materials into consideration. 21. Whenever the Board of Regents considers a person placed lower in merit in the list of selected candidates recommended by the Selection Committee, it can do so only by recording reasons as to why the case of the person placed above is being overlooked and the person below is considered the best for being appointed. In the present case, adequate reasons have been recorded by the Board, viz., her qualification, length of regular service as Assistant Professor and humanitarian grounds. The competence and merit of a candidate is adjudged not on the basis of the qualification he/she possesses but also taking into account the other necessary factors like career of the candidate, his educational curriculum, experience in the field, his general aptitude, personality of the candidate and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. 22. It was also brought to the notice of this Court that the present appellant is at present working on a regular post of Assistant Professor in some other University whereas Respondent No. 3 would be put to undue hardship if she would discontinue from the post. In this view of the matter, we are of the considered opinion that the action of the Board in selecting the third respondent is strictly in accordance with the relevant Statutes framed by the University and the Board had exercised its power judiciously by assigning cogent reasons as to why the third respondent was preferred. | 0[ds]18. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We, therefore, are of the considered opinion that the relevant provisions of the Statute were fully complied with.In our considered view, Clause (2) of Statute 30 must be read in consonance with Articles 14 and 16(1) of the Constitution, for the reasons, the University is covered under the definition of State given under the Articles. Hence, when under Clause (2) of Statute 30, the Selection Committee constituted for making selection on the basis of the performance of the candidates at the interview recommends the names in the order of merit, the power of the Board of Regents to choose best among them means normally it should proceed in the order of merit as arranged by the Selection Committee, and if it is of the view that any person placed lower is the best, it can do so, but it has to record reasons for doing the same. But if a person placed below is appointed without assigning any reasons or on irrelevant considerations, there is no other alternative than to hold that such a selection and appointment is arbitrary and violative of Articles 14 and 16(1) of the Constitution.The Board has power to select the best candidate as per the provisions of the Statute and in the case at hand, the Board re-considered the matter on 27.03.1999 and assigned cogent reasons as to why Respondent No. 3 was preferred. Though learned senior counsel for the appellant very much relied upon P.M. Latha (supra), we are of the considered opinion that the above case does not have any bearing on the decision of this case. Respondent No. 3 possesses the qualifying post graduate degree coupled with additional qualification of Ph.D. in the same subject. The instant selection is for the post of Assistant Professor of Sericulture. If deeper knowledge of the subject, coupled with possessing the qualifying degree as prescribed in the notification inviting application, is possessed by a candidate and if the Board takes into consideration all these factors including the qualification of Doctorate in the said subject, it cannot be said that the Appointing Authority has taken irrelevant materials into consideration.Whenever the Board of Regents considers a person placed lower in merit in the list of selected candidates recommended by the Selection Committee, it can do so only by recording reasons as to why the case of the person placed above is being overlooked and the person below is considered the best for being appointed. In the present case, adequate reasons have been recorded by the Board, viz., her qualification, length of regular service as Assistant Professor and humanitarian grounds. The competence and merit of a candidate is adjudged not on the basis of the qualification he/she possesses but also taking into account the other necessary factors like career of the candidate, his educational curriculum, experience in the field, his general aptitude, personality of the candidate and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held.It was also brought to the notice of this Court that the present appellant is at present working on a regular post of Assistant Professor in some other University whereas Respondent No. 3 would be put to undue hardship if she would discontinue from the post. In this view of the matter, we are of the considered opinion that the action of the Board in selecting the third respondent is strictly in accordance with the relevant Statutes framed by the University and the Board had exercised its power judiciously by assigning cogent reasons as to why the third respondent was | 0 | 5,783 | 737 | ### 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:
the list of selected candidates recommended by the Selection Committee, it can do so only by recording reasons as to why the case of the person placed above is being overlooked and the person below is considered the best for being appointed. In the present case, no reasons have been recorded, may be for the reason the Board considered that it was unnecessary as stated by the learned Counsel. He however submitted that the Board of Regents has stated that respondent-2 is more suitable than the petitioner. That is the conclusion and not the reason. That conclusion must be preceded by the reason which is wanting in this case."17. As per the impugned notification, the requisite qualification for the post of Assistant Professor was Second Class Masters Degree in the concerned subject. The appellant possessed the requisite qualification to be eligible for the said post. However, the Board of Regents, considered Respondent No. 3 herein as the suitable candidate considering her qualification (Ph.D), continuous service as an Assistant Professor and also on humanitarian grounds. Whenever a selection is to be made on the basis of merit performance, it cannot be for the purpose of eliminating all others preventing thereby even an effective and comparative consideration on merits, by according en bloc precedence in favour of those in possession of additional qualification irrespective of the respective merits and demerits of all candidates to be considered. There is no escape for anyone from this ordeal and claim for any en bloc favoured treatment merely because, any one of them happened to possess an additional qualification than the relevant basic/general qualification essential for applying the post. It would amount to first exhausting in the matter of selection all those, dehors their inter se merit performance, in possession of additional qualification and take only thereafter separately those with ordinary degree and who do not possess the additional qualification. Conclusion: 18. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We, therefore, are of the considered opinion that the relevant provisions of the Statute were fully complied with. 19. In our considered view, Clause (2) of Statute 30 must be read in consonance with Articles 14 and 16(1) of the Constitution, for the reasons, the University is covered under the definition of State given under the Articles. Hence, when under Clause (2) of Statute 30, the Selection Committee constituted for making selection on the basis of the performance of the candidates at the interview recommends the names in the order of merit, the power of the Board of Regents to choose best among them means normally it should proceed in the order of merit as arranged by the Selection Committee, and if it is of the view that any person placed lower is the best, it can do so, but it has to record reasons for doing the same. But if a person placed below is appointed without assigning any reasons or on irrelevant considerations, there is no other alternative than to hold that such a selection and appointment is arbitrary and violative of Articles 14 and 16(1) of the Constitution. 20. The Board has power to select the best candidate as per the provisions of the Statute and in the case at hand, the Board re-considered the matter on 27.03.1999 and assigned cogent reasons as to why Respondent No. 3 was preferred. Though learned senior counsel for the appellant very much relied upon P.M. Latha (supra), we are of the considered opinion that the above case does not have any bearing on the decision of this case. Respondent No. 3 possesses the qualifying post graduate degree coupled with additional qualification of Ph.D. in the same subject. The instant selection is for the post of Assistant Professor of Sericulture. If deeper knowledge of the subject, coupled with possessing the qualifying degree as prescribed in the notification inviting application, is possessed by a candidate and if the Board takes into consideration all these factors including the qualification of Doctorate in the said subject, it cannot be said that the Appointing Authority has taken irrelevant materials into consideration. 21. Whenever the Board of Regents considers a person placed lower in merit in the list of selected candidates recommended by the Selection Committee, it can do so only by recording reasons as to why the case of the person placed above is being overlooked and the person below is considered the best for being appointed. In the present case, adequate reasons have been recorded by the Board, viz., her qualification, length of regular service as Assistant Professor and humanitarian grounds. The competence and merit of a candidate is adjudged not on the basis of the qualification he/she possesses but also taking into account the other necessary factors like career of the candidate, his educational curriculum, experience in the field, his general aptitude, personality of the candidate and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. 22. It was also brought to the notice of this Court that the present appellant is at present working on a regular post of Assistant Professor in some other University whereas Respondent No. 3 would be put to undue hardship if she would discontinue from the post. In this view of the matter, we are of the considered opinion that the action of the Board in selecting the third respondent is strictly in accordance with the relevant Statutes framed by the University and the Board had exercised its power judiciously by assigning cogent reasons as to why the third respondent was preferred.
### Response:
0
### Explanation:
18. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We, therefore, are of the considered opinion that the relevant provisions of the Statute were fully complied with.In our considered view, Clause (2) of Statute 30 must be read in consonance with Articles 14 and 16(1) of the Constitution, for the reasons, the University is covered under the definition of State given under the Articles. Hence, when under Clause (2) of Statute 30, the Selection Committee constituted for making selection on the basis of the performance of the candidates at the interview recommends the names in the order of merit, the power of the Board of Regents to choose best among them means normally it should proceed in the order of merit as arranged by the Selection Committee, and if it is of the view that any person placed lower is the best, it can do so, but it has to record reasons for doing the same. But if a person placed below is appointed without assigning any reasons or on irrelevant considerations, there is no other alternative than to hold that such a selection and appointment is arbitrary and violative of Articles 14 and 16(1) of the Constitution.The Board has power to select the best candidate as per the provisions of the Statute and in the case at hand, the Board re-considered the matter on 27.03.1999 and assigned cogent reasons as to why Respondent No. 3 was preferred. Though learned senior counsel for the appellant very much relied upon P.M. Latha (supra), we are of the considered opinion that the above case does not have any bearing on the decision of this case. Respondent No. 3 possesses the qualifying post graduate degree coupled with additional qualification of Ph.D. in the same subject. The instant selection is for the post of Assistant Professor of Sericulture. If deeper knowledge of the subject, coupled with possessing the qualifying degree as prescribed in the notification inviting application, is possessed by a candidate and if the Board takes into consideration all these factors including the qualification of Doctorate in the said subject, it cannot be said that the Appointing Authority has taken irrelevant materials into consideration.Whenever the Board of Regents considers a person placed lower in merit in the list of selected candidates recommended by the Selection Committee, it can do so only by recording reasons as to why the case of the person placed above is being overlooked and the person below is considered the best for being appointed. In the present case, adequate reasons have been recorded by the Board, viz., her qualification, length of regular service as Assistant Professor and humanitarian grounds. The competence and merit of a candidate is adjudged not on the basis of the qualification he/she possesses but also taking into account the other necessary factors like career of the candidate, his educational curriculum, experience in the field, his general aptitude, personality of the candidate and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held.It was also brought to the notice of this Court that the present appellant is at present working on a regular post of Assistant Professor in some other University whereas Respondent No. 3 would be put to undue hardship if she would discontinue from the post. In this view of the matter, we are of the considered opinion that the action of the Board in selecting the third respondent is strictly in accordance with the relevant Statutes framed by the University and the Board had exercised its power judiciously by assigning cogent reasons as to why the third respondent was
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Commissioner Of Income-Tax, Bihar Vs. Dalmia Investment Co. Ltd | of 1948 D/- 23-3-1949 (Bom) the assessee held certain ordinary shares of the face value of Rs. 100/- in Ambica Mills Ltd. and Arvind Mills Ltd. These two companies then declared a bonus and issued preference shares in the proportion of two to one of the face value of Rs. 100/- each. These preference shares were sold by the assessee and if the face value was taken as the cost, there was a small profit. The Department contended that the entire sale proceeds were liable to be taxed, because the assessee had paid nothing for the bonus shares and everything received by it was profit. The assessees view was that the cost was equal to the face value of the shares. The High Court rejected both these contentions and held that the cost of the shares previously held must be divided between those shares and the bonus shares in the same proportion as their face value, and the profit or loss should then be found out by comparing the cost price calculated on this basis with the sale price. In our opinion, there is difficulty in the High Courts decision. The preference shares and the ordinary shares could hardly be valued in the proportion of their face value. The ordinary shares and the preference shares do not rank pari passu.31. The next case is 1956-29 ITR 814 : (AIR 1956 Bom 284 ). In that case, the assessee had, at the beginning of the year, 350 shares of which 50 shares were bonus shares and all were of the face value of Rs. 250/- each. The assessee sold 300 shares and claimed a loss of Rs. 35,801/- by valuing the bonus shares at face value. The department arrived at a loss of Rs. 27,766/- by the method of averaging the cost, following the earlier case of the Bombay High Court just referred to. The Tribunal suggested a third method. It ignored the 50 shares and the loss was calculated by considering the cost of 300 shares and their sale price. The loss worked out at Rs. 27,748/- but the Tribunal did not disturb the order of the Appellate Assistant Commissioner in view of the small difference. The High Court held that the method adopted by the Department was proper but this Court, on appeal,*held that in that case the method adopted by the Tribunal was correct. This Court did not decide which of the four methods was the proper one to apply, leaving that question open. The reason was that the assessee originally held 50 shares in 1950; in 1951, it received 50 bonus shares. It sold its original holding three days later and then purchased another 100 shares after two months. In the financial year 1950-51 (assessment year 1951-52), the Income-tax Officer averaged the price of 150 shares and found a profit of Rs. 1060/- on the sale of 50 shares instead of a loss of Rs. 1365/- which was claimed. The assessee did not appeal. In the financial year 1951-52 (assessment year 1952-53) the assessee started with 150 shares (100 purchased and 50 bonus). It then purchased 200 shares in two lots and sold 300 shares, leaving 50 shares. The assessee company claimed a loss of Rs. 35,801/-. The Income-tax Officer computed the loss at Rs. 27,766/- and the Tribunal computed the loss at Rs. 27,748/-. The Tribunal, however did not disturb the loss as computed by the Income-tax Officer in view of the slender difference of Rs. 18/-. The High Courts decision was reversed by this Court because the High Court ignored all intermediate transactions and averaged the 300 shares with the 50 bonus shares. The shares in respect of which the bonus shares were issued were already averaged with the bonus shares. This was not a case of bonus shares issued in the year of account. It involved purchase and sale of some of the shares. The average cost price of the original and bonus shares was already fixed in an earlier year by the Department and this fact should have been taken into account. No doubt, Chagla, C. J., observed that it was not known which of the several shares were sold in the year of account, but in the statement of the case it was clearly stated that bonus shares were untouched.*(1959) 36 ITR 257 (SC)32. The decision of this Court in Emerald Companys case,*however, lends support to the view which we have expressed here. The bonus shares can be valued by spreading the cost of the old shares over the old shares and the new issue taken together, if the shares rank pari passu. When they do not, the price may have to be adjusted either in the proportion of the face value they bear (if there is no other circumstances differentiating them) or on equitable considerations based on the market price before and after the issue.*(1959) 36 ITR 257 (SC)33. Applying the principles to the present case, the cost of 31,909 shares, namely, Rs. 5,83,210/- must be spread over those shares and the 31,909 bonus shares taken together. The cost price of the bonus shares therefore was Rs. 2,92,141/- because the bonus shares were to rank equal to the original shares. The account would thus stand as follows :Shares in Rohtas Industries Ltd.1. Old issue of 17,259 shares brought forward from 1945, at (proportionate cost ... ... ... Rs. 1,58,0352. Bonus shares 31,909 received in 1945, at (proportionate spread out) cost ... ... ... Rs. 2,92,1413. New issue 59,079 shares brought forward from 1945... ... ... Rs. 8,88,5614. New purchases 2,500 shares brought forward from 1947 ... Rs. 39,300Total 1,10,747 shares ... Rs. 13,78,037Sales of all the above shares in 1948 ... ... ... Rs. 15,50,458Profit ... ... Rs. 7,444Profit to be added to the income returned ... ... ... Rs. 1,79,865Sales of all the above shares in 1948 ... ... ... Rs. 15,50,458 Profit ... ... Rs. 7,444 Profit to be added to the income returned ... ... ... Rs. 1,79,865 | 1[ds]21. A limited liability company must state in its memorandum of association the amount of capital with which the company desires to do business and the number of shares into which that capital is to be divided. The company need not issue all its capital at the same time. It may issue only a part of its capital initially and issue more of the unissued capital on a later date. After the company does business and profits result, it may distribute the profits or keep them in reserve. When it does the latter, it does not keep the money in its coffers; the money is used in the business and really represents an increase in the capital employed. When the reserves increase to a considerable extent, the issued capital of the company ceases to bear a true relation to the capital employed. The company may then decide to increase its issued capital and declare a bonus and issue to the shareholders in lieu of bonus certificates entitling them to an additional share in the increased capital. As a matter of accounting the original shares in a winding up before the increase of issued capital would have yielded to the shareholder the same return as the old shares and the new shares taken together. What was previously owned by the shareholder by virtue of the original certificates is after the issue of bonus shares, held by them on the basis of more certificates. In point of fact, however, what the shareholder gets is not cash but property from which income in the shape of money may be derived in future. In this sense, there is no payment to him but an increase of issued capital and the right of the shareholder to it is evidenced not by the original number of certificates held by him but by more certificates. There is thus no payment of dividend. A dividend in the strict sense means a share in the profits and a share in the profits can only be said to be paid to the shareholder when a part of the profits is released to him in cash and the company pays that amount and the shareholder takes it away. The conversion of the reserves into capital does not involve the release of the profits to the shareholder; the money remains where it was, that is to say, employed in the business. Thereafter the company employs that money not as reserves of profits, but as its proper capital issued to and contributed by the shareholder. If the shareholder were to sell his bonus shares, as shareholders often do, the shareholder parts with the right to participation in the capital of the company, and the cash he receives is not dividend but the price of that right. The bonus share when sold may fetch more or may fetch less than the face value and this shows that the certificate is not a voucher to receive the amount mentioned on its face. To regard the certificate as cash or as representing cash paid by the shareholder is to overlook the internal process by which that certificate comes into being.tax Act defines "dividend" and also extends it in some directions but not so as to make the issue of bonus shares a release of reserves as profits so that they could be included in the term. The face value of the shares cannot therefore be taken to be dividend by reason of anything in the definition. The share certificate which is issued as bonus entitles the holder to a share in the assets of the company and to participate in future profits. As pointed out above, if sold, it may fetch either more or less. The market price is affected by many inponderables, one such being the yield or the expected yield. The detriment to the shareholder, if any, must therefore be calculated on some principle, but the method of computing the cost of bonus shares at their face value does not accord either with fact or businessfirst sight, it looks as if they are so but the impact of the issue of bonus shares has to be seen to realise that there is an immediate detriment to the shareholder in respect of his original holding. TheOfficer, in this case, has shown that in 1945 when the price of shares became stable it was Rs. 9/per share, while the value of the shares before the issue of bonus shares was Rs. 18/per share. In other words, by the issue of bonus shares pro rata, which ranked pari passu with the existing shares, the market price was exactly halved, and divided between the old and the bonus shares. This will ordinarily be the case but not when the shares do not rank pari passu and we shall deal with that case separately. When the shares rank pari passu the result may be stated by saying that what the shareholder held as a whole rupee coin is held by him, after the issue of bonus shares, in two 50 nP coins. The total value remains the same, but the evidence of that value is not in one certificate but in two. This was expressed forcefully by the Supreme Court of United States of America, quoting from an earlier case, in Eisner v. Macamber, (1919) 252 US 189 : 64 Law EdIt follows that the bonus shares cannot be said to have cost nothing to the shareholder because on the issue of the bonus shares, there is an instant loss to him in the value of his original holding. The earning capacity of the capital employed remains the same, even after the reserve is converted into bonus shares. By the issue of the bonus shares there is a corresponding fall in the dividends actual or expected and the market price moves accordingly. The method of calculation which places the value of bonus shares at nil cannot be correct.29. This leaves for consideration the other two methods. Here we may point out that the new shares may rank pari passu with old shares or may be different. The method of cost accounting may have to be different in each case but in essence and principle there is no difference. One possible method is to ascertain the exact fall in the market price of the shares already held and attribute that fall to the price of the bonus shares. This market price must be the middle price and not as represented by any unusual fluctuation. The other method is to take the amount spent by the shareholder in acquiring his original shares and to spread it over the old and new shares treating the new as accretions to the old and to treat the cost price of the old shares and bonus shares taken together. This method is suggested by the Department in this case. Since the bonus shares in this case rank pari passu with the old shares there is no difficulty in spreading the original cost over the old and the new shares and the contention of the Department in this case is right. But this is not the end of the present discussion. This simple method may present difficulties when the shares do not rank pari passu or are of a different kind. In such cases, it may be necessary to compare the resultant price of the two kinds of shares in the market to arrive at a proper cost valuation. In other words, if the shares do not rank pari passu, assistance may have to be taken of other evidence to fix the cost price of the bonus shares. It may then be necessary to examine the result as reflected in the market to determine the equitable cost. In England paragraph 10 of Schedule Tax to the Finance Act 1962 provides for such matters and for valuing rights issue but we are not concerned with these matters and need not express an opinion.30. It remains to refer to three cases to which we have already referred in passing and on which some reliance was placed. In IT Ref. No. 16 of 1948 D/- 23-3-1949 (Bom) the assessee held certain ordinary shares of the face value of Rs. 100/- in Ambica Mills Ltd. and Arvind Mills Ltd. These two companies then declared a bonus and issued preference shares in the proportion of two to one of the face value of Rs. 100/- each. These preference shares were sold by the assessee and if the face value was taken as the cost, there was a small profit. The Department contended that the entire sale proceeds were liable to be taxed, because the assessee had paid nothing for the bonus shares and everything received by it was profit. The assessees view was that the cost was equal to the face value of the shares. The High Court rejected both these contentions and held that the cost of the shares previously held must be divided between those shares and the bonus shares in the same proportion as their face value, and the profit or loss should then be found out by comparing the cost price calculated on this basis with the sale price. In our opinion, there is difficulty in the High Courts decision. The preference shares and the ordinary shares could hardly be valued in the proportion of their face value. The ordinary shares and the preference shares do not rank pari passu.31. The next case is 1956-29 ITR 814 : (AIR 1956 Bom 284 ). In that case, the assessee had, at the beginning of the year, 350 shares of which 50 shares were bonus shares and all were of the face value of Rs. 250/- each. The assessee sold 300 shares and claimed a loss of Rs. 35,801/- by valuing the bonus shares at face value. The department arrived at a loss of Rs. 27,766/- by the method of averaging the cost, following the earlier case of the Bombay High Court just referred to. The Tribunal suggested a third method. It ignored the 50 shares and the loss was calculated by considering the cost of 300 shares and their sale price. The loss worked out at Rs. 27,748/- but the Tribunal did not disturb the order of the Appellate Assistant Commissioner in view of the small difference. The High Court held that the method adopted by the Department was proper but this Court, on appeal,*held that in that case the method adopted by the Tribunal was correct. This Court did not decide which of the four methods was the proper one to apply, leaving that question open. The reason was that the assessee originally held 50 shares in 1950; in 1951, it received 50 bonus shares. It sold its original holding three days later and then purchased another 100 shares after two months. In the financial year 1950-51 (assessment year 1951-52), the Income-tax Officer averaged the price of 150 shares and found a profit of Rs. 1060/- on the sale of 50 shares instead of a loss of Rs. 1365/- which was claimed. The assessee did not appeal. In the financial year 1951-52 (assessment year 1952-53) the assessee started with 150 shares (100 purchased and 50 bonus). It then purchased 200 shares in two lots and sold 300 shares, leaving 50 shares. The assessee company claimed a loss of Rs. 35,801/-. The Income-tax Officer computed the loss at Rs. 27,766/- and the Tribunal computed the loss at Rs. 27,748/-. The Tribunal, however did not disturb the loss as computed by the Income-tax Officer in view of the slender difference of Rs. 18/-. The High Courts decision was reversed by this Court because the High Court ignored all intermediate transactions and averaged the 300 shares with the 50 bonus shares. The shares in respect of which the bonus shares were issued were already averaged with the bonus shares. This was not a case of bonus shares issued in the year of account. It involved purchase and sale of some of the shares. The average cost price of the original and bonus shares was already fixed in an earlier year by the Department and this fact should have been taken into account. No doubt, Chagla, C. J., observed that it was not known which of the several shares were sold in the year of account, but in the statement of the case it was clearly stated that bonus shares were36 ITR 257 (SC)32. The decision of this Court in Emerald Companys case,*however, lends support to the view which we have expressed here. The bonus shares can be valued by spreading the cost of the old shares over the old shares and the new issue taken together, if the shares rank pari passu. When they do not, the price may have to be adjusted either in the proportion of the face value they bear (if there is no other circumstances differentiating them) or on equitable considerations based on the market price before and after the issue.*(1959) 36 ITR 257 (SC)33. Applying the principles to the present case, the cost of 31,909 shares, namely, Rs. 5,83,210/must be spread over those shares and the 31,909 bonus shares taken together. The cost price of the bonus shares therefore was Rs. 2,92,141/because the bonus shares were to rank equal to the original shares. The account would thus stand as follows :Shares in Rohtas Industries Ltd.1. Old issue of 17,259 shares brought forward from 1945, at (proportionate cost ... ... ... Rs. 1,58,0352. Bonus shares 31,909 received in 1945, at (proportionate spread out) cost ... ... ... Rs. 2,92,1413. New issue 59,079 shares brought forward from 1945... ... ... Rs. 8,88,5614. New purchases 2,500 shares brought forward from 1947 ... Rs. 39,300Total 1,10,747 shares ... Rs. 13,78,037Sales of all the above shares in 1948 ... ... ... Rs. 15,50,458Profit ... ... Rs. 7,444Profit to be added to the income returned ... ... ... Rs. 1,79,865Sales of all the above shares in 1948 ... ... ... Rs. 15,50,458 Profit ... ... Rs. 7,444 Profit to be added to the income returned ... ... ... Rs. 1,79,865 | 1 | 8,195 | 2,579 | ### 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:
of 1948 D/- 23-3-1949 (Bom) the assessee held certain ordinary shares of the face value of Rs. 100/- in Ambica Mills Ltd. and Arvind Mills Ltd. These two companies then declared a bonus and issued preference shares in the proportion of two to one of the face value of Rs. 100/- each. These preference shares were sold by the assessee and if the face value was taken as the cost, there was a small profit. The Department contended that the entire sale proceeds were liable to be taxed, because the assessee had paid nothing for the bonus shares and everything received by it was profit. The assessees view was that the cost was equal to the face value of the shares. The High Court rejected both these contentions and held that the cost of the shares previously held must be divided between those shares and the bonus shares in the same proportion as their face value, and the profit or loss should then be found out by comparing the cost price calculated on this basis with the sale price. In our opinion, there is difficulty in the High Courts decision. The preference shares and the ordinary shares could hardly be valued in the proportion of their face value. The ordinary shares and the preference shares do not rank pari passu.31. The next case is 1956-29 ITR 814 : (AIR 1956 Bom 284 ). In that case, the assessee had, at the beginning of the year, 350 shares of which 50 shares were bonus shares and all were of the face value of Rs. 250/- each. The assessee sold 300 shares and claimed a loss of Rs. 35,801/- by valuing the bonus shares at face value. The department arrived at a loss of Rs. 27,766/- by the method of averaging the cost, following the earlier case of the Bombay High Court just referred to. The Tribunal suggested a third method. It ignored the 50 shares and the loss was calculated by considering the cost of 300 shares and their sale price. The loss worked out at Rs. 27,748/- but the Tribunal did not disturb the order of the Appellate Assistant Commissioner in view of the small difference. The High Court held that the method adopted by the Department was proper but this Court, on appeal,*held that in that case the method adopted by the Tribunal was correct. This Court did not decide which of the four methods was the proper one to apply, leaving that question open. The reason was that the assessee originally held 50 shares in 1950; in 1951, it received 50 bonus shares. It sold its original holding three days later and then purchased another 100 shares after two months. In the financial year 1950-51 (assessment year 1951-52), the Income-tax Officer averaged the price of 150 shares and found a profit of Rs. 1060/- on the sale of 50 shares instead of a loss of Rs. 1365/- which was claimed. The assessee did not appeal. In the financial year 1951-52 (assessment year 1952-53) the assessee started with 150 shares (100 purchased and 50 bonus). It then purchased 200 shares in two lots and sold 300 shares, leaving 50 shares. The assessee company claimed a loss of Rs. 35,801/-. The Income-tax Officer computed the loss at Rs. 27,766/- and the Tribunal computed the loss at Rs. 27,748/-. The Tribunal, however did not disturb the loss as computed by the Income-tax Officer in view of the slender difference of Rs. 18/-. The High Courts decision was reversed by this Court because the High Court ignored all intermediate transactions and averaged the 300 shares with the 50 bonus shares. The shares in respect of which the bonus shares were issued were already averaged with the bonus shares. This was not a case of bonus shares issued in the year of account. It involved purchase and sale of some of the shares. The average cost price of the original and bonus shares was already fixed in an earlier year by the Department and this fact should have been taken into account. No doubt, Chagla, C. J., observed that it was not known which of the several shares were sold in the year of account, but in the statement of the case it was clearly stated that bonus shares were untouched.*(1959) 36 ITR 257 (SC)32. The decision of this Court in Emerald Companys case,*however, lends support to the view which we have expressed here. The bonus shares can be valued by spreading the cost of the old shares over the old shares and the new issue taken together, if the shares rank pari passu. When they do not, the price may have to be adjusted either in the proportion of the face value they bear (if there is no other circumstances differentiating them) or on equitable considerations based on the market price before and after the issue.*(1959) 36 ITR 257 (SC)33. Applying the principles to the present case, the cost of 31,909 shares, namely, Rs. 5,83,210/- must be spread over those shares and the 31,909 bonus shares taken together. The cost price of the bonus shares therefore was Rs. 2,92,141/- because the bonus shares were to rank equal to the original shares. The account would thus stand as follows :Shares in Rohtas Industries Ltd.1. Old issue of 17,259 shares brought forward from 1945, at (proportionate cost ... ... ... Rs. 1,58,0352. Bonus shares 31,909 received in 1945, at (proportionate spread out) cost ... ... ... Rs. 2,92,1413. New issue 59,079 shares brought forward from 1945... ... ... Rs. 8,88,5614. New purchases 2,500 shares brought forward from 1947 ... Rs. 39,300Total 1,10,747 shares ... Rs. 13,78,037Sales of all the above shares in 1948 ... ... ... Rs. 15,50,458Profit ... ... Rs. 7,444Profit to be added to the income returned ... ... ... Rs. 1,79,865Sales of all the above shares in 1948 ... ... ... Rs. 15,50,458 Profit ... ... Rs. 7,444 Profit to be added to the income returned ... ... ... Rs. 1,79,865
### Response:
1
### Explanation:
1948 D/- 23-3-1949 (Bom) the assessee held certain ordinary shares of the face value of Rs. 100/- in Ambica Mills Ltd. and Arvind Mills Ltd. These two companies then declared a bonus and issued preference shares in the proportion of two to one of the face value of Rs. 100/- each. These preference shares were sold by the assessee and if the face value was taken as the cost, there was a small profit. The Department contended that the entire sale proceeds were liable to be taxed, because the assessee had paid nothing for the bonus shares and everything received by it was profit. The assessees view was that the cost was equal to the face value of the shares. The High Court rejected both these contentions and held that the cost of the shares previously held must be divided between those shares and the bonus shares in the same proportion as their face value, and the profit or loss should then be found out by comparing the cost price calculated on this basis with the sale price. In our opinion, there is difficulty in the High Courts decision. The preference shares and the ordinary shares could hardly be valued in the proportion of their face value. The ordinary shares and the preference shares do not rank pari passu.31. The next case is 1956-29 ITR 814 : (AIR 1956 Bom 284 ). In that case, the assessee had, at the beginning of the year, 350 shares of which 50 shares were bonus shares and all were of the face value of Rs. 250/- each. The assessee sold 300 shares and claimed a loss of Rs. 35,801/- by valuing the bonus shares at face value. The department arrived at a loss of Rs. 27,766/- by the method of averaging the cost, following the earlier case of the Bombay High Court just referred to. The Tribunal suggested a third method. It ignored the 50 shares and the loss was calculated by considering the cost of 300 shares and their sale price. The loss worked out at Rs. 27,748/- but the Tribunal did not disturb the order of the Appellate Assistant Commissioner in view of the small difference. The High Court held that the method adopted by the Department was proper but this Court, on appeal,*held that in that case the method adopted by the Tribunal was correct. This Court did not decide which of the four methods was the proper one to apply, leaving that question open. The reason was that the assessee originally held 50 shares in 1950; in 1951, it received 50 bonus shares. It sold its original holding three days later and then purchased another 100 shares after two months. In the financial year 1950-51 (assessment year 1951-52), the Income-tax Officer averaged the price of 150 shares and found a profit of Rs. 1060/- on the sale of 50 shares instead of a loss of Rs. 1365/- which was claimed. The assessee did not appeal. In the financial year 1951-52 (assessment year 1952-53) the assessee started with 150 shares (100 purchased and 50 bonus). It then purchased 200 shares in two lots and sold 300 shares, leaving 50 shares. The assessee company claimed a loss of Rs. 35,801/-. The Income-tax Officer computed the loss at Rs. 27,766/- and the Tribunal computed the loss at Rs. 27,748/-. The Tribunal, however did not disturb the loss as computed by the Income-tax Officer in view of the slender difference of Rs. 18/-. The High Courts decision was reversed by this Court because the High Court ignored all intermediate transactions and averaged the 300 shares with the 50 bonus shares. The shares in respect of which the bonus shares were issued were already averaged with the bonus shares. This was not a case of bonus shares issued in the year of account. It involved purchase and sale of some of the shares. The average cost price of the original and bonus shares was already fixed in an earlier year by the Department and this fact should have been taken into account. No doubt, Chagla, C. J., observed that it was not known which of the several shares were sold in the year of account, but in the statement of the case it was clearly stated that bonus shares were36 ITR 257 (SC)32. The decision of this Court in Emerald Companys case,*however, lends support to the view which we have expressed here. The bonus shares can be valued by spreading the cost of the old shares over the old shares and the new issue taken together, if the shares rank pari passu. When they do not, the price may have to be adjusted either in the proportion of the face value they bear (if there is no other circumstances differentiating them) or on equitable considerations based on the market price before and after the issue.*(1959) 36 ITR 257 (SC)33. Applying the principles to the present case, the cost of 31,909 shares, namely, Rs. 5,83,210/must be spread over those shares and the 31,909 bonus shares taken together. The cost price of the bonus shares therefore was Rs. 2,92,141/because the bonus shares were to rank equal to the original shares. The account would thus stand as follows :Shares in Rohtas Industries Ltd.1. Old issue of 17,259 shares brought forward from 1945, at (proportionate cost ... ... ... Rs. 1,58,0352. Bonus shares 31,909 received in 1945, at (proportionate spread out) cost ... ... ... Rs. 2,92,1413. New issue 59,079 shares brought forward from 1945... ... ... Rs. 8,88,5614. New purchases 2,500 shares brought forward from 1947 ... Rs. 39,300Total 1,10,747 shares ... Rs. 13,78,037Sales of all the above shares in 1948 ... ... ... Rs. 15,50,458Profit ... ... Rs. 7,444Profit to be added to the income returned ... ... ... Rs. 1,79,865Sales of all the above shares in 1948 ... ... ... Rs. 15,50,458 Profit ... ... Rs. 7,444 Profit to be added to the income returned ... ... ... Rs. 1,79,865
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U.P. Co-op. Spinning Mills Fedn. Ltd. and Ors Vs. Amar Nath Dwivedi and Ors | 1. Respondent No. 1 was appointed on contractual basis on the post of a Training Officer in the U.P. Co-operative Spinning Mills Federation Limited vide letter of Appointment dated 07.09.1998. As per agreement, the contract of appointment was for a period of one year from 25.09.1998 to 24.09.1999, which stood terminated on 24.09.1999. After being relieved from service, the Respondent No. 1 filed the Civil Misc. Writ Petition No. 35625 of 2000 before the High Court of Allahabad which was dismissed on 17.01.2002. However, the order of the learned Single Judge was set aside by the Division Bench in Special Appeal No. 282 of 2002 vide order dated 05.07.2002 and the matter was remanded to the learned Single Judge for a fresh consideration. Thereafter, the learned Single Judge allowed the writ petition of the Respondent and reinstated him in service with back wages vide order dated 16.07.2002. It was held that the conditions in the appointment letter of the Respondent, treating the appointment as contractual was arbitrary. This view has been upheld by the Division Bench by the impugned judgment.2. While issuing notice on 20.11.2006, this Court stayed the operation of the impugned order which was continued while granting leave.3. We have heard learned Counsel for the parties.4. It is clear from the letter of appointment dated 07.09.1998 that the appointment of the Respondent was on contractual basis and in terms of Agreement dated 25.09.1988 the contract of appointment was for a period of one year which was never extended. | 1[ds]3. We have heard learned Counsel for the parties4. It is clear from the letter of appointment dated 07.09.1998 that the appointment of the Respondent was on contractual basis and in terms of Agreement dated 25.09.1988 the contract of appointment was for a period of one year which was never extended6. In view of above, the claim of the Respondent that he was in permanent employment of the U.P. Co-operative Spinning Mills Federation Limited and in that capacity he was on deputation falls to the ground. On that basis his entitlement to claim absorption in the State services cannot be sustained. | 1 | 274 | 113 | ### Instruction:
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1. Respondent No. 1 was appointed on contractual basis on the post of a Training Officer in the U.P. Co-operative Spinning Mills Federation Limited vide letter of Appointment dated 07.09.1998. As per agreement, the contract of appointment was for a period of one year from 25.09.1998 to 24.09.1999, which stood terminated on 24.09.1999. After being relieved from service, the Respondent No. 1 filed the Civil Misc. Writ Petition No. 35625 of 2000 before the High Court of Allahabad which was dismissed on 17.01.2002. However, the order of the learned Single Judge was set aside by the Division Bench in Special Appeal No. 282 of 2002 vide order dated 05.07.2002 and the matter was remanded to the learned Single Judge for a fresh consideration. Thereafter, the learned Single Judge allowed the writ petition of the Respondent and reinstated him in service with back wages vide order dated 16.07.2002. It was held that the conditions in the appointment letter of the Respondent, treating the appointment as contractual was arbitrary. This view has been upheld by the Division Bench by the impugned judgment.2. While issuing notice on 20.11.2006, this Court stayed the operation of the impugned order which was continued while granting leave.3. We have heard learned Counsel for the parties.4. It is clear from the letter of appointment dated 07.09.1998 that the appointment of the Respondent was on contractual basis and in terms of Agreement dated 25.09.1988 the contract of appointment was for a period of one year which was never extended.
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3. We have heard learned Counsel for the parties4. It is clear from the letter of appointment dated 07.09.1998 that the appointment of the Respondent was on contractual basis and in terms of Agreement dated 25.09.1988 the contract of appointment was for a period of one year which was never extended6. In view of above, the claim of the Respondent that he was in permanent employment of the U.P. Co-operative Spinning Mills Federation Limited and in that capacity he was on deputation falls to the ground. On that basis his entitlement to claim absorption in the State services cannot be sustained.
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Gopalakrishna Pillai & Others Vs. Meenakshi Ayal & Others | we are satisfied that the suit was for recovery of possession of immovable property and for mesne profits. The provisions of O. 20, R. 12 were therefore, attracted to the suit and the Court had power to pass a decree in the suit for both past and future mesne profits. 7. Order 20, R. 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of O. 7, Rr. 1 and 2 and O. 7, R. 7 of the Code of Civil Procedure and S. 7 (1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of O. 20, R. 12 apply. But in a suit to which the provisions of O. 20, R. 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief though, it is not specifically asked for in the plaint, see Basavayya v. Guruvayya, ILR (1952) Mad 173 at p. 177: (AIR 1951 Mad 938 at p. 940) (FB). In Fakharuddin Mahomed Ahsan v. Official Trustee of Bengal, (1882) ILR 8 Cal 178 at p. 189 (PC), Sir R. P. Collier observed : The plaint has been already read in the first case, and their Lordships are of opinion that it is at all events open to the construction that the plaintiff intended to claim wasilat up to the time of delivery of possession, although, for the purpose of valuation only, so much was valued as was then due; but be that as it may, they are of opinion that, under S. 196 of Act VIII of 1859, it was in the power of the Court if it thought fit, to make a decree which should give the plaintiff wasilat up to the date of obtaining possessions. Section 196 of Act VIII of 1859 empowered the Court in a suit for land or other property paying rent to pass a decree for mesne profits from the date of the suit until the date of delivery of possession to the decree-holder. The observations of the Privy Council suggest that in a suit to which S. 196 of Act VIII of 1859 applied, the Court had jurisdiction to pass a decree for mesne profits though there was no specific claim in the plaint for future, mesne profits. The Court has the like power to pass a decree directing an enquiry into future mesne profits in a suit to which the provisions of O. 20, R. 12 of the Code of Civil Procedure, 1908, apply. 8. In support of his contention that the Court has no jurisdiction to pass a decree for future mesne profits in the absence of a specific prayer for the same, counsel for the appellants relied upon the following passage in Mohd. Amin v. Vakil Ahmad, 1952 SCR 1133 at p. 1144: (AIR 1952 SC 858 at p. 362): It was however pointed out by Shri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto. We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to he deleted from the decree. In our opinion, this passage does not support counsels contention. This Court made those observations in a case where the plaint claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either past or future mesne profits or rent. It may be that in these circumstances, the suit was not one for the recovery of possession of immovable property and for rent or mesne profits, and the Court could not pass a decree for future mesne profits under O. 20, R. 12 of the Code of Civil Procedure. But where, as in this case, the suit is for the recovery of possession of immovable property and for past mesne profits, the Court has ample power to pass a decree directing an enquiry as to future mesne profits, though there is no specific prayer for the same in the plaint. In the aforesaid case, this Court did not lay down a contrary proposition and this was pointed out by Subba Rao, C. J., in Atchamma v. Rami Reddy, ILR 1957 Andh Pra 52 at p. 56: (AIR 1958 Andh Pra 517 at p. 519). 9. We are, therefore, satisfied that in this case the High Court had discretionary power to pass the decree for future mesne profits. It is not contended that the High Court exercised its discretion improperly or erroneously. We see no reason to interfere with the decree passed by the High Court. | 0[ds]4. The appellants case is that the will of Chinnayal, dated September 4, 1940, was attested by Balasubramania and Samiyappa. The appellants rely solely on the testimony of Samiyappa for proof of the execution and attestation of the will. Samiyappa was not present when Chinanayal is said to have put her thumb-impression on the will. Samiyappa said that when he was passing along the street, Balasubramania and Muthukumaraswami called him. He went inside Chinnayals house, Muthukumaraswami gave the will to him and after he read it aloud, Chinnayal acknowledged that she had affixed her thumb-impression on the will. He then put his signature on the will and Balasubramania completed it after he left. In his examination-in-chief, he said nothing about the attestation of the will by Bala Subramania. In cross-examination, he said that after he signed, Balasubramania wrote certain words on the will and put his signature. On further cross-examination, he added that Balasubramania was saying and writing something on the will, but he did not actually see Balasbramania writing or signing. We are satisfied that Samiyappa did not see Balasbramania putting his signature on the will. The High Court rightly held that the appellants failed to prove the signature of Balasbramania or the attestation of the will by him. On this ground alone we must hold that the will was not proved. We do not think it necessary to consider the further question whether the will was genuine5. The plaintiffs claimed that on Chinnayals death the properties acquired by Neelayadakshi under the will of Sivasami devolved upon them as the next reversioners of Neelayadakshi. Relying on a statement of P. W. 2, Sethurama Nainar, that Meenakshi had two daughters and a son, the appellants contend that the son of Meenakshi was the reversionary heir of Neelayadakshi. Assuming that Meenakshi had a son, it is not possible to say that he was born before the death of Chinnayal, and, if so, he was alive at the time of her death. In the absence of any son of Meenakshi at the time of Chinnayals death, admittedly the plaintiffs would be the next reversioners of Neelayadakshi. No issue was raised on this question, and the trial proceeded on the footing that the plaintiffs were the next reversioners of Neelayadakshi. The trial Court refused leave to the appellants to file an additional statement raising an issue on this point. In the circumstances, the Division Bench of the Madras High Court rightly held that it was not open to the appellants to contend that the plaintiffs were not the reversionary heirs of Neelayadakshi, and were not entitled to succeed to her estate on the death of Chinnayal6. In the plaint, there was no specific prayer for a decree for mesne profits subsequent to the institution of the suit. Counsel for the appellants argued that in the absence of such a specific prayer, the High Court had no jurisdiction to pass a decree for such mesne profits. We are unable to accept this contention. Order 20, R. 12 of the Code of Civil Procedure provides that where a suit is for the recovery of possession of immovable property and for rent or mesne profits the Court may pass a decree for the possession of the property and directing an enquiry as to the rent or mesne profits for a period prior to the institution of the suit and as to the subsequent mesne profits. The question is whether the provisions of O. 20, R. 12 apply to the present suit. We find that the plaintiffs distinctly pleaded in paragraph 9 of the plaint that they were entitled to call upon the defendants to account for mesne profits since the death of Chinnayal in respect of the suit properties. For the purposes of jurisdiction and court-fees, they valued their claim for possession and mesne profits for three years prior to the date of the suit and paid court fee thereon. In the prayer portion of the plaint, they claimed recovery of possession, an account of mesne profits for three years prior to the date of the suit, costs and such other relief as may seem fit and proper to the Court in the circumstances of the case. On a reading of the plaint, we are satisfied that the suit was for recovery of possession of immovable property and for mesne profits. The provisions of O. 20, R. 12 were therefore, attracted to the suit and the Court had power to pass a decree in the suit for both past and future mesne profitsSection 196 of Act VIII of 1859 empowered the Court in a suit for land or other property paying rent to pass a decree for mesne profits from the date of the suit until the date of delivery of possession to the decree-holder. The observations of the Privy Council suggest that in a suit to which S. 196 of Act VIII of 1859 applied, the Court had jurisdiction to pass a decree for mesne profits though there was no specific claim in the plaint for future, mesne profits. The Court has the like power to pass a decree directing an enquiry into future mesne profits in a suit to which the provisions of O. 20, R. 12 of the Code of Civil Procedure, 1908, applyIn our opinion, this passage does not support counsels contention. This Court made those observations in a case where the plaint claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either past or future mesne profits or rent. It may be that in these circumstances, the suit was not one for the recovery of possession of immovable property and for rent or mesne profits, and the Court could not pass a decree for future mesne profits under O. 20, R. 12 of the Code of Civil Procedure. But where, as in this case, the suit is for the recovery of possession of immovable property and for past mesne profits, the Court has ample power to pass a decree directing an enquiry as to future mesne profits, though there is no specific prayer for the same in the plaint. In the aforesaid case, this Court did not lay down a contrary proposition and this was pointed out by Subba Rao, C. J., in Atchamma v. Rami Reddy, ILR 1957 Andh Pra 52 at p. 56: (AIR 1958 Andh Pra 517 at p. 519)9. We are, therefore, satisfied that in this case the High Court had discretionary power to pass the decree for future mesne profits. It is not contended that the High Court exercised its discretion improperly or erroneously. We see no reason to interfere with the decree passed by the High Court. | 0 | 2,758 | 1,226 | ### Instruction:
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we are satisfied that the suit was for recovery of possession of immovable property and for mesne profits. The provisions of O. 20, R. 12 were therefore, attracted to the suit and the Court had power to pass a decree in the suit for both past and future mesne profits. 7. Order 20, R. 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of O. 7, Rr. 1 and 2 and O. 7, R. 7 of the Code of Civil Procedure and S. 7 (1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of O. 20, R. 12 apply. But in a suit to which the provisions of O. 20, R. 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief though, it is not specifically asked for in the plaint, see Basavayya v. Guruvayya, ILR (1952) Mad 173 at p. 177: (AIR 1951 Mad 938 at p. 940) (FB). In Fakharuddin Mahomed Ahsan v. Official Trustee of Bengal, (1882) ILR 8 Cal 178 at p. 189 (PC), Sir R. P. Collier observed : The plaint has been already read in the first case, and their Lordships are of opinion that it is at all events open to the construction that the plaintiff intended to claim wasilat up to the time of delivery of possession, although, for the purpose of valuation only, so much was valued as was then due; but be that as it may, they are of opinion that, under S. 196 of Act VIII of 1859, it was in the power of the Court if it thought fit, to make a decree which should give the plaintiff wasilat up to the date of obtaining possessions. Section 196 of Act VIII of 1859 empowered the Court in a suit for land or other property paying rent to pass a decree for mesne profits from the date of the suit until the date of delivery of possession to the decree-holder. The observations of the Privy Council suggest that in a suit to which S. 196 of Act VIII of 1859 applied, the Court had jurisdiction to pass a decree for mesne profits though there was no specific claim in the plaint for future, mesne profits. The Court has the like power to pass a decree directing an enquiry into future mesne profits in a suit to which the provisions of O. 20, R. 12 of the Code of Civil Procedure, 1908, apply. 8. In support of his contention that the Court has no jurisdiction to pass a decree for future mesne profits in the absence of a specific prayer for the same, counsel for the appellants relied upon the following passage in Mohd. Amin v. Vakil Ahmad, 1952 SCR 1133 at p. 1144: (AIR 1952 SC 858 at p. 362): It was however pointed out by Shri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto. We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to he deleted from the decree. In our opinion, this passage does not support counsels contention. This Court made those observations in a case where the plaint claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either past or future mesne profits or rent. It may be that in these circumstances, the suit was not one for the recovery of possession of immovable property and for rent or mesne profits, and the Court could not pass a decree for future mesne profits under O. 20, R. 12 of the Code of Civil Procedure. But where, as in this case, the suit is for the recovery of possession of immovable property and for past mesne profits, the Court has ample power to pass a decree directing an enquiry as to future mesne profits, though there is no specific prayer for the same in the plaint. In the aforesaid case, this Court did not lay down a contrary proposition and this was pointed out by Subba Rao, C. J., in Atchamma v. Rami Reddy, ILR 1957 Andh Pra 52 at p. 56: (AIR 1958 Andh Pra 517 at p. 519). 9. We are, therefore, satisfied that in this case the High Court had discretionary power to pass the decree for future mesne profits. It is not contended that the High Court exercised its discretion improperly or erroneously. We see no reason to interfere with the decree passed by the High Court.
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of the will by Bala Subramania. In cross-examination, he said that after he signed, Balasubramania wrote certain words on the will and put his signature. On further cross-examination, he added that Balasubramania was saying and writing something on the will, but he did not actually see Balasbramania writing or signing. We are satisfied that Samiyappa did not see Balasbramania putting his signature on the will. The High Court rightly held that the appellants failed to prove the signature of Balasbramania or the attestation of the will by him. On this ground alone we must hold that the will was not proved. We do not think it necessary to consider the further question whether the will was genuine5. The plaintiffs claimed that on Chinnayals death the properties acquired by Neelayadakshi under the will of Sivasami devolved upon them as the next reversioners of Neelayadakshi. Relying on a statement of P. W. 2, Sethurama Nainar, that Meenakshi had two daughters and a son, the appellants contend that the son of Meenakshi was the reversionary heir of Neelayadakshi. Assuming that Meenakshi had a son, it is not possible to say that he was born before the death of Chinnayal, and, if so, he was alive at the time of her death. In the absence of any son of Meenakshi at the time of Chinnayals death, admittedly the plaintiffs would be the next reversioners of Neelayadakshi. No issue was raised on this question, and the trial proceeded on the footing that the plaintiffs were the next reversioners of Neelayadakshi. The trial Court refused leave to the appellants to file an additional statement raising an issue on this point. In the circumstances, the Division Bench of the Madras High Court rightly held that it was not open to the appellants to contend that the plaintiffs were not the reversionary heirs of Neelayadakshi, and were not entitled to succeed to her estate on the death of Chinnayal6. In the plaint, there was no specific prayer for a decree for mesne profits subsequent to the institution of the suit. Counsel for the appellants argued that in the absence of such a specific prayer, the High Court had no jurisdiction to pass a decree for such mesne profits. We are unable to accept this contention. Order 20, R. 12 of the Code of Civil Procedure provides that where a suit is for the recovery of possession of immovable property and for rent or mesne profits the Court may pass a decree for the possession of the property and directing an enquiry as to the rent or mesne profits for a period prior to the institution of the suit and as to the subsequent mesne profits. The question is whether the provisions of O. 20, R. 12 apply to the present suit. We find that the plaintiffs distinctly pleaded in paragraph 9 of the plaint that they were entitled to call upon the defendants to account for mesne profits since the death of Chinnayal in respect of the suit properties. For the purposes of jurisdiction and court-fees, they valued their claim for possession and mesne profits for three years prior to the date of the suit and paid court fee thereon. In the prayer portion of the plaint, they claimed recovery of possession, an account of mesne profits for three years prior to the date of the suit, costs and such other relief as may seem fit and proper to the Court in the circumstances of the case. On a reading of the plaint, we are satisfied that the suit was for recovery of possession of immovable property and for mesne profits. The provisions of O. 20, R. 12 were therefore, attracted to the suit and the Court had power to pass a decree in the suit for both past and future mesne profitsSection 196 of Act VIII of 1859 empowered the Court in a suit for land or other property paying rent to pass a decree for mesne profits from the date of the suit until the date of delivery of possession to the decree-holder. The observations of the Privy Council suggest that in a suit to which S. 196 of Act VIII of 1859 applied, the Court had jurisdiction to pass a decree for mesne profits though there was no specific claim in the plaint for future, mesne profits. The Court has the like power to pass a decree directing an enquiry into future mesne profits in a suit to which the provisions of O. 20, R. 12 of the Code of Civil Procedure, 1908, applyIn our opinion, this passage does not support counsels contention. This Court made those observations in a case where the plaint claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either past or future mesne profits or rent. It may be that in these circumstances, the suit was not one for the recovery of possession of immovable property and for rent or mesne profits, and the Court could not pass a decree for future mesne profits under O. 20, R. 12 of the Code of Civil Procedure. But where, as in this case, the suit is for the recovery of possession of immovable property and for past mesne profits, the Court has ample power to pass a decree directing an enquiry as to future mesne profits, though there is no specific prayer for the same in the plaint. In the aforesaid case, this Court did not lay down a contrary proposition and this was pointed out by Subba Rao, C. J., in Atchamma v. Rami Reddy, ILR 1957 Andh Pra 52 at p. 56: (AIR 1958 Andh Pra 517 at p. 519)9. We are, therefore, satisfied that in this case the High Court had discretionary power to pass the decree for future mesne profits. It is not contended that the High Court exercised its discretion improperly or erroneously. We see no reason to interfere with the decree passed by the High Court.
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Union of India Vs. Rampur Distillery & Chemical Company, Limited | Chandrachud, J.1. The respondents Rampur Distillery and Chemical Co. Ltd. - supplied to the appellants - Union of India - a large quantity of rum (presumably, for the use of Defence personnel), The rum was found not to conform to the quality stipulated and was therefore rejected by the appellants. The appellants then cancelled the contract and forfeited the entire security deposit of Rs. 18,332/- which was kept by the respondents for the due performance of the contract. On the respondents disputing the right of the appellants to forfeit the security deposit, the dispute was referred to an arbitrator who held that the appellants were entitled under Section 74 of the Indian Contract Act to the award of reasonable compensation only, which the arbitrator fixed at Rs. 7,332/-. He directed the appellants to refund the balance viz. Rs. 11,000/- to the respondents.2. The respondents filed a petition under the Arbitration Act, 1940 for making the award a rule of the court. The appellants filed their objections thereto contending that there was an error of law apparent on the face of the award as they were entitled to forfeit the entire amount of the security deposit. This contention was rejected by the learned Judge and he passed a decree in terms of the award. The appeal against that judgment having been dismissed in limine by the High Court of Delhi, the appellants have filed this appeal by special leave.3. Only one contention was urged on behalf of the appellants before us: that the security deposit was taken from the respondents in order to ensure the due performance of the contract and respondents having defaulted, the entire amount was liable to be forfeited. A similar contention was advanced before this court but was rejected in Maula Bux v. Union of India, (1970) 1 SCR 928 = (AIR 1970 SC 1955 ). The appellant therein had entered into a contract with the Government of India for the supply of certain goods and had deposited a certain amount of security for the due performance of the contract. As in the instant case, it was stipulated in the contract there that the amount of security deposit was to stand forfeited in case the appellant neglected to perform his part of the contract. On the appellant committing default in the supply the Government rescinded the contract and forfeited the security deposit.It was held by this court that forfeiture of earnest money under a contract for sale of properly does not fall within S. 70 (74 ?) of the Contract Act, if the amount is reasonable, because the forfeiture of a reasonable sum paid as earnest money does not amount to the imposition of a penalty. But, "Where under the terms of the contract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party complaining of a breach of contract, the undertaking is of the nature of a penalty." It was further held that the amount deposited by way of security for guaranteeing the due performance of the contract cannot be regarded as earnest money.4. It is important that the breach of contract caused no loss to the appellants. The stipulated quantity of rum was subsequently supplied to the appellants by the respondents themselves at the same rate. The appellants, in fact, made no attempt to establish that they had suffered any loss or damage on account of the breach committed by the respondents.5.Following the decision in Maula Buxs case, (1970) 1 SCR 928 = (AIR 1970 SC 1955 ) we hold that the High Court was right in rejecting the appellants claim that they are entitled to forfeit the security deposit. Civil appeal 1346 of 1967 is accordingly dismissed with costs. | 0[ds]It was held by this court that forfeiture of earnest money under a contract for sale of properly does not fall within S. 70 (74 ?) of the Contract Act, if the amount is reasonable, because the forfeiture of a reasonable sum paid as earnest money does not amount to the imposition of a penalty. But, "Where under the terms of the contract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party complaining of a breach of contract, the undertaking is of the nature of a penalty." It was further held that the amount deposited by way of security for guaranteeing the due performance of the contract cannot be regarded as earnest money.4. It is important that the breach of contract caused no loss to the appellants. The stipulated quantity of rum was subsequentlysupplied to the appellantsby the respondents themselves at the same rate. The appellants, in fact, made no attempt to establish that they had suffered any loss or damage on account of the breach committed by the respondents.5.Following the decision in Maula Buxs case, (1970) 1 SCR 928 = (AIR 1970 SC 1955 ) we hold that the High Court was right in rejecting the appellants claim that they are entitled to forfeit the security deposit. Civil appeal 1346 of 1967 is accordingly dismissed with costs. | 0 | 687 | 262 | ### 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:
Chandrachud, J.1. The respondents Rampur Distillery and Chemical Co. Ltd. - supplied to the appellants - Union of India - a large quantity of rum (presumably, for the use of Defence personnel), The rum was found not to conform to the quality stipulated and was therefore rejected by the appellants. The appellants then cancelled the contract and forfeited the entire security deposit of Rs. 18,332/- which was kept by the respondents for the due performance of the contract. On the respondents disputing the right of the appellants to forfeit the security deposit, the dispute was referred to an arbitrator who held that the appellants were entitled under Section 74 of the Indian Contract Act to the award of reasonable compensation only, which the arbitrator fixed at Rs. 7,332/-. He directed the appellants to refund the balance viz. Rs. 11,000/- to the respondents.2. The respondents filed a petition under the Arbitration Act, 1940 for making the award a rule of the court. The appellants filed their objections thereto contending that there was an error of law apparent on the face of the award as they were entitled to forfeit the entire amount of the security deposit. This contention was rejected by the learned Judge and he passed a decree in terms of the award. The appeal against that judgment having been dismissed in limine by the High Court of Delhi, the appellants have filed this appeal by special leave.3. Only one contention was urged on behalf of the appellants before us: that the security deposit was taken from the respondents in order to ensure the due performance of the contract and respondents having defaulted, the entire amount was liable to be forfeited. A similar contention was advanced before this court but was rejected in Maula Bux v. Union of India, (1970) 1 SCR 928 = (AIR 1970 SC 1955 ). The appellant therein had entered into a contract with the Government of India for the supply of certain goods and had deposited a certain amount of security for the due performance of the contract. As in the instant case, it was stipulated in the contract there that the amount of security deposit was to stand forfeited in case the appellant neglected to perform his part of the contract. On the appellant committing default in the supply the Government rescinded the contract and forfeited the security deposit.It was held by this court that forfeiture of earnest money under a contract for sale of properly does not fall within S. 70 (74 ?) of the Contract Act, if the amount is reasonable, because the forfeiture of a reasonable sum paid as earnest money does not amount to the imposition of a penalty. But, "Where under the terms of the contract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party complaining of a breach of contract, the undertaking is of the nature of a penalty." It was further held that the amount deposited by way of security for guaranteeing the due performance of the contract cannot be regarded as earnest money.4. It is important that the breach of contract caused no loss to the appellants. The stipulated quantity of rum was subsequently supplied to the appellants by the respondents themselves at the same rate. The appellants, in fact, made no attempt to establish that they had suffered any loss or damage on account of the breach committed by the respondents.5.Following the decision in Maula Buxs case, (1970) 1 SCR 928 = (AIR 1970 SC 1955 ) we hold that the High Court was right in rejecting the appellants claim that they are entitled to forfeit the security deposit. Civil appeal 1346 of 1967 is accordingly dismissed with costs.
### Response:
0
### Explanation:
It was held by this court that forfeiture of earnest money under a contract for sale of properly does not fall within S. 70 (74 ?) of the Contract Act, if the amount is reasonable, because the forfeiture of a reasonable sum paid as earnest money does not amount to the imposition of a penalty. But, "Where under the terms of the contract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party complaining of a breach of contract, the undertaking is of the nature of a penalty." It was further held that the amount deposited by way of security for guaranteeing the due performance of the contract cannot be regarded as earnest money.4. It is important that the breach of contract caused no loss to the appellants. The stipulated quantity of rum was subsequentlysupplied to the appellantsby the respondents themselves at the same rate. The appellants, in fact, made no attempt to establish that they had suffered any loss or damage on account of the breach committed by the respondents.5.Following the decision in Maula Buxs case, (1970) 1 SCR 928 = (AIR 1970 SC 1955 ) we hold that the High Court was right in rejecting the appellants claim that they are entitled to forfeit the security deposit. Civil appeal 1346 of 1967 is accordingly dismissed with costs.
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Grid Corpn. Of Orissa Ltd.&Ors Vs. Eastern Metals & Ferro Alloys & Ors Etc | it would have realized with reference to the tariff rates that were earlier in force under the interim tariff. ‘Charges made by the licensee’ therefore refers to the total revenue of appellant by sale of electricity to the different categories of consumers.19. The appellant, discharging the functions of the State Government under the Act, had to ensure that the burden of increase on the agriculturist - consumers, that is those consuming electricity for “irrigation”, should be the minimum. Similarly, increase in the tariff rate for electricity consumed by railway traction had to be kept minimal in national economic interest. Similarly, the increase in tariff for residential user should be comparatively lesser than commercial user. At the same time, the appellant had to ensure an increase in its revenue by 17%. If increase beyond 17% was not permissible in regard to any category of consumers, and if some categories had to be subjected to only small increases far below 17%, due to economic or social justice criteria, the appellant would never be able to achieve the increase anything in the range of 17%. Only by adopting the process of applying a higher than 17% increase in the case of some categories of consumers, it can offset the effect of small or marginal increase in the case of some other categories like ‘irrigation’ and ‘railway traction”. Therefore, if appellant chose to charge a lesser increase in percentage to some categories of consumers and higher increases in regard to other categories of consumers, it cannot be found fault with so long as its total revenue does not exceed 17% over the corresponding revenue with reference to the old interim tariff rates. If appellant would have realized ‘X’ amount as revenue at the interim tariff rates which were in force before 21.5.1996, the object of the increase was to provide an increase in revenue by 17% over ‘X’ after 21.5.1996. That is why the word ‘on average’ is used in Clause 9.1. This gives the discretion to appellant to charge tariff rates with different increases depending upon the category of consumers, so long as the overall increase in revenue, that is the “charges made” by the licensee, does not exceed 17%. Any other interpretation would render the words ‘on average’ otiose and have the effect of substituting the words tariff rate for the word charges. 20. In fact, the Commission has accepted this contention of the appellant to a large extent as is evident from the following observations in the report: “As there will be considerable uncovered gap between revenue requirement and revenue expected. We do not find scope to bring down the charges in any category. But in the present environment of cross-subsidy which is bound to continue for a number of years and in the absence of reliable data for calculating cost of supply and average tariff, we consider that the relative rates for different categories of consumers for the interim period as decided by GRIDCO is as good as any other alternative allocation of costs and charges.........It appears that it has not been brought to the notice of the Court that all along in the past varying charges for different categories of consumers has been determined in consideration of nature and purpose of use and affordability of different categories of consumers. The cost of supply, the quality of supply and affordability are widely different for different classes of consumers. Due to socio-political decision to cross-subsidize some categories, it has never been considered desirable or possible to levy uniform charges or to decide upon a uniform percentage of increase of charges.......In the practice followed by electrical utilities in the country as well as abroad, the average “charges” for electricity tariff is calculated by considering the total revenue realizable during a period divided by number of units estimated to be sold during the period. Percentage of increase in charges or tariff, normally refers to percentage of increase of the average rate over the overall average rate of prevailing tariff calculated in this method. This has been the practice mainly due to the prevalence of cross-subsidy in the electricity tariff structure in India. Even when there is no cross-subsidy the rate of increase in tariff for various categories are different because the determination is with reference to cost of supply for a particular category of consumer. The concept of uniform rate of increase for all categories of consumers is unknown because every time there is a revision the interests of different categories are rebalanced in consideration of public policy, pattern of consumption, consumer composition and revenue requirements. Viewed in this light we find some justification in Gridco’s claim that ceiling of 117% was with reference to overall average of interim tariff and overall average rate of new tariff. This logic implies that there has been no clear distinction between ‘tariff’ and ‘charges’.” 21. The reliance upon Clause (2) of Explanation to Section 26 of the Act to interpret the wording of Clause 9.1 is misconceived. The explanation to Section 26 does not define the words ‘charges made’, but defines the word ‘tariffs’. Under the erroneous assumption that the word “charges” referred to the actual tariff rates that were chargeable to different categories of consumers, the Commission ignored its own conclusions and held that Clause 9.1 placed a ceiling of 17% in respect of increases in the tariff rates applicable to different categories of consumers. It is true that the interpretation by a technical body in regard to purely technical matters deserves acceptance and will not be interfered, unless it is arbitrary or unreasonable. But in this case, on technical issues, the Commission has favoured the stand of the appellant. Having accepted the interpretation of the appellant as being technically sound and correct, it reached a different conclusion only because it thought that the word ‘charges’ had to be interpreted as ‘tariff rates’. If that is found to be without basis or erroneous, and therefore ignored, the opinion of the Commission fully favours the appellant. | 1[ds]15. In this case, we have noticed above that Clause 9.1 is reasonably capable of more than one construction, that is at least three interpretations. We may therefore attempt to ascertain the true meaning of the provision by answering the four questions referred in the earlier para. On a careful consideration, the answers to the four questions posed are : (i) The purpose of Clause 9.1 is to provide for an increase in revenue by revising the tariff rates, by balancing the needs of the Licensee with the interests and needs of different categories of electricity consumers. (ii) Clause 9.1 being a fresh provision, the question of considering the position that existed before making of the said provision does not arise. (iii) The interpretation canvassed by the respondents, (that is interpretation (i) that increase in respect of anyrs cannot exceed 17%) which found favour with the High Court and the Commission, though may not lead to an absurd result, would render the words ‘onoccurring in the clause, redundant and otiose. (iv) The interpretation put forth by the appellant gives meaning to every part of the clause and also achieves the object of the clause. We will elaborate the reasons therefor.Re: Interpretation (i)16. The first interpretation of Clause 9.1 is that it permits increase in tariff rates but with a ceiling of 17% in regard to each and everys, and therefore the increase in case of no category can exceed 17%, has found favour with the High Court and the Commission. The fact that there can be different percentages of increases in tariff in regard to different categories is an accepted procedure. For example a lesser tariff is applied to agriculturists using electricity for irrigation purposes when compared to consumers using electricity for commercial or industrial purposes. Therefore, when there is a revision of tariff rates, the percentage of increase will and can vary from category to category. If the aforesaid interpretation is applied by holding that in no case, the increase can be more than 17%, and if in regard to some categories, increases are to be nominal, it will be impossible to achieve a 17% increase which is permitted and contemplated under Clause (9.1). Further, the words ‘onwould be rendered meaningless if by average 17% increase cannot be achieved and if the increases cannot exceed 17% in any case. This interpretation, if accepted, would also prevent the licensee from creating or carving out any newof consumers andfix the tariff rate for such category. Therefore this interpretation apart from rendering the words ‘onredundant and meaningless, militates against the provisions of Clause (9.1).Re : Interpretation (ii)17. The second interpretation is that so long as the average of the different increases does not exceed 17% of the interim tariff rates, the appellant has the discretion to apply different rates of increases to different categories and increases with reference to some categories can exceed 17%. This interpretation will also lead absurd result if put into effect. Let us illustrate with reference to a hypothetical example (not with reference to actuals):S.on share out of total quantity of electricity generated and distributedPercentage in increase over the previous tariff rate1.Industry40%60%2.Domestic30%30%3.Irrigation10%1%4.Railway traction10%2%5.Public Institutions5%3%6.General purposes5%4%The average of the percentages of increase in regard to six categories will be only 16.66% which is less than 17%. But in terms of revenue realization, the increase would exceed not only 17%, but even as much as 40% with reference to revenue at the previous tariff rates. This obviously was not the object. The average should ensure that there is no increase beyond 17% in regard to the total revenue.Re : Interpretation (iii)18. The words used in Clause (9.1) aremade by the licensee shall not exceed on average 117%of those permitted under the interimIt is significant to note that the clause does not use the wordstariff rates prescribed by the licensee shall not exceed 17%of those permitted under the interimThe use of the wordsin the same clauses indicates that they were intended to signify different meanings. As rightly noticed by the Commission, the wordreferred to the schedule of rates. If the object of Clause 9.1 was to refer to ‘tariffprescribed by the Licence, there was no need to use the wordse use of the wordsle referring to 117% has also some significance. If the wordsmade by theare interpreted asrates fixed by thethen, the words `onwould be rendered meaningless and becomes an useless appendage.use of the wordse by these of the wordsnot exceed on averagenecessarily indicates that therates fixed by theappellant should not result in an increase in realization or revenue in excess of 17% of what it would have realized with reference to the tariff rates that were earlier in force under the interim tariff. ‘Chargestherefore refers to the total revenue of appellant by sale of electricity to the different categories of consumers.19. The appellant, discharging the functions of the State Government under the Act, had to ensure that the burden of increase on the agriculturistconsumers, that is those consuming electricity forshould be the minimum. Similarly, increase in the tariff rate for electricity consumed by railway traction had to be kept minimal in national economic interest. Similarly, the increase in tariff for residential user should be comparatively lesser than commercial user. At the same time, the appellant had to ensure an increase in its revenue by 17%. If increase beyond 17% was not permissible in regard to anys, and if some categories had to be subjected to only small increases far below 17%, due to economic or social justice criteria, the appellant would never be able to achieve the increase anything in the range of 17%. Only by adopting the process of applying a higher than 17% increase in the case of some categoriesof consumers, itcan offset the effect of small or marginal increase in the case of some other categories likeTherefore, if appellant chose to charge a lesser increase in percentage to some categoriesof consumers andhigher increases in regard to other categoriesof consumers, itcannot be found fault with so long as its total revenue does not exceed 17% over the corresponding revenue with reference to the old interim tariff rates. If appellant would have realizedamount as revenue at the interim tariff rates which were in force before 21.5.1996, the object of the increase was to provide an increase in revenue by 17% overafter 21.5.1996. That is why the word ‘onis used in Clause 9.1. This gives the discretion to appellant to charge tariff rates with different increases depending upon thes, so long as the overall increase in revenue, that is theby the licensee, does not exceed 17%. Any other interpretation would render the words ‘onotiose and have the effect of substituting the words tariff rate for the word charges.The reliance upon Clause (2) of Explanation to Section 26 of the Act to interpret the wording of Clause 9.1 is misconceived. The explanation to Section 26 does not define the words ‘chargesbut defines the wordUnder the erroneous assumption that the wordreferred to the actual tariff rates that were chargeable to different categories of consumers, the Commission ignored its own conclusions and held that Clause 9.1 placed a ceiling of 17% in respect of increases in the tariff rates applicable to different categories of consumers. It is true that the interpretation by a technical body in regard to purely technical matters deserves acceptance and will not be interfered, unless it is arbitrary or unreasonable. But in this case, on technical issues, the Commission has favoured the stand of the appellant. Having accepted the interpretation of the appellant as being technically sound and correct, it reached a different conclusion only because it thought that the wordhad to be interpreted as ‘tariffIf that is found to be without basis or erroneous, and therefore ignored, the opinion of the Commission fully favours the appellant | 1 | 5,846 | 1,493 | ### 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:
it would have realized with reference to the tariff rates that were earlier in force under the interim tariff. ‘Charges made by the licensee’ therefore refers to the total revenue of appellant by sale of electricity to the different categories of consumers.19. The appellant, discharging the functions of the State Government under the Act, had to ensure that the burden of increase on the agriculturist - consumers, that is those consuming electricity for “irrigation”, should be the minimum. Similarly, increase in the tariff rate for electricity consumed by railway traction had to be kept minimal in national economic interest. Similarly, the increase in tariff for residential user should be comparatively lesser than commercial user. At the same time, the appellant had to ensure an increase in its revenue by 17%. If increase beyond 17% was not permissible in regard to any category of consumers, and if some categories had to be subjected to only small increases far below 17%, due to economic or social justice criteria, the appellant would never be able to achieve the increase anything in the range of 17%. Only by adopting the process of applying a higher than 17% increase in the case of some categories of consumers, it can offset the effect of small or marginal increase in the case of some other categories like ‘irrigation’ and ‘railway traction”. Therefore, if appellant chose to charge a lesser increase in percentage to some categories of consumers and higher increases in regard to other categories of consumers, it cannot be found fault with so long as its total revenue does not exceed 17% over the corresponding revenue with reference to the old interim tariff rates. If appellant would have realized ‘X’ amount as revenue at the interim tariff rates which were in force before 21.5.1996, the object of the increase was to provide an increase in revenue by 17% over ‘X’ after 21.5.1996. That is why the word ‘on average’ is used in Clause 9.1. This gives the discretion to appellant to charge tariff rates with different increases depending upon the category of consumers, so long as the overall increase in revenue, that is the “charges made” by the licensee, does not exceed 17%. Any other interpretation would render the words ‘on average’ otiose and have the effect of substituting the words tariff rate for the word charges. 20. In fact, the Commission has accepted this contention of the appellant to a large extent as is evident from the following observations in the report: “As there will be considerable uncovered gap between revenue requirement and revenue expected. We do not find scope to bring down the charges in any category. But in the present environment of cross-subsidy which is bound to continue for a number of years and in the absence of reliable data for calculating cost of supply and average tariff, we consider that the relative rates for different categories of consumers for the interim period as decided by GRIDCO is as good as any other alternative allocation of costs and charges.........It appears that it has not been brought to the notice of the Court that all along in the past varying charges for different categories of consumers has been determined in consideration of nature and purpose of use and affordability of different categories of consumers. The cost of supply, the quality of supply and affordability are widely different for different classes of consumers. Due to socio-political decision to cross-subsidize some categories, it has never been considered desirable or possible to levy uniform charges or to decide upon a uniform percentage of increase of charges.......In the practice followed by electrical utilities in the country as well as abroad, the average “charges” for electricity tariff is calculated by considering the total revenue realizable during a period divided by number of units estimated to be sold during the period. Percentage of increase in charges or tariff, normally refers to percentage of increase of the average rate over the overall average rate of prevailing tariff calculated in this method. This has been the practice mainly due to the prevalence of cross-subsidy in the electricity tariff structure in India. Even when there is no cross-subsidy the rate of increase in tariff for various categories are different because the determination is with reference to cost of supply for a particular category of consumer. The concept of uniform rate of increase for all categories of consumers is unknown because every time there is a revision the interests of different categories are rebalanced in consideration of public policy, pattern of consumption, consumer composition and revenue requirements. Viewed in this light we find some justification in Gridco’s claim that ceiling of 117% was with reference to overall average of interim tariff and overall average rate of new tariff. This logic implies that there has been no clear distinction between ‘tariff’ and ‘charges’.” 21. The reliance upon Clause (2) of Explanation to Section 26 of the Act to interpret the wording of Clause 9.1 is misconceived. The explanation to Section 26 does not define the words ‘charges made’, but defines the word ‘tariffs’. Under the erroneous assumption that the word “charges” referred to the actual tariff rates that were chargeable to different categories of consumers, the Commission ignored its own conclusions and held that Clause 9.1 placed a ceiling of 17% in respect of increases in the tariff rates applicable to different categories of consumers. It is true that the interpretation by a technical body in regard to purely technical matters deserves acceptance and will not be interfered, unless it is arbitrary or unreasonable. But in this case, on technical issues, the Commission has favoured the stand of the appellant. Having accepted the interpretation of the appellant as being technically sound and correct, it reached a different conclusion only because it thought that the word ‘charges’ had to be interpreted as ‘tariff rates’. If that is found to be without basis or erroneous, and therefore ignored, the opinion of the Commission fully favours the appellant.
### Response:
1
### Explanation:
there is a revision of tariff rates, the percentage of increase will and can vary from category to category. If the aforesaid interpretation is applied by holding that in no case, the increase can be more than 17%, and if in regard to some categories, increases are to be nominal, it will be impossible to achieve a 17% increase which is permitted and contemplated under Clause (9.1). Further, the words ‘onwould be rendered meaningless if by average 17% increase cannot be achieved and if the increases cannot exceed 17% in any case. This interpretation, if accepted, would also prevent the licensee from creating or carving out any newof consumers andfix the tariff rate for such category. Therefore this interpretation apart from rendering the words ‘onredundant and meaningless, militates against the provisions of Clause (9.1).Re : Interpretation (ii)17. The second interpretation is that so long as the average of the different increases does not exceed 17% of the interim tariff rates, the appellant has the discretion to apply different rates of increases to different categories and increases with reference to some categories can exceed 17%. This interpretation will also lead absurd result if put into effect. Let us illustrate with reference to a hypothetical example (not with reference to actuals):S.on share out of total quantity of electricity generated and distributedPercentage in increase over the previous tariff rate1.Industry40%60%2.Domestic30%30%3.Irrigation10%1%4.Railway traction10%2%5.Public Institutions5%3%6.General purposes5%4%The average of the percentages of increase in regard to six categories will be only 16.66% which is less than 17%. But in terms of revenue realization, the increase would exceed not only 17%, but even as much as 40% with reference to revenue at the previous tariff rates. This obviously was not the object. The average should ensure that there is no increase beyond 17% in regard to the total revenue.Re : Interpretation (iii)18. The words used in Clause (9.1) aremade by the licensee shall not exceed on average 117%of those permitted under the interimIt is significant to note that the clause does not use the wordstariff rates prescribed by the licensee shall not exceed 17%of those permitted under the interimThe use of the wordsin the same clauses indicates that they were intended to signify different meanings. As rightly noticed by the Commission, the wordreferred to the schedule of rates. If the object of Clause 9.1 was to refer to ‘tariffprescribed by the Licence, there was no need to use the wordse use of the wordsle referring to 117% has also some significance. If the wordsmade by theare interpreted asrates fixed by thethen, the words `onwould be rendered meaningless and becomes an useless appendage.use of the wordse by these of the wordsnot exceed on averagenecessarily indicates that therates fixed by theappellant should not result in an increase in realization or revenue in excess of 17% of what it would have realized with reference to the tariff rates that were earlier in force under the interim tariff. ‘Chargestherefore refers to the total revenue of appellant by sale of electricity to the different categories of consumers.19. The appellant, discharging the functions of the State Government under the Act, had to ensure that the burden of increase on the agriculturistconsumers, that is those consuming electricity forshould be the minimum. Similarly, increase in the tariff rate for electricity consumed by railway traction had to be kept minimal in national economic interest. Similarly, the increase in tariff for residential user should be comparatively lesser than commercial user. At the same time, the appellant had to ensure an increase in its revenue by 17%. If increase beyond 17% was not permissible in regard to anys, and if some categories had to be subjected to only small increases far below 17%, due to economic or social justice criteria, the appellant would never be able to achieve the increase anything in the range of 17%. Only by adopting the process of applying a higher than 17% increase in the case of some categoriesof consumers, itcan offset the effect of small or marginal increase in the case of some other categories likeTherefore, if appellant chose to charge a lesser increase in percentage to some categoriesof consumers andhigher increases in regard to other categoriesof consumers, itcannot be found fault with so long as its total revenue does not exceed 17% over the corresponding revenue with reference to the old interim tariff rates. If appellant would have realizedamount as revenue at the interim tariff rates which were in force before 21.5.1996, the object of the increase was to provide an increase in revenue by 17% overafter 21.5.1996. That is why the word ‘onis used in Clause 9.1. This gives the discretion to appellant to charge tariff rates with different increases depending upon thes, so long as the overall increase in revenue, that is theby the licensee, does not exceed 17%. Any other interpretation would render the words ‘onotiose and have the effect of substituting the words tariff rate for the word charges.The reliance upon Clause (2) of Explanation to Section 26 of the Act to interpret the wording of Clause 9.1 is misconceived. The explanation to Section 26 does not define the words ‘chargesbut defines the wordUnder the erroneous assumption that the wordreferred to the actual tariff rates that were chargeable to different categories of consumers, the Commission ignored its own conclusions and held that Clause 9.1 placed a ceiling of 17% in respect of increases in the tariff rates applicable to different categories of consumers. It is true that the interpretation by a technical body in regard to purely technical matters deserves acceptance and will not be interfered, unless it is arbitrary or unreasonable. But in this case, on technical issues, the Commission has favoured the stand of the appellant. Having accepted the interpretation of the appellant as being technically sound and correct, it reached a different conclusion only because it thought that the wordhad to be interpreted as ‘tariffIf that is found to be without basis or erroneous, and therefore ignored, the opinion of the Commission fully favours the appellant
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Tushar Kanti Bose Vs. Savitri Devi | raised a wall to dispossess the respondents from a portion in respect of which there was already an order of injunction by the Alipore Court. After coming to the aforesaid conclusion the Learned Single Judge directed by an order of mandatory injunction to close down the holes and remove all obstacles and restore back possession of the portion to the respondents which was to be done under the supervision of Sri Anajn Chakraborty who was appointed as the Special Officer. Against the aforesaid order the appellants moved the Division Bench of the Calcutta High Court which was registered as Appeal No. 340 of 1988. On 20th May, 1988 the Division Bench passed an order of status quo as on that date. On 12th November, 1991 the Division Bench in the aforesaid appeal passed an order appointing Shri Suhrid Roychoudhury as the Special Officer and directed that the Special Officer shall take forthwith possession of the disputed rooms. After taking possession of the rooms he shall allow the parties to occupy the rooms subject to the undertaking of such parties that they will not claim equity to occupy the disputed rooms until further orders. The Special Officer was also directed to appoint a surveyor who shall demarcate Plot No. 3 belonging to the appellants and Plot No. 4 belonging to the respondents on the basis of conveyance, original plans, original documents, scheme and other papers. Both parties were directed to complete demarcation within 3 weeks from the date of order and submit a report to the Court. Pursuant to the aforesaid order of the Division Bench Shri Suhrid Roychoudhury, the Special Officer appointed one Shri Bhupendra Mohan Saha as the Surveyor by consent of parties for the purpose of demarcation of Plot Nos. 3 and 4. After demarcation was done through the assistance of the Surveyor Shri Bhupendra Mohan Saha, the Special Officer Suhrid Kumar Roychoudhury submitted his report on 20th April, 1992. The Division Bench by order dated 1st July, 1992 granted leave to the respondents to file an application taking exception to the report of the Special Officer within two weeks. The respondents filed their objections. When the matter was called on 1st September, 1992 none appeared for the applicants, and therefore, application was dismissed. Finally, the matter was listed before another Division Bench who by the learned single Judge to hand over possession of the property to Bhattacharjees, the respondents herein and it is this order which is under challenge in this appeal. 4. Mr. Das the learned senior counsel appearing for the appellants contended that the Special Officer Shri Suhrid Kumar Roychoudhury having been appointed by the Division Bench and having submitted a report on the basis of the survey which he had a report on the basis of the survey which he had conducted with the help of Surveyor Shri Bhupendra Mohan Saha and said Surveyor having been appointed on consent of the parties, the Division Bench committed gross error in not considering the aforesaid report and disposing of the matter on the basis of report submitted earlier by Sri Anajn Chakraborty who had been appointed as a Special Officer by the Learned Single Judge. Mr. Das further contended that an objection to the report of the Special Officer, Shri Suhrid Kumar Roychoudhury having been filed and the same having been rejected by order dated 1st September, 1992, the Division Bench should have given effect to the said report and therefore the Bench was not right in ignoring the same and directing implementation of the earlier order of the Learned Single Judge. Mr. Das lastly contended that in view of the order of the Division Bench appointing Shri Suhrid Kumar Roychoudhury as a Special Officer, Sri Anajn Chakrabortys earlier appointment as a special officer is not valid and therefore the Division Bench should not give effect to the order of the Learned Single Judge. Mr. P. P. Rao, learned senior counsel appearing for the respondents on the other hand contended that in view of several pending litigations between the parties both for declaration of title as well as for possession, it was not open for the appellant on the basis of an order for demarcation to get their title establishment and in that view of the matter the Division Bench was wholly justified in dismissing the appeal. Mr. Rao further contended that during the pendency of the proceeding the appellants having been found encroached upon a portion of respondents property, the Court was fully justified in passing the order impugned herein. 5. Having heard the learned counsel for the parties and after through the record of the case without expressing any opinion on the merits of the rival contention we are of the considered Bench cannot be sustained on the sole ground of non-consideration of the relevant material. It is undisputed that Shri Suhrid Kumar Roychodhury was appointed as a Special Officer by the Division Bench on 12th November, 1991 and it was directed that he shall demarcate the two plots by taking assistance of a Surveyor. It is also undisputed that said Shri Suhrid Kumar Roychoudury appointed Shri Bhupendra Mohan Saha as the Surveyor on the consent of parties and ultimately on the basis of the survey done the Special Officer had submitted his report on 28th April, 1992. An objection filed to the said report by the respondents stood dismissed on 1st September, 1992. The aforesaid report of the Special Officer as well as the survey done by Shri Bhupendra Mohan Saha constitute an important item of evidence which could not have been ignored by the Division Bench while disposing of the appeal. Then again so far as the appeal is concerned it is Shri Suhrid Kumar Roychoudhury who had been appointed by the Division Bench and said order of appointment had not been reversed by the subsequent Beach and therefore any direction can be given only to the said Special Officer. Non-consideration of the aforesaid vital piece of evidence vitiates the ultimate conclusion. | 1[ds]5. Having heard the learned counsel for the parties and after through the record of the case without expressing any opinion on the merits of the rival contention we are of the considered Bench cannot be sustained on the sole ground of non-consideration of the relevant material. It is undisputed that Shri Suhrid Kumar Roychodhury was appointed as a Special Officer by the Division Bench on 12th November, 1991 and it was directed that he shall demarcate the two plots by taking assistance of a Surveyor. It is also undisputed that said Shri Suhrid Kumar Roychoudury appointed Shri Bhupendra Mohan Saha as the Surveyor on the consent of parties and ultimately on the basis of the survey done the Special Officer had submitted his report on 28th April, 1992. An objection filed to the said report by the respondents stood dismissed on 1st September, 1992. The aforesaid report of the Special Officer as well as the survey done by Shri Bhupendra Mohan Saha constitute an important item of evidence which could not have been ignored by the Division Bench while disposing of the appeal. Then again so far as the appeal is concerned it is Shri Suhrid Kumar Roychoudhury who had been appointed by the Division Bench and said order of appointment had not been reversed by the subsequent Beach and therefore any direction can be given only to the said Special Officer. Non-consideration of the aforesaid vital piece of evidence vitiates the ultimate conclusion. | 1 | 1,433 | 261 | ### 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:
raised a wall to dispossess the respondents from a portion in respect of which there was already an order of injunction by the Alipore Court. After coming to the aforesaid conclusion the Learned Single Judge directed by an order of mandatory injunction to close down the holes and remove all obstacles and restore back possession of the portion to the respondents which was to be done under the supervision of Sri Anajn Chakraborty who was appointed as the Special Officer. Against the aforesaid order the appellants moved the Division Bench of the Calcutta High Court which was registered as Appeal No. 340 of 1988. On 20th May, 1988 the Division Bench passed an order of status quo as on that date. On 12th November, 1991 the Division Bench in the aforesaid appeal passed an order appointing Shri Suhrid Roychoudhury as the Special Officer and directed that the Special Officer shall take forthwith possession of the disputed rooms. After taking possession of the rooms he shall allow the parties to occupy the rooms subject to the undertaking of such parties that they will not claim equity to occupy the disputed rooms until further orders. The Special Officer was also directed to appoint a surveyor who shall demarcate Plot No. 3 belonging to the appellants and Plot No. 4 belonging to the respondents on the basis of conveyance, original plans, original documents, scheme and other papers. Both parties were directed to complete demarcation within 3 weeks from the date of order and submit a report to the Court. Pursuant to the aforesaid order of the Division Bench Shri Suhrid Roychoudhury, the Special Officer appointed one Shri Bhupendra Mohan Saha as the Surveyor by consent of parties for the purpose of demarcation of Plot Nos. 3 and 4. After demarcation was done through the assistance of the Surveyor Shri Bhupendra Mohan Saha, the Special Officer Suhrid Kumar Roychoudhury submitted his report on 20th April, 1992. The Division Bench by order dated 1st July, 1992 granted leave to the respondents to file an application taking exception to the report of the Special Officer within two weeks. The respondents filed their objections. When the matter was called on 1st September, 1992 none appeared for the applicants, and therefore, application was dismissed. Finally, the matter was listed before another Division Bench who by the learned single Judge to hand over possession of the property to Bhattacharjees, the respondents herein and it is this order which is under challenge in this appeal. 4. Mr. Das the learned senior counsel appearing for the appellants contended that the Special Officer Shri Suhrid Kumar Roychoudhury having been appointed by the Division Bench and having submitted a report on the basis of the survey which he had a report on the basis of the survey which he had conducted with the help of Surveyor Shri Bhupendra Mohan Saha and said Surveyor having been appointed on consent of the parties, the Division Bench committed gross error in not considering the aforesaid report and disposing of the matter on the basis of report submitted earlier by Sri Anajn Chakraborty who had been appointed as a Special Officer by the Learned Single Judge. Mr. Das further contended that an objection to the report of the Special Officer, Shri Suhrid Kumar Roychoudhury having been filed and the same having been rejected by order dated 1st September, 1992, the Division Bench should have given effect to the said report and therefore the Bench was not right in ignoring the same and directing implementation of the earlier order of the Learned Single Judge. Mr. Das lastly contended that in view of the order of the Division Bench appointing Shri Suhrid Kumar Roychoudhury as a Special Officer, Sri Anajn Chakrabortys earlier appointment as a special officer is not valid and therefore the Division Bench should not give effect to the order of the Learned Single Judge. Mr. P. P. Rao, learned senior counsel appearing for the respondents on the other hand contended that in view of several pending litigations between the parties both for declaration of title as well as for possession, it was not open for the appellant on the basis of an order for demarcation to get their title establishment and in that view of the matter the Division Bench was wholly justified in dismissing the appeal. Mr. Rao further contended that during the pendency of the proceeding the appellants having been found encroached upon a portion of respondents property, the Court was fully justified in passing the order impugned herein. 5. Having heard the learned counsel for the parties and after through the record of the case without expressing any opinion on the merits of the rival contention we are of the considered Bench cannot be sustained on the sole ground of non-consideration of the relevant material. It is undisputed that Shri Suhrid Kumar Roychodhury was appointed as a Special Officer by the Division Bench on 12th November, 1991 and it was directed that he shall demarcate the two plots by taking assistance of a Surveyor. It is also undisputed that said Shri Suhrid Kumar Roychoudury appointed Shri Bhupendra Mohan Saha as the Surveyor on the consent of parties and ultimately on the basis of the survey done the Special Officer had submitted his report on 28th April, 1992. An objection filed to the said report by the respondents stood dismissed on 1st September, 1992. The aforesaid report of the Special Officer as well as the survey done by Shri Bhupendra Mohan Saha constitute an important item of evidence which could not have been ignored by the Division Bench while disposing of the appeal. Then again so far as the appeal is concerned it is Shri Suhrid Kumar Roychoudhury who had been appointed by the Division Bench and said order of appointment had not been reversed by the subsequent Beach and therefore any direction can be given only to the said Special Officer. Non-consideration of the aforesaid vital piece of evidence vitiates the ultimate conclusion.
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1
### Explanation:
5. Having heard the learned counsel for the parties and after through the record of the case without expressing any opinion on the merits of the rival contention we are of the considered Bench cannot be sustained on the sole ground of non-consideration of the relevant material. It is undisputed that Shri Suhrid Kumar Roychodhury was appointed as a Special Officer by the Division Bench on 12th November, 1991 and it was directed that he shall demarcate the two plots by taking assistance of a Surveyor. It is also undisputed that said Shri Suhrid Kumar Roychoudury appointed Shri Bhupendra Mohan Saha as the Surveyor on the consent of parties and ultimately on the basis of the survey done the Special Officer had submitted his report on 28th April, 1992. An objection filed to the said report by the respondents stood dismissed on 1st September, 1992. The aforesaid report of the Special Officer as well as the survey done by Shri Bhupendra Mohan Saha constitute an important item of evidence which could not have been ignored by the Division Bench while disposing of the appeal. Then again so far as the appeal is concerned it is Shri Suhrid Kumar Roychoudhury who had been appointed by the Division Bench and said order of appointment had not been reversed by the subsequent Beach and therefore any direction can be given only to the said Special Officer. Non-consideration of the aforesaid vital piece of evidence vitiates the ultimate conclusion.
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Rabindra Nath Samuel Dawson Vs. Sivakami & Others | dates of next revenue sales nonetheless, was not barred because the plaintiff would be entitled to exclude under Section 14 the time spent in prosecuting the earlier suit in computing the period of limitation and after this period was excluded the suit would be in time. Some of the other issues were also decided in favour of the plaintiff. Consequently the Subordinate Judge decreed the suit with past and future mesne profits. In appeal the High Court of Madras, as stated earlier, came to a different conclusion on the question of limitation. It held, agreeing with the findings of the Subordinate Judge, that the auction purchasers in revenue sales never took possession nor were their alienees or plaintiff ever in possession of the suit properties. After this finding the High Court proceeded to consider whether the appellant was entitled to exclude the time taken in the prosecution of the previous suit under Section 14 of the Limitation Act. It was contended before that court that the plaintiff was bona filed in filing his suit and prosecuting it and the appeal, and therefore, he was entitled to exclude that period under Section 14 of the Limitation Act. This contention was negatived with these observations :"From what we have stated above, it will be plain that the appellant took objection to the non-impleading of the Government as a party at earliest possible opportunity. The respondents would not take note of that objection. They persisted in their attitude till ultimately the High Court of Travancore-Cochin held that the suit will have to fail for the non-impleading of the necessary party. A request was made to the High Court to permit the respondents herein to remedy the defect. The learned Judges held that they could not accede to that request and that the suit has to be dismissed as in spite of timely objection raised by the defendant on the ground of non-joinder of parties the plaintiff persisted in proceeding with the suit undertaking to bear the risk of not impleading the sircar. This attitude on the part of the respondents is sufficient to dispose of the question of bona fides against them. Mr. V. V. Raghavan argues that the fact that two Subordinate Courts in the previous litigation had held that there was no need to implead the Government as a party to the suit would itself show that the respondents were acting under bona fide mistake. As we have pointed out earlier the defendants took objection to the non-impleading of the necessary party even at the earliest stage. The matter went up to the Travancore High Court. The respondents did not want the High Court to decided the question as to whether the Government was a necessary party or not on the ground that they were prepared to take the risk of their omission to implead the Sircar and on that ground got a dismissal of the revision petition filed by the appellants. Under these circumstances we cannot accept the contention now urged on behalf of the respondents herein that they bona fide instituted the previous suit."The reasons given by the High Court are in our view cogent. Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a court of first instance or in a court of first appeal against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which from the defect of jurisdiction and is prosecuted in good faith in a court which from the defect of jurisdiction or other cause of like nature is unable to entertain it. The appellants advocate points out that under Section 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case the appellant was bona fide in purchasing the suit properties from an auction purchaser who also purchased them in revenue sales bona fide and that without notice to either of them the sale has been set aside which is totally without jurisdiction and injuriously affects the appellant. That the appellant was caught in this predicament may be unfortunate but insofar as the question whether he bona fide prosecuted the earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court. It is clear that no suit for declaration and possession could have been filed against the defendants in respect of the revenue sales which was set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the District Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bona fide. But on the other hand, he deliberately did so may be for obvious reason that if he had to withdraw the suit he would have to give notice under Section 80, C.P.C. to the Government, wait for the expiry of the period of notice of two months and thereafter file a fresh suit. To avoid this he though he would taken a chance but that chance boomeranged against him. It is not a case where he prosecuted due to ignorance of law or bona fide mistake nor can it be said that he had misconceived the suit. None of the cases cited by the learned advocate can assist the appellant because in all of them it was either a case of mistake of law on a doubtful point such as in the case of Bishambhur Haldar v. Bonomali Haldar and Others, (ILR (1899) 26 Cal 414 : 3 CWN 233) or ignorance of law. | 0[ds]the High Court proceeded to consider whether the appellant was entitled to exclude the time taken in the prosecution of the previous suit under Section 14 of the Limitation Act. It was contended before that court that the plaintiff was bona filed in filing his suit and prosecuting it and the appeal, and therefore, he was entitled to exclude that period under Section 14 of the Limitation Act. This contention was negatived with these observations :"From what we have stated above, it will be plain that the appellant took objection to theg of the Government as a party at earliest possible opportunity. The respondents would not take note of that objection. They persisted in their attitude till ultimately the High Court ofn held that the suit will have to fail for theg of the necessary party. A request was made to the High Court to permit the respondents herein to remedy the defect. The learned Judges held that they could not accede to that request and that the suit has to be dismissed as in spite of timely objection raised by the defendant on the ground ofr of parties the plaintiff persisted in proceeding with the suit undertaking to bear the risk of not impleading the sircar.This attitude on the part of the respondents is sufficient to dispose of the question of bona fides against them.Mr. V. V. Raghavan argues that the fact that two Subordinate Courts in the previous litigation had held that there was no need to implead the Government as a party to the suit would itself show that the respondents were acting under bona fide mistake.As we have pointed out earlier the defendants took objection to theg of the necessary party even at the earliest stage. The matter went up to the Travancore High Court. The respondents did not want the High Court to decided the question as to whether the Government was a necessary party or not on the ground that they were prepared to take the risk of their omission to implead the Sircar and on that ground got a dismissal of the revision petition filed by the appellants. Under these circumstances we cannot accept the contention now urged on behalf of the respondents herein that they bona fide instituted the previous suit."The reasons given by the High Court are in our view cogent. Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a court of first instance or in a court of first appeal against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which from the defect of jurisdiction and is prosecuted in good faith in a court which from the defect of jurisdiction or other cause of like nature is unable to entertain it.The appellants advocate points out that under Section 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case the appellant was bona fide in purchasing the suit properties from an auction purchaser who also purchased them in revenue sales bona fide and that without notice to either of them the sale has been set aside which is totally without jurisdiction and injuriously affects the appellant.That the appellant was caught in this predicament may be unfortunate but insofar as the question whether he bona fide prosecuted the earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court. It is clear that no suit for declaration and possession could have been filed against the defendants in respect of the revenue sales which was set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the District Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bona fide. But on the other hand, he deliberately did so may be for obvious reason that if he had to withdraw the suit he would have to give notice under Section 80, C.P.C. to the Government, wait for the expiry of the period of notice of two months and thereafter file a fresh suit. To avoid this he though he would taken a chance but that chance boomeranged against him. It is not a case where he prosecuted due to ignorance of law or bona fide mistake nor can it be said that he had misconceived the suit. None of the cases cited by the learned advocate can assist the appellant because in all of them it was either a case of mistake of law on a doubtful point such as in the case of Bishambhur Haldar v. Bonomali Haldar and Others, (ILR (1899) 26 Cal 414 : 3 CWN 233) or ignorance of law. | 0 | 1,974 | 910 | ### 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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dates of next revenue sales nonetheless, was not barred because the plaintiff would be entitled to exclude under Section 14 the time spent in prosecuting the earlier suit in computing the period of limitation and after this period was excluded the suit would be in time. Some of the other issues were also decided in favour of the plaintiff. Consequently the Subordinate Judge decreed the suit with past and future mesne profits. In appeal the High Court of Madras, as stated earlier, came to a different conclusion on the question of limitation. It held, agreeing with the findings of the Subordinate Judge, that the auction purchasers in revenue sales never took possession nor were their alienees or plaintiff ever in possession of the suit properties. After this finding the High Court proceeded to consider whether the appellant was entitled to exclude the time taken in the prosecution of the previous suit under Section 14 of the Limitation Act. It was contended before that court that the plaintiff was bona filed in filing his suit and prosecuting it and the appeal, and therefore, he was entitled to exclude that period under Section 14 of the Limitation Act. This contention was negatived with these observations :"From what we have stated above, it will be plain that the appellant took objection to the non-impleading of the Government as a party at earliest possible opportunity. The respondents would not take note of that objection. They persisted in their attitude till ultimately the High Court of Travancore-Cochin held that the suit will have to fail for the non-impleading of the necessary party. A request was made to the High Court to permit the respondents herein to remedy the defect. The learned Judges held that they could not accede to that request and that the suit has to be dismissed as in spite of timely objection raised by the defendant on the ground of non-joinder of parties the plaintiff persisted in proceeding with the suit undertaking to bear the risk of not impleading the sircar. This attitude on the part of the respondents is sufficient to dispose of the question of bona fides against them. Mr. V. V. Raghavan argues that the fact that two Subordinate Courts in the previous litigation had held that there was no need to implead the Government as a party to the suit would itself show that the respondents were acting under bona fide mistake. As we have pointed out earlier the defendants took objection to the non-impleading of the necessary party even at the earliest stage. The matter went up to the Travancore High Court. The respondents did not want the High Court to decided the question as to whether the Government was a necessary party or not on the ground that they were prepared to take the risk of their omission to implead the Sircar and on that ground got a dismissal of the revision petition filed by the appellants. Under these circumstances we cannot accept the contention now urged on behalf of the respondents herein that they bona fide instituted the previous suit."The reasons given by the High Court are in our view cogent. Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a court of first instance or in a court of first appeal against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which from the defect of jurisdiction and is prosecuted in good faith in a court which from the defect of jurisdiction or other cause of like nature is unable to entertain it. The appellants advocate points out that under Section 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case the appellant was bona fide in purchasing the suit properties from an auction purchaser who also purchased them in revenue sales bona fide and that without notice to either of them the sale has been set aside which is totally without jurisdiction and injuriously affects the appellant. That the appellant was caught in this predicament may be unfortunate but insofar as the question whether he bona fide prosecuted the earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court. It is clear that no suit for declaration and possession could have been filed against the defendants in respect of the revenue sales which was set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the District Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bona fide. But on the other hand, he deliberately did so may be for obvious reason that if he had to withdraw the suit he would have to give notice under Section 80, C.P.C. to the Government, wait for the expiry of the period of notice of two months and thereafter file a fresh suit. To avoid this he though he would taken a chance but that chance boomeranged against him. It is not a case where he prosecuted due to ignorance of law or bona fide mistake nor can it be said that he had misconceived the suit. None of the cases cited by the learned advocate can assist the appellant because in all of them it was either a case of mistake of law on a doubtful point such as in the case of Bishambhur Haldar v. Bonomali Haldar and Others, (ILR (1899) 26 Cal 414 : 3 CWN 233) or ignorance of law.
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0
### Explanation:
the High Court proceeded to consider whether the appellant was entitled to exclude the time taken in the prosecution of the previous suit under Section 14 of the Limitation Act. It was contended before that court that the plaintiff was bona filed in filing his suit and prosecuting it and the appeal, and therefore, he was entitled to exclude that period under Section 14 of the Limitation Act. This contention was negatived with these observations :"From what we have stated above, it will be plain that the appellant took objection to theg of the Government as a party at earliest possible opportunity. The respondents would not take note of that objection. They persisted in their attitude till ultimately the High Court ofn held that the suit will have to fail for theg of the necessary party. A request was made to the High Court to permit the respondents herein to remedy the defect. The learned Judges held that they could not accede to that request and that the suit has to be dismissed as in spite of timely objection raised by the defendant on the ground ofr of parties the plaintiff persisted in proceeding with the suit undertaking to bear the risk of not impleading the sircar.This attitude on the part of the respondents is sufficient to dispose of the question of bona fides against them.Mr. V. V. Raghavan argues that the fact that two Subordinate Courts in the previous litigation had held that there was no need to implead the Government as a party to the suit would itself show that the respondents were acting under bona fide mistake.As we have pointed out earlier the defendants took objection to theg of the necessary party even at the earliest stage. The matter went up to the Travancore High Court. The respondents did not want the High Court to decided the question as to whether the Government was a necessary party or not on the ground that they were prepared to take the risk of their omission to implead the Sircar and on that ground got a dismissal of the revision petition filed by the appellants. Under these circumstances we cannot accept the contention now urged on behalf of the respondents herein that they bona fide instituted the previous suit."The reasons given by the High Court are in our view cogent. Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a court of first instance or in a court of first appeal against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which from the defect of jurisdiction and is prosecuted in good faith in a court which from the defect of jurisdiction or other cause of like nature is unable to entertain it.The appellants advocate points out that under Section 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case the appellant was bona fide in purchasing the suit properties from an auction purchaser who also purchased them in revenue sales bona fide and that without notice to either of them the sale has been set aside which is totally without jurisdiction and injuriously affects the appellant.That the appellant was caught in this predicament may be unfortunate but insofar as the question whether he bona fide prosecuted the earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court. It is clear that no suit for declaration and possession could have been filed against the defendants in respect of the revenue sales which was set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the District Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bona fide. But on the other hand, he deliberately did so may be for obvious reason that if he had to withdraw the suit he would have to give notice under Section 80, C.P.C. to the Government, wait for the expiry of the period of notice of two months and thereafter file a fresh suit. To avoid this he though he would taken a chance but that chance boomeranged against him. It is not a case where he prosecuted due to ignorance of law or bona fide mistake nor can it be said that he had misconceived the suit. None of the cases cited by the learned advocate can assist the appellant because in all of them it was either a case of mistake of law on a doubtful point such as in the case of Bishambhur Haldar v. Bonomali Haldar and Others, (ILR (1899) 26 Cal 414 : 3 CWN 233) or ignorance of law.
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The State of Madras represented by The Collector of Ramanathapuram Vs. Karumuthu Thiagarajan Chettiar | is the fact that the entire area originally granted retains its character as an inam."In so observing Govinda Menon, J. stated that the Court was inclined to agree with the view expressed by Subba Rao, J. in AIR 1953 Mad 246 (P. 25), and the following formulae devised by the learned Judge:"First find out whether original grant was of the whole village. If it is established the next question is whether the confirmation or recognition was of the entire grant or a part of the grant. If the entire grant was confirmed or recognised the process of confirmation or recognition or the fact that different title deeds were issued or the grant was recognised by separate acts should not matter, for in either case the original grant which was of the entire village should be confirmed or recognised by the Government."10. It needs to be emphasized that the Court was not called upon in Bhavnarayanas case, ILR (1954) Mad l16 : (AIR 1954 Mad 415 FB) to deal with a case in which the Inam Commissioner having held that there was a grant of the whole village had confirmed only a part of the village granted. Basheer Ahmed Sayeed, J. observed that it being conceded at the Bar that what was originally granted had been confirmed by the Inam Commissioner and the requirements of S. 3(2)(d) of the Madras Estates Land Act in regard to confirmation or recognition by the Government had been satisfied, there was no point in the contention that the entire village as such had not been confirmed or recognised by the Government when the title deed was granted.11. Venkatarama Aiyar, J. proceeded to enter upon an exhaustive review of the case law and made the observations which are relied upon by the State of Madras. He emphasized that the confirmation is of the act of making a grant and has no relation to the extent of the properties covered by it. That statement is only partially true : as pointed out by Govinda Menon, J. if the totality of the grant is confirmed by the issue even of separate title deeds, the original grant would be deemed confirmed. But the whole grant must be confirmed by one or more title deeds. Venkatararua Aiyar, J. then observed that if the Government was satisfied that the grant was true and made by the proper person, then it was to confirm it, and that there could be no question of a grant being confirmed in part and disaffirmed in part. If this observation (which was for the purpose of deciding the case wholly unnecessary) is intended to convey that in ascertaining whether the Inam village of which the grant has been confirmed is an estate, regard must be had to what was granted by the original conveyance and all subsequent dealings by the grantor or by the confirming authority must be ignored, with respect, the observation cannot be accepted as correct. There is nothing to which our attention has been invited in the provisions of the relevant regulations and the rules framed by the Government which prevented the Inam Commissioner from declining to recognise the title of holders of Inam land in part and recognising the title to the rest. The exercise of the right of confirmation was an incident of sovereignty and in the absence of an obligation imposed by statute, the Inam Commissioner as a representative of the sovereign authodty was not compelled to recognise the rights of all persons in possession of land which was originally granted in Inam.By confirming the grant of a part of the area of the village in favour of some persons, the Commissioner could not be assumed to have confirmed the entire grant. By recognising the title of a holder of land forming part of a village originally granted in Inam, the Inam Commissioner undoubtedly recognised his title derived from the original grantee, but thereby he did not confirm the grant of the village. The confirmation of the grant of the village takes place only when the entirety of the grant is recognised either in a single individual or a group of individuals.12. The enquiry before the Inam Commissioner involved at least two distinct steps :(i) Enquiry as to what was the original grant; and(ii) What are should be confirmed or recoginsed in favour of a claimant. In holding an enquiry into the first step, the Inam Commissioner could not be seeking to confirm or recognise the grant.The Commissioner was thereby laying a foundation for making the order of confirmation or recognition. In assuming that a conclusion on the first automatically resulted in confirmation of the grant the learned Judge obliterated the distinction between the two. In our view the formula devised by Subba Rao, J. in Somasundarams case, AIR 1953 Mad 246 is substantially correct.13. Nistala Seshayya Bhukta v. Vasu Bageyya. ILR (1962) Andh Pra 1 : (AIR 1962 Andh Pra 37 FB) on which reliance was placed by counsel for the State of Madras really fell under explanation (3) in S. 3 (2) and with that explanation we are not concerned in the present appeal. That was a case where a part of the original pre-British grant of the whole village had been resumed by the British Government and what was confirmed was the rest of the grant. It was found that by the time of the Inam enquiry the village minus what was resumed, was understood to be the Inam village and that was confirmed. It was no doubt also held that as the entire area that was available for confirmation was confirmed, the case came within cl. (b) of S. 3 (2). This is not the case before us for here was nothing to prevent the Inam Commissioner from confirming as part of the original grant, the lands in the possession of zamindar of Shivganga; the entire area of the village was available to him for confirmation. We do not think that this case affords any assistance. | 1[ds]7. An Inam village is an "estate" within the meaning of S. 3(2) (d) of the Madras Estates Land Act if the grant was made, confirmed or recognised by the Government notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or theof the grantee or grantees. In the present case the grant was not made by the British Government, it was a grant confirmed or recognised by that Government. Confirmation of the grant of a named village, is within S. 3(2) (d) if some lands had previous to the grant been alienated by the proprietor, and he was by virtue of the alienation incompetent to convey the entire area of the village. That is made explicit by the Explanation which was added by the Madras Estates Land (Amendment) Act, II of 1945.The enquiry before the Inam Commissioner involved at least two distinct stepsEnquiry as to what was the original grant; and(ii) What are should be confirmed or recoginsed in favour of a claimant. In holding an enquiry into the first step, the Inam Commissioner could not be seeking to confirm or recognise the grant.The Commissioner was thereby laying a foundation for making the order of confirmation or recognition. In assuming that a conclusion on the first automatically resulted in confirmation of the grant the learned Judge obliterated the distinction between the two. In our view the formula devised by Subba Rao, J. in Somasundarams case, AIR 1953 Mad 246 is substantially correct.13. Nistala Seshayya Bhukta v. Vasu Bageyya. ILR (1962) Andh Pra 1 : (AIR 1962 Andh Pra 37 FB) on which reliance was placed by counsel for the State of Madras really fell under explanation (3) in S. 3 (2) and with that explanation we are not concerned in the present appeal. That was a case where a part of the originalgrant of the whole village had been resumed by the British Government and what was confirmed was the rest of the grant. It was found that by the time of the Inam enquiry the village minus what was resumed, was understood to be the Inam village and that was confirmed. It was no doubt also held that as the entire area that was available for confirmation was confirmed, the case came within cl. (b) of S. 3 (2). This is not the case before us for here was nothing to prevent the Inam Commissioner from confirming as part of the original grant, the lands in the possession of zamindar of Shivganga; the entire area of the village was available to him for confirmation. We do not think that this case affords any assistance. | 1 | 2,966 | 503 | ### 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:
is the fact that the entire area originally granted retains its character as an inam."In so observing Govinda Menon, J. stated that the Court was inclined to agree with the view expressed by Subba Rao, J. in AIR 1953 Mad 246 (P. 25), and the following formulae devised by the learned Judge:"First find out whether original grant was of the whole village. If it is established the next question is whether the confirmation or recognition was of the entire grant or a part of the grant. If the entire grant was confirmed or recognised the process of confirmation or recognition or the fact that different title deeds were issued or the grant was recognised by separate acts should not matter, for in either case the original grant which was of the entire village should be confirmed or recognised by the Government."10. It needs to be emphasized that the Court was not called upon in Bhavnarayanas case, ILR (1954) Mad l16 : (AIR 1954 Mad 415 FB) to deal with a case in which the Inam Commissioner having held that there was a grant of the whole village had confirmed only a part of the village granted. Basheer Ahmed Sayeed, J. observed that it being conceded at the Bar that what was originally granted had been confirmed by the Inam Commissioner and the requirements of S. 3(2)(d) of the Madras Estates Land Act in regard to confirmation or recognition by the Government had been satisfied, there was no point in the contention that the entire village as such had not been confirmed or recognised by the Government when the title deed was granted.11. Venkatarama Aiyar, J. proceeded to enter upon an exhaustive review of the case law and made the observations which are relied upon by the State of Madras. He emphasized that the confirmation is of the act of making a grant and has no relation to the extent of the properties covered by it. That statement is only partially true : as pointed out by Govinda Menon, J. if the totality of the grant is confirmed by the issue even of separate title deeds, the original grant would be deemed confirmed. But the whole grant must be confirmed by one or more title deeds. Venkatararua Aiyar, J. then observed that if the Government was satisfied that the grant was true and made by the proper person, then it was to confirm it, and that there could be no question of a grant being confirmed in part and disaffirmed in part. If this observation (which was for the purpose of deciding the case wholly unnecessary) is intended to convey that in ascertaining whether the Inam village of which the grant has been confirmed is an estate, regard must be had to what was granted by the original conveyance and all subsequent dealings by the grantor or by the confirming authority must be ignored, with respect, the observation cannot be accepted as correct. There is nothing to which our attention has been invited in the provisions of the relevant regulations and the rules framed by the Government which prevented the Inam Commissioner from declining to recognise the title of holders of Inam land in part and recognising the title to the rest. The exercise of the right of confirmation was an incident of sovereignty and in the absence of an obligation imposed by statute, the Inam Commissioner as a representative of the sovereign authodty was not compelled to recognise the rights of all persons in possession of land which was originally granted in Inam.By confirming the grant of a part of the area of the village in favour of some persons, the Commissioner could not be assumed to have confirmed the entire grant. By recognising the title of a holder of land forming part of a village originally granted in Inam, the Inam Commissioner undoubtedly recognised his title derived from the original grantee, but thereby he did not confirm the grant of the village. The confirmation of the grant of the village takes place only when the entirety of the grant is recognised either in a single individual or a group of individuals.12. The enquiry before the Inam Commissioner involved at least two distinct steps :(i) Enquiry as to what was the original grant; and(ii) What are should be confirmed or recoginsed in favour of a claimant. In holding an enquiry into the first step, the Inam Commissioner could not be seeking to confirm or recognise the grant.The Commissioner was thereby laying a foundation for making the order of confirmation or recognition. In assuming that a conclusion on the first automatically resulted in confirmation of the grant the learned Judge obliterated the distinction between the two. In our view the formula devised by Subba Rao, J. in Somasundarams case, AIR 1953 Mad 246 is substantially correct.13. Nistala Seshayya Bhukta v. Vasu Bageyya. ILR (1962) Andh Pra 1 : (AIR 1962 Andh Pra 37 FB) on which reliance was placed by counsel for the State of Madras really fell under explanation (3) in S. 3 (2) and with that explanation we are not concerned in the present appeal. That was a case where a part of the original pre-British grant of the whole village had been resumed by the British Government and what was confirmed was the rest of the grant. It was found that by the time of the Inam enquiry the village minus what was resumed, was understood to be the Inam village and that was confirmed. It was no doubt also held that as the entire area that was available for confirmation was confirmed, the case came within cl. (b) of S. 3 (2). This is not the case before us for here was nothing to prevent the Inam Commissioner from confirming as part of the original grant, the lands in the possession of zamindar of Shivganga; the entire area of the village was available to him for confirmation. We do not think that this case affords any assistance.
### Response:
1
### Explanation:
7. An Inam village is an "estate" within the meaning of S. 3(2) (d) of the Madras Estates Land Act if the grant was made, confirmed or recognised by the Government notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or theof the grantee or grantees. In the present case the grant was not made by the British Government, it was a grant confirmed or recognised by that Government. Confirmation of the grant of a named village, is within S. 3(2) (d) if some lands had previous to the grant been alienated by the proprietor, and he was by virtue of the alienation incompetent to convey the entire area of the village. That is made explicit by the Explanation which was added by the Madras Estates Land (Amendment) Act, II of 1945.The enquiry before the Inam Commissioner involved at least two distinct stepsEnquiry as to what was the original grant; and(ii) What are should be confirmed or recoginsed in favour of a claimant. In holding an enquiry into the first step, the Inam Commissioner could not be seeking to confirm or recognise the grant.The Commissioner was thereby laying a foundation for making the order of confirmation or recognition. In assuming that a conclusion on the first automatically resulted in confirmation of the grant the learned Judge obliterated the distinction between the two. In our view the formula devised by Subba Rao, J. in Somasundarams case, AIR 1953 Mad 246 is substantially correct.13. Nistala Seshayya Bhukta v. Vasu Bageyya. ILR (1962) Andh Pra 1 : (AIR 1962 Andh Pra 37 FB) on which reliance was placed by counsel for the State of Madras really fell under explanation (3) in S. 3 (2) and with that explanation we are not concerned in the present appeal. That was a case where a part of the originalgrant of the whole village had been resumed by the British Government and what was confirmed was the rest of the grant. It was found that by the time of the Inam enquiry the village minus what was resumed, was understood to be the Inam village and that was confirmed. It was no doubt also held that as the entire area that was available for confirmation was confirmed, the case came within cl. (b) of S. 3 (2). This is not the case before us for here was nothing to prevent the Inam Commissioner from confirming as part of the original grant, the lands in the possession of zamindar of Shivganga; the entire area of the village was available to him for confirmation. We do not think that this case affords any assistance.
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THE STATE OF UTTAR PRADESH & ORS Vs. PREMLATA | viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case. 10. Thus as per the law laid down by this court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased. 10.1 Applying the law laid down by this court in the aforesaid decisions and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the submissions on behalf of the respondent and the interpretation by the Division Bench of the High Court on Rule 5 of Rules 1974, is required to be considered. 10.2 The Division Bench of the High Court in the present case has interpreted Rule 5 of Rules 1974 and has held that suitable post under Rule 5 of the Rules 1974 would mean any post suitable to the qualification of the candidate irrespective of the post held by the deceased employee. The aforesaid interpretation by the Division Bench of the High Court is just opposite to the object and purpose of granting the appointment on compassionate ground. Suitable post has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment. In a given case it may happen that the dependent of the deceased employee who has applied for appointment on compassionate ground is having the educational qualification of Class-II or Class-I post and the deceased employee was working on the post of Class/Grade- IV and/or lower than the post applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post. The aforesaid shall be contrary to the object and purpose of grant of appointment on compassionate ground which as observed hereinabove is to enable the family to tide over the sudden crisis on the death of the bread earner. As observed above, appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet. 10.3 In the present case as observed hereinabove initially the respondent applied for appointment on compassionate ground on the post of Assistant Operator in Police Radio Department. The same was not accepted by the Department and rightly not accepted on the ground that she was not fulfilling requisite eligibility criteria for the post of Assistant Operator. Thereafter the respondent again applied for appointment on the compassionate ground on the post of Workshop Hand. The case of the respondent was considered, however, she failed in the physical test examination, which was required as per the relevant recruitment rules of 2005. Therefore, thereafter she was offered appointment on compassionate ground as Messenger which was equivalent to the post held by the deceased employee. Therefore appellants were justified in offering the appointment to the respondent on the post of Messenger. However, the respondent refused the appointment on such post. 11. In view of the above and for the reasons stated above, the Division Bench of the High Court has misinterpreted and misconstrued Rule 5 of the Rules 1974 and in observing and holding that the suitable post under Rule 5 of the Dying-In- Harness Rules 1974 would mean any post suitable to the qualification of the candidate and the appointment on compassionate ground is to be offered considering the educational qualification of the dependent. As observed hereinabove such an interpretation would defeat the object and purpose of appointment on compassionate ground. | 1[ds]8. While considering the issue involved in the present appeal, the law laid down by this court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision this court in Civil Appeal No.5122 of 2021 in the case of the Director of Treasuries in Karnataka & Anr. vs. V. Somashree, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this court in N.C. Santhosh vs. State of Karnataka and Ors. reported in (2020) 7 SCC 617, this Court has summarized the principle governing the grant of appointment on compassionate ground as under:-(i) that the compassionate appointment is an exception to the general rule;(ii) that no aspirant has a right to compassionate appointment;(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the States policy and/or satisfaction of the eligibility criteria as per the policy;(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.9. As per the law laid down by this court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Article 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.10. Thus as per the law laid down by this court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.10.1 Applying the law laid down by this court in the aforesaid decisions and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the submissions on behalf of the respondent and the interpretation by the Division Bench of the High Court on Rule 5 of Rules 1974, is required to be considered.10.2 The Division Bench of the High Court in the present case has interpreted Rule 5 of Rules 1974 and has held that suitable post under Rule 5 of the Rules 1974 would mean any post suitable to the qualification of the candidate irrespective of the post held by the deceased employee. The aforesaid interpretation by the Division Bench of the High Court is just opposite to the object and purpose of granting the appointment on compassionate ground. Suitable post has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment. In a given case it may happen that the dependent of the deceased employee who has applied for appointment on compassionate ground is having the educational qualification of Class-II or Class-I post and the deceased employee was working on the post of Class/Grade- IV and/or lower than the post applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post. The aforesaid shall be contrary to the object and purpose of grant of appointment on compassionate ground which as observed hereinabove is to enable the family to tide over the sudden crisis on the death of the bread earner. As observed above, appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet.10.3 In the present case as observed hereinabove initially the respondent applied for appointment on compassionate ground on the post of Assistant Operator in Police Radio Department. The same was not accepted by the Department and rightly not accepted on the ground that she was not fulfilling requisite eligibility criteria for the post of Assistant Operator. Thereafter the respondent again applied for appointment on the compassionate ground on the post of Workshop Hand. The case of the respondent was considered, however, she failed in the physical test examination, which was required as per the relevant recruitment rules of 2005. Therefore, thereafter she was offered appointment on compassionate ground as Messenger which was equivalent to the post held by the deceased employee. Therefore appellants were justified in offering the appointment to the respondent on the post of Messenger. However, the respondent refused the appointment on such post.11. In view of the above and for the reasons stated above, the Division Bench of the High Court has misinterpreted and misconstrued Rule 5 of the Rules 1974 and in observing and holding that the suitable post under Rule 5 of the Dying-In- Harness Rules 1974 would mean any post suitable to the qualification of the candidate and the appointment on compassionate ground is to be offered considering the educational qualification of the dependent. As observed hereinabove such an interpretation would defeat the object and purpose of appointment on compassionate ground. | 1 | 4,244 | 1,130 | ### 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:
viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case. 10. Thus as per the law laid down by this court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased. 10.1 Applying the law laid down by this court in the aforesaid decisions and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the submissions on behalf of the respondent and the interpretation by the Division Bench of the High Court on Rule 5 of Rules 1974, is required to be considered. 10.2 The Division Bench of the High Court in the present case has interpreted Rule 5 of Rules 1974 and has held that suitable post under Rule 5 of the Rules 1974 would mean any post suitable to the qualification of the candidate irrespective of the post held by the deceased employee. The aforesaid interpretation by the Division Bench of the High Court is just opposite to the object and purpose of granting the appointment on compassionate ground. Suitable post has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment. In a given case it may happen that the dependent of the deceased employee who has applied for appointment on compassionate ground is having the educational qualification of Class-II or Class-I post and the deceased employee was working on the post of Class/Grade- IV and/or lower than the post applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post. The aforesaid shall be contrary to the object and purpose of grant of appointment on compassionate ground which as observed hereinabove is to enable the family to tide over the sudden crisis on the death of the bread earner. As observed above, appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet. 10.3 In the present case as observed hereinabove initially the respondent applied for appointment on compassionate ground on the post of Assistant Operator in Police Radio Department. The same was not accepted by the Department and rightly not accepted on the ground that she was not fulfilling requisite eligibility criteria for the post of Assistant Operator. Thereafter the respondent again applied for appointment on the compassionate ground on the post of Workshop Hand. The case of the respondent was considered, however, she failed in the physical test examination, which was required as per the relevant recruitment rules of 2005. Therefore, thereafter she was offered appointment on compassionate ground as Messenger which was equivalent to the post held by the deceased employee. Therefore appellants were justified in offering the appointment to the respondent on the post of Messenger. However, the respondent refused the appointment on such post. 11. In view of the above and for the reasons stated above, the Division Bench of the High Court has misinterpreted and misconstrued Rule 5 of the Rules 1974 and in observing and holding that the suitable post under Rule 5 of the Dying-In- Harness Rules 1974 would mean any post suitable to the qualification of the candidate and the appointment on compassionate ground is to be offered considering the educational qualification of the dependent. As observed hereinabove such an interpretation would defeat the object and purpose of appointment on compassionate ground.
### Response:
1
### Explanation:
of Treasuries in Karnataka & Anr. vs. V. Somashree, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this court in N.C. Santhosh vs. State of Karnataka and Ors. reported in (2020) 7 SCC 617, this Court has summarized the principle governing the grant of appointment on compassionate ground as under:-(i) that the compassionate appointment is an exception to the general rule;(ii) that no aspirant has a right to compassionate appointment;(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the States policy and/or satisfaction of the eligibility criteria as per the policy;(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.9. As per the law laid down by this court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Article 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.10. Thus as per the law laid down by this court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.10.1 Applying the law laid down by this court in the aforesaid decisions and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the submissions on behalf of the respondent and the interpretation by the Division Bench of the High Court on Rule 5 of Rules 1974, is required to be considered.10.2 The Division Bench of the High Court in the present case has interpreted Rule 5 of Rules 1974 and has held that suitable post under Rule 5 of the Rules 1974 would mean any post suitable to the qualification of the candidate irrespective of the post held by the deceased employee. The aforesaid interpretation by the Division Bench of the High Court is just opposite to the object and purpose of granting the appointment on compassionate ground. Suitable post has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment. In a given case it may happen that the dependent of the deceased employee who has applied for appointment on compassionate ground is having the educational qualification of Class-II or Class-I post and the deceased employee was working on the post of Class/Grade- IV and/or lower than the post applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post. The aforesaid shall be contrary to the object and purpose of grant of appointment on compassionate ground which as observed hereinabove is to enable the family to tide over the sudden crisis on the death of the bread earner. As observed above, appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet.10.3 In the present case as observed hereinabove initially the respondent applied for appointment on compassionate ground on the post of Assistant Operator in Police Radio Department. The same was not accepted by the Department and rightly not accepted on the ground that she was not fulfilling requisite eligibility criteria for the post of Assistant Operator. Thereafter the respondent again applied for appointment on the compassionate ground on the post of Workshop Hand. The case of the respondent was considered, however, she failed in the physical test examination, which was required as per the relevant recruitment rules of 2005. Therefore, thereafter she was offered appointment on compassionate ground as Messenger which was equivalent to the post held by the deceased employee. Therefore appellants were justified in offering the appointment to the respondent on the post of Messenger. However, the respondent refused the appointment on such post.11. In view of the above and for the reasons stated above, the Division Bench of the High Court has misinterpreted and misconstrued Rule 5 of the Rules 1974 and in observing and holding that the suitable post under Rule 5 of the Dying-In- Harness Rules 1974 would mean any post suitable to the qualification of the candidate and the appointment on compassionate ground is to be offered considering the educational qualification of the dependent. As observed hereinabove such an interpretation would defeat the object and purpose of appointment on compassionate ground.
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Bank Of Baroda Vs. Rajender Pal Soni | is liable to take over the services of the appellant ? If that finding is recorded in favour of the respondent, necessarily the suit of the respondent would stand maintainable. Section 45 of the Act envisages the power of the Reserve Bank to apply to the Central Government for suspension of the business of a Banking Company and prepare a scheme for reconstitution or amalgamation. Admittedly, the Traders Bank was amalgamated with the appellant - Bank by exercise of the power under sub-section (1) read with sub-section (2) of Section 45 of the Act. The sanction in that behalf has been accorded by the Central Government in the scheme under sub-section (7). As seen, clause [10] of the scheme envisages that employees existing as on November 20, 1987 in the transferor bank, viz., the Traders Bank so taken over, shall become employees of the appellant-Bank. Admittedly, the respondent was not in service as on that date. Even no suit or proceedings was pending against the Traders Bank as on the date. Under those circumstances, the question arises: whether the suit is maintainable ? This Court in Chairman, Canara Bank, Bangalore vs. M.S. Jasra & Ors., 1994(4) SCT 349(SC) : AIR 1992 SC 1100 in paragraph 9, has considered the effect of sub-sections (4) & (5) of Section 45 of the Act and of the scheme framed thereunder which reads and held as under: "9. Sub-section (5) then specifies the provisions which may be made in such scheme. It is Cl. (i) and the provisos thereunder of sub-section (5) with which we are concerned. The opening words in sub-section (5) are: `The scheme aforesaid may contain provisions for all or any of the following matters.... It is clear that the scheme so framed under sub-section (4) may contain provisions for all or any of the matters specified in sub-section (5) so that it enables all or any of the specified matters to be provided in the scheme prepared under sub-section (4) and the matters specified in the several clauses in sub-section (5) do not automatically get incorporated in such scheme unless the scheme specifically includes any such matter. It means that the matter specified in Cl. (i) of sub-section (5) is not an invariable term to be read in such scheme framed under sub-section (4) for amalgamation of the banking company unless it is incorporated specifically in the scheme so prepared. Thus, such a scheme may or may not contain provisions for the continuance of the services of all the employees of the banking company in the transferee bank as is specified in Cl. (i). However, if the scheme does provide for this matter,then the continuance of the services of the employees of the banking company in the transferee bank as provided in Cl. (i) is subject to the requirements of the proviso thereunder. In other words, it is not necessary that every scheme of amalgamation framed under sub-section (4) must provide for continuance of services of all the employees of the banking company in the transferee bank, but where such a provision is made, it must contain a provision as required by the provisos in CI. (i). This is clear from the use of the word `may in the opening words of sub-sec. (5) and the word `shall in the proviso. In effect it means that where the scheme provides for continuance of the services of all the employees of the banking company in the transferee bank at the same remuneration and on the same terms and conditions of service which they were getting or, as the case may be, by which they were being governed immediately before the date of the order of moratorium, then the scheme must contain a provision that the transferee bank shall pay or grant not later than the expiry of the period of three years from the date on which the scheme is sanctioned by the Central Government to the said employees the same remuneration and the same terms and conditions of service as are applicable to the other employees of corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees being the same as or equivalent to those of such other employees of the transferee bank." 7. In U.P. Electricity Board, Lucknow through its Chairman and another vs. Radhey Mohan Verma [1994 Supp. (2) SCC 356] , similar question had arisen under the Electricity Act. It was held that the Board and amalgamated Company are entitled under that Act to enter into an agreement. Employees existing as on that date and against whom disciplinary proceedings were pending on that date could not be deemed to be employees of the Board. In the absence of any such agreement, it was held that by operation of Section 6(1)(ii) of the Electricity Act, the Board was not bound to take such an employee into the service. 8. In Rashtriya Mill Mazdoor Sangh vs. National Textiles Corporation, South Maharashtra Ltd. amd Ors. [1996 (1) SCC 313 ] similar question had arisen for consideration. This Court held that the liability to pay gratuity which became payable to a former employee prior to the taking over of the textile Company was of the textile company and not of the custodian. 9. It is contended by the learned counsel for the respondent that under the Scheme, the assets and liabilities are to be taken over by the appellant-Bank and, therefore, the employment of the appellant is one of the liabilities. Judicial review being one of the basic features of the Constitution, he cannot be prevented to avail of the judicial review against the appellant-Bank. We find no force in the contention. As far as service conditions are concerned, in view of the specific provision in the Scheme contained in paras 3 and 10 of the notification arrears of salary is a liability to be discharged by the transferor-Bank and not of the appellant-Bank. Under these circumstances, the suits are clearly not maintainable. | 1[ds]9. It is contended by the learned counsel for the respondent that under the Scheme, the assets and liabilities are to be taken over by theand, therefore, the employment of the appellant is one of the liabilities. Judicial review being one of the basic features of the Constitution, he cannot be prevented to avail of the judicial review against theWe find no force in the contention. As far as service conditions are concerned, in view of the specific provision in the Scheme contained in paras 3 and 10 of the notification arrears of salary is a liability to be discharged by theand not of theUnder these circumstances, the suits are clearly not maintainable. | 1 | 1,734 | 128 | ### 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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is liable to take over the services of the appellant ? If that finding is recorded in favour of the respondent, necessarily the suit of the respondent would stand maintainable. Section 45 of the Act envisages the power of the Reserve Bank to apply to the Central Government for suspension of the business of a Banking Company and prepare a scheme for reconstitution or amalgamation. Admittedly, the Traders Bank was amalgamated with the appellant - Bank by exercise of the power under sub-section (1) read with sub-section (2) of Section 45 of the Act. The sanction in that behalf has been accorded by the Central Government in the scheme under sub-section (7). As seen, clause [10] of the scheme envisages that employees existing as on November 20, 1987 in the transferor bank, viz., the Traders Bank so taken over, shall become employees of the appellant-Bank. Admittedly, the respondent was not in service as on that date. Even no suit or proceedings was pending against the Traders Bank as on the date. Under those circumstances, the question arises: whether the suit is maintainable ? This Court in Chairman, Canara Bank, Bangalore vs. M.S. Jasra & Ors., 1994(4) SCT 349(SC) : AIR 1992 SC 1100 in paragraph 9, has considered the effect of sub-sections (4) & (5) of Section 45 of the Act and of the scheme framed thereunder which reads and held as under: "9. Sub-section (5) then specifies the provisions which may be made in such scheme. It is Cl. (i) and the provisos thereunder of sub-section (5) with which we are concerned. The opening words in sub-section (5) are: `The scheme aforesaid may contain provisions for all or any of the following matters.... It is clear that the scheme so framed under sub-section (4) may contain provisions for all or any of the matters specified in sub-section (5) so that it enables all or any of the specified matters to be provided in the scheme prepared under sub-section (4) and the matters specified in the several clauses in sub-section (5) do not automatically get incorporated in such scheme unless the scheme specifically includes any such matter. It means that the matter specified in Cl. (i) of sub-section (5) is not an invariable term to be read in such scheme framed under sub-section (4) for amalgamation of the banking company unless it is incorporated specifically in the scheme so prepared. Thus, such a scheme may or may not contain provisions for the continuance of the services of all the employees of the banking company in the transferee bank as is specified in Cl. (i). However, if the scheme does provide for this matter,then the continuance of the services of the employees of the banking company in the transferee bank as provided in Cl. (i) is subject to the requirements of the proviso thereunder. In other words, it is not necessary that every scheme of amalgamation framed under sub-section (4) must provide for continuance of services of all the employees of the banking company in the transferee bank, but where such a provision is made, it must contain a provision as required by the provisos in CI. (i). This is clear from the use of the word `may in the opening words of sub-sec. (5) and the word `shall in the proviso. In effect it means that where the scheme provides for continuance of the services of all the employees of the banking company in the transferee bank at the same remuneration and on the same terms and conditions of service which they were getting or, as the case may be, by which they were being governed immediately before the date of the order of moratorium, then the scheme must contain a provision that the transferee bank shall pay or grant not later than the expiry of the period of three years from the date on which the scheme is sanctioned by the Central Government to the said employees the same remuneration and the same terms and conditions of service as are applicable to the other employees of corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees being the same as or equivalent to those of such other employees of the transferee bank." 7. In U.P. Electricity Board, Lucknow through its Chairman and another vs. Radhey Mohan Verma [1994 Supp. (2) SCC 356] , similar question had arisen under the Electricity Act. It was held that the Board and amalgamated Company are entitled under that Act to enter into an agreement. Employees existing as on that date and against whom disciplinary proceedings were pending on that date could not be deemed to be employees of the Board. In the absence of any such agreement, it was held that by operation of Section 6(1)(ii) of the Electricity Act, the Board was not bound to take such an employee into the service. 8. In Rashtriya Mill Mazdoor Sangh vs. National Textiles Corporation, South Maharashtra Ltd. amd Ors. [1996 (1) SCC 313 ] similar question had arisen for consideration. This Court held that the liability to pay gratuity which became payable to a former employee prior to the taking over of the textile Company was of the textile company and not of the custodian. 9. It is contended by the learned counsel for the respondent that under the Scheme, the assets and liabilities are to be taken over by the appellant-Bank and, therefore, the employment of the appellant is one of the liabilities. Judicial review being one of the basic features of the Constitution, he cannot be prevented to avail of the judicial review against the appellant-Bank. We find no force in the contention. As far as service conditions are concerned, in view of the specific provision in the Scheme contained in paras 3 and 10 of the notification arrears of salary is a liability to be discharged by the transferor-Bank and not of the appellant-Bank. Under these circumstances, the suits are clearly not maintainable.
### Response:
1
### Explanation:
9. It is contended by the learned counsel for the respondent that under the Scheme, the assets and liabilities are to be taken over by theand, therefore, the employment of the appellant is one of the liabilities. Judicial review being one of the basic features of the Constitution, he cannot be prevented to avail of the judicial review against theWe find no force in the contention. As far as service conditions are concerned, in view of the specific provision in the Scheme contained in paras 3 and 10 of the notification arrears of salary is a liability to be discharged by theand not of theUnder these circumstances, the suits are clearly not maintainable.
|
MURUGAN Vs. THE STATE OF TAMIL NADU | findings and would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc. 21. We, however, made endeavour to peruse the evidence with a view to find out as to whether the concurrent findings of both the Courts below have any kind of infirmity or/and whether the concurrent findings are capable of being legally and factually sustainable or need to be reversed. Having gone through the evidence, we are of the view that the findings are legally and factually sustainable in law.22. In our considered opinion, the two Courts below have rightly held that the appellants conviction was based on circumstantial evidence which, in this case, the prosecution was able to prove it by adducing evidence. In other words, we also find that the prosecution was able to prove the chain of circumstances/events appearing against the appellant without any break therein and hence the appellant?s conviction deserves to be upheld.23. On perusal of the evidence, we find that the prosecution examined three witnesses (PW-1, PW-2 and PW-3) to prove material circumstances and the chain of events against the appellant which first included the motive behind the commission of the crime followed by the manner in which the incident took place leading to the death of Murugan.24. The motive, according to the prosecution, was that Kumar had a grudge against the deceased because he was not agreeable to the Kumars proposal to marry his daughter-Geetha. This was proved with the evidence of PWs-1, 2 and 3. It was believed by the two Courts below and, in our opinion, rightly. 25. The prosecution then proved that the appellant along with Kumar had gone to the house of the deceased for inviting him for dinner at Kumars house on the same night. The deceased accepted the invitation and went to Kumars house to have dinner with Kumar and the appellant. 26. It was then proved that Geetha (PW-1) had gone to Kumars house at around 11 P.M. to see why her father did not return to his house and on reaching there, she found all the three sitting on iron cot and were having dinner. As per post mortem report, it was proved that Murugan died between 11 P.M. and 12 P.M. the same night. 27. In our opinion, when the appellant was sitting in the company of the deceased (Murugan) till 11 P.M. along with Kumar in his house and had dinner with Murugan and Kumar and immediately thereafter Murugan died, the appellant in cross-examination of PWs-1,2 and 3 was not able to elicit anything to discredit the evidence of the abovesaid three witnesses and to disprove the circumstances deposed against him.28. That apart, in our opinion, it was necessary for the appellant to have explained the aforementioned circumstances appearing against him in the proceedings under Section 313 of the Code. The appellant, however, failed to explain any circumstances and denied his involvement in the crime.29. We find from the evidence eight circumstances appearing against the appellant. These circumstances are: First motive was against the deceased due to his not agreeing to the proposal of marriage of Kumar with his daughter; Second, the appellant and Kumar, both being the cousins, knew each other very well; Third, both went together to the house of the deceased to invite him for a dinner at Kumar?s house; Fourth, all the three had dinner together at Kumar?s house; Fifth, Murugan died immediately after dinner; Sixth, Kumar gave his confessional statement; Seventh, recovery of weapon and cloths at the instance of Kumar; and Eighth, the dead body was found lying near iron cot where Murugan(deceased) had last dinner with Kumar and the appellant.30. In our view, the aforementioned eight circumstances do constitute a chain of events against the appellant and lead to draw a strong conclusion against the appellant and Kumar for having committed the murder of Murugan.31. In our view, it clearly establishes that both (Kumar and the appellant) had a common intention to eliminate Murugan. In our view, there could be no other person other than the appellant and Kumar, who committed the crime in question.32. A theory of "accused last seen in the company of the deceased" is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged. In this case, it was rightly held by the two Courts below against the appellant and we find no good ground to disturb this finding.33. We are not impressed by the submission of the learned counsel for the appellant when she argued that Kumar (main accused) having died without facing the trial, the present appellant is entitled for a clean acquittal because nothing now survives against the appellant after Kumars death for appellant?s prosecution. We do not agree with this submission.34. In our view, death of Kumar was of no significance so far as the appellant?s prosecution is concerned. The reason being that this was a case of common intention of the two accused persons to eliminate Murugan and the appellant was one of the accused persons, who was found actively participating in the crime till last along with the other accused, who died.35. In our view, the two Courts below, therefore, were right in holding the appellant guilty of commission of the offences in question by properly appreciating the ocular evidence of the prosecution witness notwithstanding the death of the co-accused, which was of no relevance for deciding the involvement of the appellant in commission of crime.36. We, therefore, find no good ground to take a different view than what is taken by the two Courts below and concur with their reasoning and conclusion with our additional reasoning elaborated above. | 0[ds]18. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.We, however, made endeavour to peruse the evidence with a view to find out as to whether the concurrent findings of both the Courts below have any kind of infirmity or/and whether the concurrent findings are capable of being legally and factually sustainable or need to be reversed. Having gone through the evidence, we are of the view that the findings are legally and factually sustainable in law.22. In our considered opinion, the two Courts below have rightly held that theconviction was based on circumstantial evidence which, in this case, the prosecution was able to prove it by adducing evidence. In other words, we also find that the prosecution was able to prove the chain of circumstances/events appearing against the appellant without any break therein and hence the appellant?s conviction deserves to be upheld.23. On perusal of the evidence, we find that the prosecution examined three witnesses3) to prove material circumstances and the chain of events against the appellant which first included the motive behind the commission of the crime followed by the manner in which the incident took place leading to the death of Murugan.24. The motive, according to the prosecution, was that Kumar had a grudge against the deceased because he was not agreeable to theproposal to marry hisThis was proved with the evidence of2 and 3. It was believed by the two Courts below and, in our opinion, rightly.In our opinion, when the appellant was sitting in the company of the deceased (Murugan) till 11 P.M. along with Kumar in his house and had dinner with Murugan and Kumar and immediately thereafter Murugan died, the appellant in,2 and 3 was not able to elicit anything to discredit the evidence of the abovesaid three witnesses and to disprove the circumstances deposed against him.28. That apart, in our opinion, it was necessary for the appellant to have explained the aforementioned circumstances appearing against him in the proceedings under Section 313 of the Code. The appellant, however, failed to explain any circumstances and denied his involvement in the crime.29. We find from the evidence eight circumstances appearing against the appellant. These circumstances are: First motive was against the deceased due to his not agreeing to the proposal of marriage of Kumar with his daughter; Second, the appellant and Kumar, both being the cousins, knew each other very well; Third, both went together to the house of the deceased to invite him for a dinner at Kumar?s house; Fourth, all the three had dinner together at Kumar?s house; Fifth, Murugan died immediately after dinner; Sixth, Kumar gave his confessional statement; Seventh, recovery of weapon and cloths at the instance of Kumar; and Eighth, the dead body was found lying near iron cot where Murugan(deceased) had last dinner with Kumar and the appellant.30. In our view, the aforementioned eight circumstances do constitute a chain of events against the appellant and lead to draw a strong conclusion against the appellant and Kumar for having committed the murder of Murugan.31. In our view, it clearly establishes that both (Kumar and the appellant) had a common intention to eliminate Murugan. In our view, there could be no other person other than the appellant and Kumar, who committed the crime in question.32. A theory of "accused last seen in the company of the deceased" is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged. In this case, it was rightly held by the two Courts below against the appellant and we find no good ground to disturb this finding.33. We are not impressed by the submission of the learned counsel for the appellant when she argued that Kumar (main accused) having died without facing the trial, the present appellant is entitled for a clean acquittal because nothing now survives against the appellant afterdeath for appellant?s prosecution. We do not agree with this submission.34. In our view, death of Kumar was of no significance so far as the appellant?s prosecution is concerned. The reason being that this was a case of common intention of the two accused persons to eliminate Murugan and the appellant was one of the accused persons, who was found actively participating in the crime till last along with the other accused, who died.35. In our view, the two Courts below, therefore, were right in holding the appellant guilty of commission of the offences in question by properly appreciating the ocular evidence of the prosecution witness notwithstanding the death of thewhich was of no relevance for deciding the involvement of the appellant in commission of crime.36. We, therefore, find no good ground to take a different view than what is taken by the two Courts below and concur with their reasoning and conclusion with our additional reasoning elaborated above. | 0 | 2,388 | 944 | ### 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:
findings and would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc. 21. We, however, made endeavour to peruse the evidence with a view to find out as to whether the concurrent findings of both the Courts below have any kind of infirmity or/and whether the concurrent findings are capable of being legally and factually sustainable or need to be reversed. Having gone through the evidence, we are of the view that the findings are legally and factually sustainable in law.22. In our considered opinion, the two Courts below have rightly held that the appellants conviction was based on circumstantial evidence which, in this case, the prosecution was able to prove it by adducing evidence. In other words, we also find that the prosecution was able to prove the chain of circumstances/events appearing against the appellant without any break therein and hence the appellant?s conviction deserves to be upheld.23. On perusal of the evidence, we find that the prosecution examined three witnesses (PW-1, PW-2 and PW-3) to prove material circumstances and the chain of events against the appellant which first included the motive behind the commission of the crime followed by the manner in which the incident took place leading to the death of Murugan.24. The motive, according to the prosecution, was that Kumar had a grudge against the deceased because he was not agreeable to the Kumars proposal to marry his daughter-Geetha. This was proved with the evidence of PWs-1, 2 and 3. It was believed by the two Courts below and, in our opinion, rightly. 25. The prosecution then proved that the appellant along with Kumar had gone to the house of the deceased for inviting him for dinner at Kumars house on the same night. The deceased accepted the invitation and went to Kumars house to have dinner with Kumar and the appellant. 26. It was then proved that Geetha (PW-1) had gone to Kumars house at around 11 P.M. to see why her father did not return to his house and on reaching there, she found all the three sitting on iron cot and were having dinner. As per post mortem report, it was proved that Murugan died between 11 P.M. and 12 P.M. the same night. 27. In our opinion, when the appellant was sitting in the company of the deceased (Murugan) till 11 P.M. along with Kumar in his house and had dinner with Murugan and Kumar and immediately thereafter Murugan died, the appellant in cross-examination of PWs-1,2 and 3 was not able to elicit anything to discredit the evidence of the abovesaid three witnesses and to disprove the circumstances deposed against him.28. That apart, in our opinion, it was necessary for the appellant to have explained the aforementioned circumstances appearing against him in the proceedings under Section 313 of the Code. The appellant, however, failed to explain any circumstances and denied his involvement in the crime.29. We find from the evidence eight circumstances appearing against the appellant. These circumstances are: First motive was against the deceased due to his not agreeing to the proposal of marriage of Kumar with his daughter; Second, the appellant and Kumar, both being the cousins, knew each other very well; Third, both went together to the house of the deceased to invite him for a dinner at Kumar?s house; Fourth, all the three had dinner together at Kumar?s house; Fifth, Murugan died immediately after dinner; Sixth, Kumar gave his confessional statement; Seventh, recovery of weapon and cloths at the instance of Kumar; and Eighth, the dead body was found lying near iron cot where Murugan(deceased) had last dinner with Kumar and the appellant.30. In our view, the aforementioned eight circumstances do constitute a chain of events against the appellant and lead to draw a strong conclusion against the appellant and Kumar for having committed the murder of Murugan.31. In our view, it clearly establishes that both (Kumar and the appellant) had a common intention to eliminate Murugan. In our view, there could be no other person other than the appellant and Kumar, who committed the crime in question.32. A theory of "accused last seen in the company of the deceased" is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged. In this case, it was rightly held by the two Courts below against the appellant and we find no good ground to disturb this finding.33. We are not impressed by the submission of the learned counsel for the appellant when she argued that Kumar (main accused) having died without facing the trial, the present appellant is entitled for a clean acquittal because nothing now survives against the appellant after Kumars death for appellant?s prosecution. We do not agree with this submission.34. In our view, death of Kumar was of no significance so far as the appellant?s prosecution is concerned. The reason being that this was a case of common intention of the two accused persons to eliminate Murugan and the appellant was one of the accused persons, who was found actively participating in the crime till last along with the other accused, who died.35. In our view, the two Courts below, therefore, were right in holding the appellant guilty of commission of the offences in question by properly appreciating the ocular evidence of the prosecution witness notwithstanding the death of the co-accused, which was of no relevance for deciding the involvement of the appellant in commission of crime.36. We, therefore, find no good ground to take a different view than what is taken by the two Courts below and concur with their reasoning and conclusion with our additional reasoning elaborated above.
### Response:
0
### Explanation:
18. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.We, however, made endeavour to peruse the evidence with a view to find out as to whether the concurrent findings of both the Courts below have any kind of infirmity or/and whether the concurrent findings are capable of being legally and factually sustainable or need to be reversed. Having gone through the evidence, we are of the view that the findings are legally and factually sustainable in law.22. In our considered opinion, the two Courts below have rightly held that theconviction was based on circumstantial evidence which, in this case, the prosecution was able to prove it by adducing evidence. In other words, we also find that the prosecution was able to prove the chain of circumstances/events appearing against the appellant without any break therein and hence the appellant?s conviction deserves to be upheld.23. On perusal of the evidence, we find that the prosecution examined three witnesses3) to prove material circumstances and the chain of events against the appellant which first included the motive behind the commission of the crime followed by the manner in which the incident took place leading to the death of Murugan.24. The motive, according to the prosecution, was that Kumar had a grudge against the deceased because he was not agreeable to theproposal to marry hisThis was proved with the evidence of2 and 3. It was believed by the two Courts below and, in our opinion, rightly.In our opinion, when the appellant was sitting in the company of the deceased (Murugan) till 11 P.M. along with Kumar in his house and had dinner with Murugan and Kumar and immediately thereafter Murugan died, the appellant in,2 and 3 was not able to elicit anything to discredit the evidence of the abovesaid three witnesses and to disprove the circumstances deposed against him.28. That apart, in our opinion, it was necessary for the appellant to have explained the aforementioned circumstances appearing against him in the proceedings under Section 313 of the Code. The appellant, however, failed to explain any circumstances and denied his involvement in the crime.29. We find from the evidence eight circumstances appearing against the appellant. These circumstances are: First motive was against the deceased due to his not agreeing to the proposal of marriage of Kumar with his daughter; Second, the appellant and Kumar, both being the cousins, knew each other very well; Third, both went together to the house of the deceased to invite him for a dinner at Kumar?s house; Fourth, all the three had dinner together at Kumar?s house; Fifth, Murugan died immediately after dinner; Sixth, Kumar gave his confessional statement; Seventh, recovery of weapon and cloths at the instance of Kumar; and Eighth, the dead body was found lying near iron cot where Murugan(deceased) had last dinner with Kumar and the appellant.30. In our view, the aforementioned eight circumstances do constitute a chain of events against the appellant and lead to draw a strong conclusion against the appellant and Kumar for having committed the murder of Murugan.31. In our view, it clearly establishes that both (Kumar and the appellant) had a common intention to eliminate Murugan. In our view, there could be no other person other than the appellant and Kumar, who committed the crime in question.32. A theory of "accused last seen in the company of the deceased" is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged. In this case, it was rightly held by the two Courts below against the appellant and we find no good ground to disturb this finding.33. We are not impressed by the submission of the learned counsel for the appellant when she argued that Kumar (main accused) having died without facing the trial, the present appellant is entitled for a clean acquittal because nothing now survives against the appellant afterdeath for appellant?s prosecution. We do not agree with this submission.34. In our view, death of Kumar was of no significance so far as the appellant?s prosecution is concerned. The reason being that this was a case of common intention of the two accused persons to eliminate Murugan and the appellant was one of the accused persons, who was found actively participating in the crime till last along with the other accused, who died.35. In our view, the two Courts below, therefore, were right in holding the appellant guilty of commission of the offences in question by properly appreciating the ocular evidence of the prosecution witness notwithstanding the death of thewhich was of no relevance for deciding the involvement of the appellant in commission of crime.36. We, therefore, find no good ground to take a different view than what is taken by the two Courts below and concur with their reasoning and conclusion with our additional reasoning elaborated above.
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Nirma Industries Ltd. Vs. Securities & Exchange Board Of India | offer are in place;(d) the public announcement of offer is made in terms of the Regulations;(e) his shareholding, if any in the target company is disclosed in the public announcement and the letter of offer. 70. Regulation 24(2) mandates that the merchant banker shall furnish to the Board a due diligence certificate which shall accompany the draft letter of offer. The aforesaid regulation clearly indicates that any enquiries and any due diligence that has to be made by the acquirer have to be made prior to the public announcement. It is, therefore, not possible to accept the submission of Mr. Shyam Divan that the appellants are to be permitted to withdraw the public announcement based on the discovery of certain facts subsequent to the making of the public announcement. In such circumstances, in our opinion, the judgments cited by Mr. Shyam Divan are of no relevance. Delay: 71. Mr. Shyam Divan has also indicated that it was because of the unexplained delay of 8 months on the part of SEBI to process the Letter of Offer of the appellants that the prices for the shares of the target company went down from Rs. 18.60 to Rs. 8.56, during this period. This would impose huge financial liability on the appellants. This submission is also wholly misconceived. The submission was not made before SAT and it has been raised for the first time, in the submissions made by Mr. Shyam Divan. In fact, the ground is not even pleaded in the grounds of appeal. The submission is mentioned only in the list of dates. Since, we are considering a statutory appeal under Section 15Z of the SEBI Act, the same cannot be permitted to be raised in this Court for the first time, unless the submission goes to the very root of the matter. This apart, even on merit, we find that the submission is misconceived. Regulation 18(1) and (2) of the SEBI Takeover Code reads thus:- "18. Submission of letter of offer to the Board –(1) Within fourteen days from the date of public announcement made under regulation 10, 11 or 12 as the case may be, the acquirer shall, through its merchant banker, file with the Board, the draft of the letter of offer containing disclosures as specified by the Board.(2) The letter of offer shall be dispatched to the shareholders not earlier than 21 days from its submission to the Board under sub-regulation (1):Provided that if, within 21 days from the date of submission of the letter of offer, the Board specifies changes, if any, in the letter of offer (without being under any obligation to do so), the merchant banker and the acquirer shall carry out such changes before the letter of offer is dispatched to the shareholders :[Provided further that if the disclosures in the draft letter of offer are inadequate or the Board has received any complaint or has initiated any enquiry or investigation in respect of the public offer, the Board may call for revised letter of offer with or without rescheduling the date of opening or closing of the offer and may offer its comments to the revised letter of offer within seven working days of filing of such revised letter of offer.]” 72. A perusal of the aforesaid regulation clearly shows that the acquirer is required to file the draft letter of offer containing disclosures as specified by the Board within a period of 14 days from the date of public announcement. Thereafter, letter of offer has to be dispatched to the shareholders not earlier than 21 days from its submission to the Board. Within 21 days, the Board is required to specify changes if any, that ought to be made in the letter of offer. The merchant banker and the acquirer have then to carry out such changes before the letter of offer is dispatched to the shareholders. But there is no obligation to do so. Under the second proviso, the Board may call for revised letter of offer in case it finds that the disclosures in the draft letter of offer are inadequate or the Board has received any complaint or has initiated any enquiry or investigation in respect of the public offer. It is important to notice that in the first proviso the Board does not have any obligation to specify any change in the draft letter of offer within a period of 21 days. In the present case, in fact, the Board had not specified any changes within 21 days. We have already noticed earlier that the letter of offer was lacking and deficient in detail. The appellants themselves were taking time to submit details called for, by their merchant bankers through various letters between 08.08.2005 to 20.3.2006. We have already noticed the repeated advice given by the merchant banker to enhance the issue size of the open offer and to comply with other requirements of the Takeover Regulations. The appellants, in fact, were prevaricating and did not agree with the interpretation placed on Regulation 27(1) (d) by the Merchant Banker. We, therefore, reject the submission of Mr. Shyam Divan that there was delay on the part of SEBI in approving the draft letter of offer. Court may direct fresh valuation: 73. Lastly, Mr. Shyam Divan has submitted that even if the appellants were not to be permitted to withdraw the public offer, the Court ought to appoint an independent valuer and direct a fresh valuation to be made on the basis of principles contained in Regulation 20(5) of the Takeover Regulations. Such a valuation, according to Mr. Shyam Divan, would be justified in the light of the foregoing submissions. We are not at all impressed by the aforesaid submission. The formula given in Regulation 20 would have no applicability in the facts and circumstances of this case. The determination of the lowest price under Regulation 20 would be at a stage prior to the making of the public announcement and not thereafter. 74. In view of the aforesaid, | 0[ds]We are inclined to agree with the submission made by Mr. Venugopal that the appellants cannot be permitted to wriggle out of the obligation of a public offer under the Takeover Regulation. Permitting them to do so would deprive the ordinary shareholders of their valuable right to have an exit option under the aforesaid regulations. The SEBI Regulations are designed to ensure that public announcement is not made by way of speculation and to protect the interest of the other shareholders. Very solemn obligations are cast on the merchant banker under Regulation 24(1) to ensure thatthe acquirer is able to implement the offer;(b) the provision relating to Escrow account referred to in Regulation 28 has been made;(c) firm arrangements for funds and money for payment through verifiable means to fulfil the obligations under the offer are in place;(d) the public announcement of offer is made in terms of the Regulations;(e) his shareholding, if any in the target company is disclosed in the public announcement and the letter ofperusal of the aforesaid regulation clearly shows that the acquirer is required to file the draft letter of offer containing disclosures as specified by the Board within a period of 14 days from the date of public announcement. Thereafter, letter of offer has to be dispatched to the shareholders not earlier than 21 days from its submission to the Board. Within 21 days, the Board is required to specify changes if any, that ought to be made in the letter of offer. The merchant banker and the acquirer have then to carry out such changes before the letter of offer is dispatched to the shareholders. But there is no obligation to do so. Under the second proviso, the Board may call for revised letter of offer in case it finds that the disclosures in the draft letter of offer are inadequate or the Board has received any complaint or has initiated any enquiry or investigation in respect of the public offer. It is important to notice that in the first proviso the Board does not have any obligation to specify any change in the draft letter of offer within a period of 21 days. In the present case, in fact, the Board had not specified any changes within 21 days. We have already noticed earlier that the letter of offer was lacking and deficient in detail. The appellants themselves were taking time to submit details called for, by their merchant bankers through various letters between 08.08.2005 to 20.3.2006. We have already noticed the repeated advice given by the merchant banker to enhance the issue size of the open offer and to comply with other requirements of the Takeover Regulations. The appellants, in fact, were prevaricating and did not agree with the interpretation placed on Regulation 27(1) (d) by the Merchant Banker. We, therefore, reject the submission of Mr. Shyam Divan that there was delay on the part of SEBI in approving the draft letter of offer | 0 | 17,490 | 549 | ### 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:
offer are in place;(d) the public announcement of offer is made in terms of the Regulations;(e) his shareholding, if any in the target company is disclosed in the public announcement and the letter of offer. 70. Regulation 24(2) mandates that the merchant banker shall furnish to the Board a due diligence certificate which shall accompany the draft letter of offer. The aforesaid regulation clearly indicates that any enquiries and any due diligence that has to be made by the acquirer have to be made prior to the public announcement. It is, therefore, not possible to accept the submission of Mr. Shyam Divan that the appellants are to be permitted to withdraw the public announcement based on the discovery of certain facts subsequent to the making of the public announcement. In such circumstances, in our opinion, the judgments cited by Mr. Shyam Divan are of no relevance. Delay: 71. Mr. Shyam Divan has also indicated that it was because of the unexplained delay of 8 months on the part of SEBI to process the Letter of Offer of the appellants that the prices for the shares of the target company went down from Rs. 18.60 to Rs. 8.56, during this period. This would impose huge financial liability on the appellants. This submission is also wholly misconceived. The submission was not made before SAT and it has been raised for the first time, in the submissions made by Mr. Shyam Divan. In fact, the ground is not even pleaded in the grounds of appeal. The submission is mentioned only in the list of dates. Since, we are considering a statutory appeal under Section 15Z of the SEBI Act, the same cannot be permitted to be raised in this Court for the first time, unless the submission goes to the very root of the matter. This apart, even on merit, we find that the submission is misconceived. Regulation 18(1) and (2) of the SEBI Takeover Code reads thus:- "18. Submission of letter of offer to the Board –(1) Within fourteen days from the date of public announcement made under regulation 10, 11 or 12 as the case may be, the acquirer shall, through its merchant banker, file with the Board, the draft of the letter of offer containing disclosures as specified by the Board.(2) The letter of offer shall be dispatched to the shareholders not earlier than 21 days from its submission to the Board under sub-regulation (1):Provided that if, within 21 days from the date of submission of the letter of offer, the Board specifies changes, if any, in the letter of offer (without being under any obligation to do so), the merchant banker and the acquirer shall carry out such changes before the letter of offer is dispatched to the shareholders :[Provided further that if the disclosures in the draft letter of offer are inadequate or the Board has received any complaint or has initiated any enquiry or investigation in respect of the public offer, the Board may call for revised letter of offer with or without rescheduling the date of opening or closing of the offer and may offer its comments to the revised letter of offer within seven working days of filing of such revised letter of offer.]” 72. A perusal of the aforesaid regulation clearly shows that the acquirer is required to file the draft letter of offer containing disclosures as specified by the Board within a period of 14 days from the date of public announcement. Thereafter, letter of offer has to be dispatched to the shareholders not earlier than 21 days from its submission to the Board. Within 21 days, the Board is required to specify changes if any, that ought to be made in the letter of offer. The merchant banker and the acquirer have then to carry out such changes before the letter of offer is dispatched to the shareholders. But there is no obligation to do so. Under the second proviso, the Board may call for revised letter of offer in case it finds that the disclosures in the draft letter of offer are inadequate or the Board has received any complaint or has initiated any enquiry or investigation in respect of the public offer. It is important to notice that in the first proviso the Board does not have any obligation to specify any change in the draft letter of offer within a period of 21 days. In the present case, in fact, the Board had not specified any changes within 21 days. We have already noticed earlier that the letter of offer was lacking and deficient in detail. The appellants themselves were taking time to submit details called for, by their merchant bankers through various letters between 08.08.2005 to 20.3.2006. We have already noticed the repeated advice given by the merchant banker to enhance the issue size of the open offer and to comply with other requirements of the Takeover Regulations. The appellants, in fact, were prevaricating and did not agree with the interpretation placed on Regulation 27(1) (d) by the Merchant Banker. We, therefore, reject the submission of Mr. Shyam Divan that there was delay on the part of SEBI in approving the draft letter of offer. Court may direct fresh valuation: 73. Lastly, Mr. Shyam Divan has submitted that even if the appellants were not to be permitted to withdraw the public offer, the Court ought to appoint an independent valuer and direct a fresh valuation to be made on the basis of principles contained in Regulation 20(5) of the Takeover Regulations. Such a valuation, according to Mr. Shyam Divan, would be justified in the light of the foregoing submissions. We are not at all impressed by the aforesaid submission. The formula given in Regulation 20 would have no applicability in the facts and circumstances of this case. The determination of the lowest price under Regulation 20 would be at a stage prior to the making of the public announcement and not thereafter. 74. In view of the aforesaid,
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0
### Explanation:
We are inclined to agree with the submission made by Mr. Venugopal that the appellants cannot be permitted to wriggle out of the obligation of a public offer under the Takeover Regulation. Permitting them to do so would deprive the ordinary shareholders of their valuable right to have an exit option under the aforesaid regulations. The SEBI Regulations are designed to ensure that public announcement is not made by way of speculation and to protect the interest of the other shareholders. Very solemn obligations are cast on the merchant banker under Regulation 24(1) to ensure thatthe acquirer is able to implement the offer;(b) the provision relating to Escrow account referred to in Regulation 28 has been made;(c) firm arrangements for funds and money for payment through verifiable means to fulfil the obligations under the offer are in place;(d) the public announcement of offer is made in terms of the Regulations;(e) his shareholding, if any in the target company is disclosed in the public announcement and the letter ofperusal of the aforesaid regulation clearly shows that the acquirer is required to file the draft letter of offer containing disclosures as specified by the Board within a period of 14 days from the date of public announcement. Thereafter, letter of offer has to be dispatched to the shareholders not earlier than 21 days from its submission to the Board. Within 21 days, the Board is required to specify changes if any, that ought to be made in the letter of offer. The merchant banker and the acquirer have then to carry out such changes before the letter of offer is dispatched to the shareholders. But there is no obligation to do so. Under the second proviso, the Board may call for revised letter of offer in case it finds that the disclosures in the draft letter of offer are inadequate or the Board has received any complaint or has initiated any enquiry or investigation in respect of the public offer. It is important to notice that in the first proviso the Board does not have any obligation to specify any change in the draft letter of offer within a period of 21 days. In the present case, in fact, the Board had not specified any changes within 21 days. We have already noticed earlier that the letter of offer was lacking and deficient in detail. The appellants themselves were taking time to submit details called for, by their merchant bankers through various letters between 08.08.2005 to 20.3.2006. We have already noticed the repeated advice given by the merchant banker to enhance the issue size of the open offer and to comply with other requirements of the Takeover Regulations. The appellants, in fact, were prevaricating and did not agree with the interpretation placed on Regulation 27(1) (d) by the Merchant Banker. We, therefore, reject the submission of Mr. Shyam Divan that there was delay on the part of SEBI in approving the draft letter of offer
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M/S Carpenter Classic Exim. P. Ltd Vs. Commr. Of Customs (Imports) | addressed to Anchise Ballestrieri and Vittorio Tollardo of Veneta Cucine S.PA. Treviso, Italy. Photocopy of a fax message No.CCEPL/TM/089/97 dated 5.4.97, said to have been sent by Carpenter Classics to Thomas Mathew. Photocopy of a fax message dated 8.10.98, said to have been sent to Thomas Mathew by Ravi Karumbaiah. Photocopy of a letter No.CCEL/Proma/1362/97-98 dated 10.1.98 to have been sent by Carpenter Classics to Proma SRL. Photocopy of Bill of quantity and Order confirmations of M/s. Veneta Cucine pertaining to shipment called lndia-13 and lndia-14 Photocopy of packing list of M/s. Veneta Cucine pertaining to shipment called lndia-13 and lndia-14. 8. The CESTAT referred to the statements given by Shri Ravi Karumbaiah under Section 108 of the Act. It held that the conclusions were supportable as the evidence on record clearly established that there was under valuation to the extent of 65% with which Shri Thomas played crucial role in the nefarious activities. It was held that both Ravi Karumbaiah and Thomas Mathew were liable to penalty under Section 112(a) of the Act and the company was also liable to penalty under Section 114A of the Act. The differential duty was to be paid alongwith interest. The penalty however was deleted so far as Shri Sanjeev Kabbur is concerned. 9. The primary stand is that even before the show cause notice was issued, to prove its bona fide, a sum of Rs.25 lakhs was paid. Reference is made by learned counsel for the appellant to the proviso to Section 114A of the Act. It is submitted that since reduction in the quantum is permissible, discretion is given in the matter of imposition of penalty. 10. Learned counsel for the respondents on the other hand supported the judgment. 11. Section 112(a) and Section 114A read as follows: "112(a) Penalty for improper importation of goods, etc. - Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or 114A-" Penalty for short-levy or non-levy of duty in certain cases. - Where the duty has not been levied or has been short-levied or the interest has not been charged or paid or has [xxx] been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, the person who is liable to pay the duty or interest, as the case may be, as determined under sub-section (2) of section 28 shall also be liable to pay a penalty equal to the duty or interest so determined: Provided that where such duty or interest, as the case may be, as determined under sub-section (2) of section 28, and the interest payable thereon under section 28AB, is paid within thirty days from the date of the communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the duty or interest, as the case may be, so determined : Provided further that the benefit of reduced penalty under the first proviso shall be available subject to the condition that the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that where the duty or interest determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of this section, the duty or interest as reduced or increased, as the case may be, shall be taken into account: Provided also that in case where the duty or interest determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available if the amount of the duty or the interest so increased, along with the interest payable thereon under section 28AB, and twenty-five per cent of the consequential increase in penalty have also been paid within thirty days of the communication of the order by which such increase in the duty or interest takes effect: Provided also that where any penalty has been levied under this section, no penalty shall be levied under section 112 or section 114. Explanation. - For the removal of doubts, it is hereby declared that - (i) the provisions of this section shall also apply to cases in which the order determining the duty or interest under sub-section (2) of section 28 relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President; (ii) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person." 12. The relevant proviso in Section 114A is applicable only where duty has been paid. In the instant case the claim that Rs.25 lakhs which is not whole of the differential duty is claimed to have been paid before the issuance of the show cause notice. The same is not a mitigating circumstance. 13. Above being the position, the appeal filed by the company is without merit and is dismissed. So far as appeal filed by Ravi Karumbaiah is concerned it is to be seen that the provision of penalty is not mandatory in the sense since discretion is given. CESTAT has not dealt with the question whether the quantum of penalty levied under Section 114A is reasonable and fair. It appears that Ravi Karumbaiah was the Managing Director and Chief Promoter of the appellant company while Thomas Mathew who was the director of the appellant company was also a Director of Proma SRL. | 0[ds]The relevant proviso in Section 114A is applicable only where duty has been paid. In the instant case the claim that Rs.25 lakhs which is not whole of the differential duty is claimed to have been paid before the issuance of the show cause notice. The same is not a mitigating circumstanceAbove being the position, the appeal filed by the company is without merit and is dismissed. So far as appeal filed by Ravi Karumbaiah is concerned it is to be seen that the provision of penalty is not mandatory in the sense since discretion is given. CESTAT has not dealt with the question whether the quantum of penalty levied under Section 114A is reasonable and fair. It appears that Ravi Karumbaiah was the Managing Director and Chief Promoter of the appellant company while Thomas Mathew who was the director of the appellant company was also a Director of Proma SRL. | 0 | 2,400 | 162 | ### 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:
addressed to Anchise Ballestrieri and Vittorio Tollardo of Veneta Cucine S.PA. Treviso, Italy. Photocopy of a fax message No.CCEPL/TM/089/97 dated 5.4.97, said to have been sent by Carpenter Classics to Thomas Mathew. Photocopy of a fax message dated 8.10.98, said to have been sent to Thomas Mathew by Ravi Karumbaiah. Photocopy of a letter No.CCEL/Proma/1362/97-98 dated 10.1.98 to have been sent by Carpenter Classics to Proma SRL. Photocopy of Bill of quantity and Order confirmations of M/s. Veneta Cucine pertaining to shipment called lndia-13 and lndia-14 Photocopy of packing list of M/s. Veneta Cucine pertaining to shipment called lndia-13 and lndia-14. 8. The CESTAT referred to the statements given by Shri Ravi Karumbaiah under Section 108 of the Act. It held that the conclusions were supportable as the evidence on record clearly established that there was under valuation to the extent of 65% with which Shri Thomas played crucial role in the nefarious activities. It was held that both Ravi Karumbaiah and Thomas Mathew were liable to penalty under Section 112(a) of the Act and the company was also liable to penalty under Section 114A of the Act. The differential duty was to be paid alongwith interest. The penalty however was deleted so far as Shri Sanjeev Kabbur is concerned. 9. The primary stand is that even before the show cause notice was issued, to prove its bona fide, a sum of Rs.25 lakhs was paid. Reference is made by learned counsel for the appellant to the proviso to Section 114A of the Act. It is submitted that since reduction in the quantum is permissible, discretion is given in the matter of imposition of penalty. 10. Learned counsel for the respondents on the other hand supported the judgment. 11. Section 112(a) and Section 114A read as follows: "112(a) Penalty for improper importation of goods, etc. - Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or 114A-" Penalty for short-levy or non-levy of duty in certain cases. - Where the duty has not been levied or has been short-levied or the interest has not been charged or paid or has [xxx] been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, the person who is liable to pay the duty or interest, as the case may be, as determined under sub-section (2) of section 28 shall also be liable to pay a penalty equal to the duty or interest so determined: Provided that where such duty or interest, as the case may be, as determined under sub-section (2) of section 28, and the interest payable thereon under section 28AB, is paid within thirty days from the date of the communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the duty or interest, as the case may be, so determined : Provided further that the benefit of reduced penalty under the first proviso shall be available subject to the condition that the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that where the duty or interest determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of this section, the duty or interest as reduced or increased, as the case may be, shall be taken into account: Provided also that in case where the duty or interest determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available if the amount of the duty or the interest so increased, along with the interest payable thereon under section 28AB, and twenty-five per cent of the consequential increase in penalty have also been paid within thirty days of the communication of the order by which such increase in the duty or interest takes effect: Provided also that where any penalty has been levied under this section, no penalty shall be levied under section 112 or section 114. Explanation. - For the removal of doubts, it is hereby declared that - (i) the provisions of this section shall also apply to cases in which the order determining the duty or interest under sub-section (2) of section 28 relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President; (ii) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person." 12. The relevant proviso in Section 114A is applicable only where duty has been paid. In the instant case the claim that Rs.25 lakhs which is not whole of the differential duty is claimed to have been paid before the issuance of the show cause notice. The same is not a mitigating circumstance. 13. Above being the position, the appeal filed by the company is without merit and is dismissed. So far as appeal filed by Ravi Karumbaiah is concerned it is to be seen that the provision of penalty is not mandatory in the sense since discretion is given. CESTAT has not dealt with the question whether the quantum of penalty levied under Section 114A is reasonable and fair. It appears that Ravi Karumbaiah was the Managing Director and Chief Promoter of the appellant company while Thomas Mathew who was the director of the appellant company was also a Director of Proma SRL.
### Response:
0
### Explanation:
The relevant proviso in Section 114A is applicable only where duty has been paid. In the instant case the claim that Rs.25 lakhs which is not whole of the differential duty is claimed to have been paid before the issuance of the show cause notice. The same is not a mitigating circumstanceAbove being the position, the appeal filed by the company is without merit and is dismissed. So far as appeal filed by Ravi Karumbaiah is concerned it is to be seen that the provision of penalty is not mandatory in the sense since discretion is given. CESTAT has not dealt with the question whether the quantum of penalty levied under Section 114A is reasonable and fair. It appears that Ravi Karumbaiah was the Managing Director and Chief Promoter of the appellant company while Thomas Mathew who was the director of the appellant company was also a Director of Proma SRL.
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Dinabandhu Sahu Vs. Jadumoni Mangaraj And Others | nor want of bona fides in imputable to the appellant". We have, therefore, no hesitation in holding that the order dated 2-7-1952 is on the facts a proper one to pass under the proviso to section 86. 6. It was also argued for the appellant that the power conferred by the proviso to section 85 could, on its true construction, be exercised only when the petitioner moved the matter in person, and as the Election Tribunal had found that was not done, there was no jurisdiction in the Election Commission to pass the order which it did. We do not see anything in the language of the section to support this contention. While the proviso requires that "the person making the petition" should satisfy the Election Commission that there was sufficient cause for delay, it does not require that he should do so in person. And there is nothing in the character of the proceedings requiring that the petitioner should make the representations under that proviso in person. It is only a question of satisfying the Election Commission that there was sufficient ground for excusing the delay, and that could be done otherwise than by the personal appearance of the petitioner. None of the objections advanced against the validity of the order dated 2-7-1952 being tenable, the contention that the petition was liable to be dismissed under section 85 as presented out of time must be rejected. 7. There is another ground on which also the contention of the appellant that the petition is not maintainable should fail. When the election petition came before the Election Tribunal by virtue of the order under section 86 of the Act, the appellant moved for its dismissal under section 90(4) on the grounds firstly that it was not presented within the time prescribed by section 81, and secondly, that it was not verified in accordance with section 83, but the Election Tribunal declined to do so. If it was within the competence of the Election Tribunal to pass such an order, that would itself furnish a complete answer to the contention of the appellant that the petition was not maintainable. Mr. Krishnaswami Ayyangar sought to get over this difficulty by contending that the order of the Election Commission sending the petition for hearing by the Election Tribunal under section 86 of the Act was without jurisdiction, because an order under that section could be passed only when the petition is not liable to be dismissed under section 85 as when the requirements of section 81, 83 or 117 are complied with; but that when those provisions are not complied with its only power under that Act was to dismiss it under section 85, that, in consequence the Election Tribunal acquired no jurisdiction to hear the petition by virtue of that order, and that all the proceedings taken under it culminating in the order now under appeal, were a nullity. This contention is, in our judgment, wholly untenable. The jurisdiction to pass an order under section 86 arises "if the petition is not dismissed under section 85". That has reference to the factual position whether the petition was, in fact, dismissed under section 85 and not to the legal position whether it was liable to be dismissed. That is the plain meaning of the words of the section, and that is made plainer by section 90(4) which provides that."Notwithstanding anything contained in section 85 the Tribunal may dismiss an election petition which does not comply with the provisions of section 81, section 83 or section 117." This provision clearly contemplates that petitions which are liable to be dismissed for noncompliance with section 81, 83 or 117 might not have been so dismissed, and provides that when such petitions come before the Election Tribunal, it is a matter of discretion with it to dismiss them or not. The power of the Election Tribunal to condone delay in presentation or defective verification is thus unaffected by the consideration whether the petition was liable to be dismissed by the Election Commission under section 86, the effect of an order under section 90(4) declining to dismiss the petition on the ground of delay or defective verification is clearly to condone those defects. 8. In the instant case, with reference to the plea of limitation the position stands thus : the delay was condoned by the Election Commission under the proviso to section 85, and by reason of that order, the question is, as already held, no longer open to consideration at any later stage. Even assuming for the sake of argument that the Election Commission had no jurisdiction to pass an order condonation suo motu, and further accepting the finding of the Election Commission that the order dated 2-7-1952 was so made and that it was therefore a nullity, when the matter came before the Election, Tribunal by transfer under section 86, it had jurisdiction to pass appropriate orders under section 90(4), and its order declining to dismiss the petition is sufficient to condone the defect. 9. The position as regards verification is slightly different. There is no provision corresponding to the proviso to section 85 conferring express power on the Election Commission to permit amendment of the verification. Whether it has inherent power to permit such amendment, it is not necessary to decide, because when it had not, in fact, dismiss the petition under section 85 for not complying with section 83 and passed an order under section 86 appointing an Election Tribunal for the hearing of the petition, the matter is thereafter governed by section 90(4) of the Act, and it is a matter of discretion with the Election Tribunal either to dismiss the petition for defective verification or not. In the present case, the Election Tribunal directed the verification to be amended on 24-7-1952, and further declined to dismiss the petition under section 90(4) for defective verification. These are not orders with which this court will interfere in appeal under Article 136 of the Constitution. | 0[ds]The policy underlying the provision is to treat the question of delay as one between the Election commission and the petitioner and to make the decision of the Election Commission on the question final and not open to question at any later stage of the proceedings. Under section 90(4) of the Act, when the petition does not comply with the requirements of section 81, section 83 or section 117, the Election Tribunal has a discretion either to dismiss it or not, "notwithstanding anything contained in section 85". The scope of the power conferred on the Election Tribunal under section 90(4) is that it overrides the power conferred on the Election Commission under section 85 to dismiss the petitionIt does not extend further and include a power in the Election Tribunal to review any order passed by the Election Commission under section 85 of the Act. The words of section 90(4) are, it should be marked, "notwithstanding anything contained in section 85" and "notwithstanding anything contained in section 85 or any order passed thereunder". An order of the Election Commission under section 85 dismissing a petition as barred will under the scheme of the Act, be final, and the same result must follow under section 90(4) when the order is one excusing the delaySection 90 (4) will be attracted only when the Election Commission passes the petition on the Tribunal without passing any order under section 85. If the Election Commission can thus pass a final order condoning delay without notice to the respondent, there is no reason why it should not pass such an order suo motu. In this respect, the position under the proviso the section 85 is materially different from that under section 5 of the Limitation Act, under which an order excusing delay is not final, and is liable to be questioned by the respondent at a later stageBut the proviso advisedly confers on the Election Commission wide discretion in the matter, and the obvious intention of the legislature was that it should be exercised with a view to do justice to all the parties. The Election Commission might therefore be trusted to pass the appropriate order when there is avoidable and unreasonable delay. That a power might be liable to be abused is no ground for denying it when the statute confers it, and where there is an abuse of power by statutory bodies, the parties aggrieved are no without ample remedies under the lawWith particular reference to the order dated 2-7-1952, it is difficult to come to any conclusion other than that in passing that order the discretion under the proviso to section 85 has been properly exercised. The petition had been presented at the post office one day earlier, and reached the Election Commission one day later than the due date. Even if the matter had to be judged under section 5 of the Limitation Act, it would have been a proper exercise of the power under that section to have excused the delayWe have, therefore, no hesitation in holding that the order dated 2-7-1952 is on the facts a proper one to pass under the proviso to section 86While the proviso requires that "the person making the petition" should satisfy the Election Commission that there was sufficient cause for delay, it does not require that he should do so in person. And there is nothing in the character of the proceedings requiring that the petitioner should make the representations under that proviso in person. It is only a question of satisfying the Election Commission that there was sufficient ground for excusing the delay, and that could be done otherwise than by the personal appearance of the petitioner. None of the objections advanced against the validity of the order dated 2-7-1952 being tenable, the contention that the petition was liable to be dismissed under section 85 as presented out of time must be rejectedWhen the election petition came before the Election Tribunal by virtue of the order under section 86 of the Act, the appellant moved for its dismissal under section 90(4) on the grounds firstly that it was not presented within the time prescribed by section 81, and secondly, that it was not verified in accordance with section 83, but the Election Tribunal declined to do so. If it was within the competence of the Election Tribunal to pass such an order, that would itself furnish a complete answer to the contention of the appellant that the petition was not maintainableThe jurisdiction to pass an order under section 86 arises "if the petition is not dismissed under section 85". That has reference to the factual positionwhether the petition was, in fact, dismissed under section 85 and not to the legal position whether it was liable to be dismissed.9. The position as regards verification is slightly different. There is no provision corresponding to the proviso to section 85 conferring express power on the Election Commission to permit amendment of the verification. Whether it has inherent power to permit such amendment, it is not necessary to decide, because when it had not, in fact, dismiss the petition under section 85 for not complying with section 83 and passed an order under section 86 appointing an Election Tribunal for the hearing of the petition, the matter is thereafter governed by section 90(4) of the Act, and it is a matter of discretion with the Election Tribunal either to dismiss the petition for defective verification or not. In the present case, the Election Tribunal directed the verification to be amended on 24-7-1952, and further declined to dismiss the petition under section 90(4) for defective verification. These are not orders with which this court will interfere in appeal under Article 136 of the Constitution | 0 | 3,200 | 1,051 | ### Instruction:
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nor want of bona fides in imputable to the appellant". We have, therefore, no hesitation in holding that the order dated 2-7-1952 is on the facts a proper one to pass under the proviso to section 86. 6. It was also argued for the appellant that the power conferred by the proviso to section 85 could, on its true construction, be exercised only when the petitioner moved the matter in person, and as the Election Tribunal had found that was not done, there was no jurisdiction in the Election Commission to pass the order which it did. We do not see anything in the language of the section to support this contention. While the proviso requires that "the person making the petition" should satisfy the Election Commission that there was sufficient cause for delay, it does not require that he should do so in person. And there is nothing in the character of the proceedings requiring that the petitioner should make the representations under that proviso in person. It is only a question of satisfying the Election Commission that there was sufficient ground for excusing the delay, and that could be done otherwise than by the personal appearance of the petitioner. None of the objections advanced against the validity of the order dated 2-7-1952 being tenable, the contention that the petition was liable to be dismissed under section 85 as presented out of time must be rejected. 7. There is another ground on which also the contention of the appellant that the petition is not maintainable should fail. When the election petition came before the Election Tribunal by virtue of the order under section 86 of the Act, the appellant moved for its dismissal under section 90(4) on the grounds firstly that it was not presented within the time prescribed by section 81, and secondly, that it was not verified in accordance with section 83, but the Election Tribunal declined to do so. If it was within the competence of the Election Tribunal to pass such an order, that would itself furnish a complete answer to the contention of the appellant that the petition was not maintainable. Mr. Krishnaswami Ayyangar sought to get over this difficulty by contending that the order of the Election Commission sending the petition for hearing by the Election Tribunal under section 86 of the Act was without jurisdiction, because an order under that section could be passed only when the petition is not liable to be dismissed under section 85 as when the requirements of section 81, 83 or 117 are complied with; but that when those provisions are not complied with its only power under that Act was to dismiss it under section 85, that, in consequence the Election Tribunal acquired no jurisdiction to hear the petition by virtue of that order, and that all the proceedings taken under it culminating in the order now under appeal, were a nullity. This contention is, in our judgment, wholly untenable. The jurisdiction to pass an order under section 86 arises "if the petition is not dismissed under section 85". That has reference to the factual position whether the petition was, in fact, dismissed under section 85 and not to the legal position whether it was liable to be dismissed. That is the plain meaning of the words of the section, and that is made plainer by section 90(4) which provides that."Notwithstanding anything contained in section 85 the Tribunal may dismiss an election petition which does not comply with the provisions of section 81, section 83 or section 117." This provision clearly contemplates that petitions which are liable to be dismissed for noncompliance with section 81, 83 or 117 might not have been so dismissed, and provides that when such petitions come before the Election Tribunal, it is a matter of discretion with it to dismiss them or not. The power of the Election Tribunal to condone delay in presentation or defective verification is thus unaffected by the consideration whether the petition was liable to be dismissed by the Election Commission under section 86, the effect of an order under section 90(4) declining to dismiss the petition on the ground of delay or defective verification is clearly to condone those defects. 8. In the instant case, with reference to the plea of limitation the position stands thus : the delay was condoned by the Election Commission under the proviso to section 85, and by reason of that order, the question is, as already held, no longer open to consideration at any later stage. Even assuming for the sake of argument that the Election Commission had no jurisdiction to pass an order condonation suo motu, and further accepting the finding of the Election Commission that the order dated 2-7-1952 was so made and that it was therefore a nullity, when the matter came before the Election, Tribunal by transfer under section 86, it had jurisdiction to pass appropriate orders under section 90(4), and its order declining to dismiss the petition is sufficient to condone the defect. 9. The position as regards verification is slightly different. There is no provision corresponding to the proviso to section 85 conferring express power on the Election Commission to permit amendment of the verification. Whether it has inherent power to permit such amendment, it is not necessary to decide, because when it had not, in fact, dismiss the petition under section 85 for not complying with section 83 and passed an order under section 86 appointing an Election Tribunal for the hearing of the petition, the matter is thereafter governed by section 90(4) of the Act, and it is a matter of discretion with the Election Tribunal either to dismiss the petition for defective verification or not. In the present case, the Election Tribunal directed the verification to be amended on 24-7-1952, and further declined to dismiss the petition under section 90(4) for defective verification. These are not orders with which this court will interfere in appeal under Article 136 of the Constitution.
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The policy underlying the provision is to treat the question of delay as one between the Election commission and the petitioner and to make the decision of the Election Commission on the question final and not open to question at any later stage of the proceedings. Under section 90(4) of the Act, when the petition does not comply with the requirements of section 81, section 83 or section 117, the Election Tribunal has a discretion either to dismiss it or not, "notwithstanding anything contained in section 85". The scope of the power conferred on the Election Tribunal under section 90(4) is that it overrides the power conferred on the Election Commission under section 85 to dismiss the petitionIt does not extend further and include a power in the Election Tribunal to review any order passed by the Election Commission under section 85 of the Act. The words of section 90(4) are, it should be marked, "notwithstanding anything contained in section 85" and "notwithstanding anything contained in section 85 or any order passed thereunder". An order of the Election Commission under section 85 dismissing a petition as barred will under the scheme of the Act, be final, and the same result must follow under section 90(4) when the order is one excusing the delaySection 90 (4) will be attracted only when the Election Commission passes the petition on the Tribunal without passing any order under section 85. If the Election Commission can thus pass a final order condoning delay without notice to the respondent, there is no reason why it should not pass such an order suo motu. In this respect, the position under the proviso the section 85 is materially different from that under section 5 of the Limitation Act, under which an order excusing delay is not final, and is liable to be questioned by the respondent at a later stageBut the proviso advisedly confers on the Election Commission wide discretion in the matter, and the obvious intention of the legislature was that it should be exercised with a view to do justice to all the parties. The Election Commission might therefore be trusted to pass the appropriate order when there is avoidable and unreasonable delay. That a power might be liable to be abused is no ground for denying it when the statute confers it, and where there is an abuse of power by statutory bodies, the parties aggrieved are no without ample remedies under the lawWith particular reference to the order dated 2-7-1952, it is difficult to come to any conclusion other than that in passing that order the discretion under the proviso to section 85 has been properly exercised. The petition had been presented at the post office one day earlier, and reached the Election Commission one day later than the due date. Even if the matter had to be judged under section 5 of the Limitation Act, it would have been a proper exercise of the power under that section to have excused the delayWe have, therefore, no hesitation in holding that the order dated 2-7-1952 is on the facts a proper one to pass under the proviso to section 86While the proviso requires that "the person making the petition" should satisfy the Election Commission that there was sufficient cause for delay, it does not require that he should do so in person. And there is nothing in the character of the proceedings requiring that the petitioner should make the representations under that proviso in person. It is only a question of satisfying the Election Commission that there was sufficient ground for excusing the delay, and that could be done otherwise than by the personal appearance of the petitioner. None of the objections advanced against the validity of the order dated 2-7-1952 being tenable, the contention that the petition was liable to be dismissed under section 85 as presented out of time must be rejectedWhen the election petition came before the Election Tribunal by virtue of the order under section 86 of the Act, the appellant moved for its dismissal under section 90(4) on the grounds firstly that it was not presented within the time prescribed by section 81, and secondly, that it was not verified in accordance with section 83, but the Election Tribunal declined to do so. If it was within the competence of the Election Tribunal to pass such an order, that would itself furnish a complete answer to the contention of the appellant that the petition was not maintainableThe jurisdiction to pass an order under section 86 arises "if the petition is not dismissed under section 85". That has reference to the factual positionwhether the petition was, in fact, dismissed under section 85 and not to the legal position whether it was liable to be dismissed.9. The position as regards verification is slightly different. There is no provision corresponding to the proviso to section 85 conferring express power on the Election Commission to permit amendment of the verification. Whether it has inherent power to permit such amendment, it is not necessary to decide, because when it had not, in fact, dismiss the petition under section 85 for not complying with section 83 and passed an order under section 86 appointing an Election Tribunal for the hearing of the petition, the matter is thereafter governed by section 90(4) of the Act, and it is a matter of discretion with the Election Tribunal either to dismiss the petition for defective verification or not. In the present case, the Election Tribunal directed the verification to be amended on 24-7-1952, and further declined to dismiss the petition under section 90(4) for defective verification. These are not orders with which this court will interfere in appeal under Article 136 of the Constitution
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Karnataka Rare Earth and Anr Vs. The Senior Geologist, Department of Mines and Geology and Anr | P. Ramanatha Aiyar, Second Edition, p. 1431). 14. In support of the submission that the demand for the price of mineral raised and exported is in the nature of penalty, the learned counsel for the appellants has relied on the marginal note of S.21. According to Justice G.P. Singh on Principles of Statutory Interpretation (English Edition, 2001, at p.147) though the opinion is not uniform but the weight of authority is in favour of the view that the marginal note appended to a section cannot be used for construing the Section. There is no justification for restricting the section by the marginal note nor does the marginal note control the meaning of the body of the section if the language employed therein is clear and spells out its own meaning. In Director of Public Prosecution v. Schildkamp, (1969 (3) All ER 1640) Lord Reid opined that a side note is a poor guide to the scope of a section for it can do not more than indicate the main subject with which the section deals and Lord Upjohn opined that a side note being a brief precis of the section forms a most unsure guide to the construction of the enacting section and very rarely it might throw some light on the intentions of Parliament just as a punctuation mark. 15. We are clearly of the opinion that the marginal note penalties cannot be pressed into service for giving such colour to the meaning of Sub-section (5) as it cannot have in law. The recovery of price of the mineral is intended to compensate the State for the loss of the mineral owned by it and caused by a person who has been held to be not entitled in law to raise the same. There is no element of penalty involved and the recovery of price is not a penal action. It is just compensatory. 16. The Court while dismissing the appeals filed by the appellants in the year 1996, which dismissal vacated the interim orders, could have also relieved the appellants of the consequences logically and necessarily flowing from the dismissal of the appeals by taking into consideration the equity of relieving against hardship or could also have done so in exercise of its jurisdiction conferred by Art.142 of the Constitution. So was done in Samatha v. State of A.P. and Ors., (1997 (8) SCC 191 ) 277 para 131. This Court having directed the State Government to ensure further mining operations by industrialists concerned in the scheduled area, restrained the lessees of mining leases not to break fresh mines, but in the meanwhile allowed them to remove the minerals already extracted and stocked in the reserved forest area within four months time from the date of judgment. 17. Neither the appellants prayed for such relief nor the Court has passed any such order. What this Court had not done, could not obviously have been done by the High Court in exercise of its writ jurisdiction in view of the earlier judgment of this Court having achieved a finality. 18. The two decisions relied on by the learned counsel for the appellants are not applicable to the facts of the present cases. Hindustan Steel (supra) is a case under the Orissa Sales Tax Act, 1947. The appellant company was engaged in construction activity. During the course of such activity the company supplied building materials to the contractor for construction and adjusted the value of the goods supplied at the rates specified in the tender. The Court held such transaction of supply of building materials to be a sale and, therefore, the company a dealer covered by the Act. However, the persons incharge of the affairs of the company had not registered the company as dealer in the honest and genuine belief that the company was not a dealer. The court held that the liability to pay penalty did not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out the statutory obligation is the result of a quasi criminal proceeding and penalty will not ordinarily be imposed unless the party obliged has either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. In spite of a minimum penalty prescribed the authority competent to impose the penalty may refuse to impose penalty if the breach complained of was a technical or venial breach or flew from a bona fide though mistaken belief. In Consolidated Coffee (supra), the court was dealing with S.42(1) of Karnataka Agricultural Income Tax Act, 1957. A default by assessee in making payment of tax attracted a penalty equivalent to one and a one-half percent of the tax remaining unpaid for the first three months and two and one-half percent of such tax for each month subsequent thereto. There was also a provision for payment of interest on delayed payment of tax. This Court held that interest is compensatory while penalty is penal, i.e. punishing in character. Where delay in payment of tax was attributable to the order of stay passed by the Court, it was held that the order of stay placed the demand for the tax in abeyance and, therefore, during the period of stay the assessee cannot be said to be in default and hence no penalty can be imposed on the assessee on the stay being vacated. However, still he Court held that a late payment surcharge/interest is necessarily compensatory in character and a penalty is a punishment. 19. At the end, the learned counsel for the appellants submitted that the appellants may be allowed the liberty of making a representation to the State Government for some relief at least in the calculation of the amount of price. Needless to say that the appellants are always at liberty to do and we express no opinion thereon. | 0[ds]7. In our opinion, the demand by the State of Karnataka of the price of the mineral cannot be said to be levy of penalty or a penal action. The marginal note of the section - Penalties, creates a wrong impression. A reading of S.21 shows that it deals with a variety of situations. Sub-sections (1), (2), (4), (4A) and (6) are in the realm of criminal law. Sub-section (3) empowers the State Government or any authority authorized in this behalf to summarily evict a trespasser. Sub-section (5) empowers the State Government to recover rent, royalty or tax from the person who has raised the mineral from any land without any lawful authority and also empowers the State Government to recover the price thereof where such mineral has already been disposed of inasmuch as the same would not be available for seizure and confiscation. The provision as to recovery of price is in the nature of recovering the compensation and not penalty so also the power of the State Government to recover rent, royalty or tax in respect of any mineral raised without any lawful authority can also not be called a penal action. The underlying principle of Sub-section (5) is that a person acting without any lawful authority must not find himself placed in a position more advantageous than a person raising minerals with lawful authority.8. The correct principles of law applicable to the facts of the present case emanating from equity, and statutorily embodied in Sub-section (5) of S.21 abovesaid, are to be found dealt with extensively in a recent decision of this Court in South Eastern Coalfields Ltd. v. State of M.P. and Ors. (2003 (8) SCC 648 ).9. It is true that by the interim orders passed by this Court the appellants were allowed during the pendency of the earlier appeals to operate under the mining leases, whether freshly granted or renewed and to effectuate the interim orders the authorities were also directed toe issue transport permits. Admittedly, the transport permits were obtained by the appellants after the dismissal of their appeals. Theappellants claim that both the parties were ignorant of the dismissal of the appeals when the transport permits were issued and the granite blocks were exported.It is difficult to accept the plea of the appellants that the dismissal of the appeals was not in their knowledge inasmuch as the judgments must have been pronounced in an open Court and their counsel at Delhi must have gathered the knowledge thereof. In any case the appellants cannot be heard taking shelter behind there own convenient ignorance. In our opinion, whether they had the knowledge of the judgment or not and whether the transport permits were obtained by the appellants before the dismissal of the appeals during which the interim orders were in operation or after the dismissal of the appeals when the interim orders had ceased to operate would not make any difference. For the purposes of the law it is enough that the appellants have enjoyed the benefit under the interim orders of the Court which have stood vacated with the dismissal of their appeals. It is also noteworthy that this Court had not, in the earlier appeals, directed the judgment of the High Court to remain stayed in its entirety and this is an additional fact or which tells adversely on the appellants.10. In South Eastern Coalfields Ltd. (supra), this Court dealt with the effect on the rights of the parties who have acted bona fide, protected by interim orders of the Court and incurred rights and obligations while the interim orders stood vacated or reversed at the end. The Court referred to the doctrine of actus curiae neminem gravabit and held that the doctrine was not confined in its application only to such acts of the Court which were erroneous; the doctrine is applicable to all such acts as to which it can be held that the Court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the Court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an improvement which it would not have suffered but for the order of the Court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the Court would not have been passed. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the Court, or (b) to make restitution for what it has lost.11. In the facts of this case, in spite of the judgment of the High Court, if the appellants would not have persuaded this Court to pass the interim orders, they would not have been entitled to operate the mining leases and to raise and remove and disposed of the minerals extracted. But for the interim orders passed by this Court, there is no difference between the appellants and any person raising, without any lawful authority, any mineral from any land, attracting applicability of Sub-section (5) of S.21. As the appellants have lost from the Court they cannot be allowed to retain the benefit earned by them under the interim orders of the Court. The High Court has rightly held the appellants liable to be placed in the same position in which they would have been if this Court would not have protected them by issuing interim orders. All that the State Government is demanding from the appellants is the price of the minor minerals. Rent, royalty or tax has already been recovered by the State Government and, therefore, there is no demand under that Head. No penal proceedings, much less any criminal proceedings, have been initiated against the appellants. It is absolutely incorrect to contend that the appellants are being asked to pay any penalty or are being subjected to any penal action. It is not the case of the appellants that they are being asked to pay a price more than what they have realised from the exports or that the price appointed by the respondent State is in any manner arbitrary or unreasonable.We are clearly of the opinion that the marginal note penalties cannot be pressed into service for giving such colour to the meaning of Sub-section (5) as it cannot have in law. The recovery of price of the mineral is intended to compensate the State for the loss of the mineral owned by it and caused by a person who has been held to be not entitled in law to raise the same. There is no element of penalty involved and the recovery of price is not a penal action. It is just compensatory. | 0 | 3,782 | 1,299 | ### Instruction:
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P. Ramanatha Aiyar, Second Edition, p. 1431). 14. In support of the submission that the demand for the price of mineral raised and exported is in the nature of penalty, the learned counsel for the appellants has relied on the marginal note of S.21. According to Justice G.P. Singh on Principles of Statutory Interpretation (English Edition, 2001, at p.147) though the opinion is not uniform but the weight of authority is in favour of the view that the marginal note appended to a section cannot be used for construing the Section. There is no justification for restricting the section by the marginal note nor does the marginal note control the meaning of the body of the section if the language employed therein is clear and spells out its own meaning. In Director of Public Prosecution v. Schildkamp, (1969 (3) All ER 1640) Lord Reid opined that a side note is a poor guide to the scope of a section for it can do not more than indicate the main subject with which the section deals and Lord Upjohn opined that a side note being a brief precis of the section forms a most unsure guide to the construction of the enacting section and very rarely it might throw some light on the intentions of Parliament just as a punctuation mark. 15. We are clearly of the opinion that the marginal note penalties cannot be pressed into service for giving such colour to the meaning of Sub-section (5) as it cannot have in law. The recovery of price of the mineral is intended to compensate the State for the loss of the mineral owned by it and caused by a person who has been held to be not entitled in law to raise the same. There is no element of penalty involved and the recovery of price is not a penal action. It is just compensatory. 16. The Court while dismissing the appeals filed by the appellants in the year 1996, which dismissal vacated the interim orders, could have also relieved the appellants of the consequences logically and necessarily flowing from the dismissal of the appeals by taking into consideration the equity of relieving against hardship or could also have done so in exercise of its jurisdiction conferred by Art.142 of the Constitution. So was done in Samatha v. State of A.P. and Ors., (1997 (8) SCC 191 ) 277 para 131. This Court having directed the State Government to ensure further mining operations by industrialists concerned in the scheduled area, restrained the lessees of mining leases not to break fresh mines, but in the meanwhile allowed them to remove the minerals already extracted and stocked in the reserved forest area within four months time from the date of judgment. 17. Neither the appellants prayed for such relief nor the Court has passed any such order. What this Court had not done, could not obviously have been done by the High Court in exercise of its writ jurisdiction in view of the earlier judgment of this Court having achieved a finality. 18. The two decisions relied on by the learned counsel for the appellants are not applicable to the facts of the present cases. Hindustan Steel (supra) is a case under the Orissa Sales Tax Act, 1947. The appellant company was engaged in construction activity. During the course of such activity the company supplied building materials to the contractor for construction and adjusted the value of the goods supplied at the rates specified in the tender. The Court held such transaction of supply of building materials to be a sale and, therefore, the company a dealer covered by the Act. However, the persons incharge of the affairs of the company had not registered the company as dealer in the honest and genuine belief that the company was not a dealer. The court held that the liability to pay penalty did not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out the statutory obligation is the result of a quasi criminal proceeding and penalty will not ordinarily be imposed unless the party obliged has either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. In spite of a minimum penalty prescribed the authority competent to impose the penalty may refuse to impose penalty if the breach complained of was a technical or venial breach or flew from a bona fide though mistaken belief. In Consolidated Coffee (supra), the court was dealing with S.42(1) of Karnataka Agricultural Income Tax Act, 1957. A default by assessee in making payment of tax attracted a penalty equivalent to one and a one-half percent of the tax remaining unpaid for the first three months and two and one-half percent of such tax for each month subsequent thereto. There was also a provision for payment of interest on delayed payment of tax. This Court held that interest is compensatory while penalty is penal, i.e. punishing in character. Where delay in payment of tax was attributable to the order of stay passed by the Court, it was held that the order of stay placed the demand for the tax in abeyance and, therefore, during the period of stay the assessee cannot be said to be in default and hence no penalty can be imposed on the assessee on the stay being vacated. However, still he Court held that a late payment surcharge/interest is necessarily compensatory in character and a penalty is a punishment. 19. At the end, the learned counsel for the appellants submitted that the appellants may be allowed the liberty of making a representation to the State Government for some relief at least in the calculation of the amount of price. Needless to say that the appellants are always at liberty to do and we express no opinion thereon.
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authority can also not be called a penal action. The underlying principle of Sub-section (5) is that a person acting without any lawful authority must not find himself placed in a position more advantageous than a person raising minerals with lawful authority.8. The correct principles of law applicable to the facts of the present case emanating from equity, and statutorily embodied in Sub-section (5) of S.21 abovesaid, are to be found dealt with extensively in a recent decision of this Court in South Eastern Coalfields Ltd. v. State of M.P. and Ors. (2003 (8) SCC 648 ).9. It is true that by the interim orders passed by this Court the appellants were allowed during the pendency of the earlier appeals to operate under the mining leases, whether freshly granted or renewed and to effectuate the interim orders the authorities were also directed toe issue transport permits. Admittedly, the transport permits were obtained by the appellants after the dismissal of their appeals. Theappellants claim that both the parties were ignorant of the dismissal of the appeals when the transport permits were issued and the granite blocks were exported.It is difficult to accept the plea of the appellants that the dismissal of the appeals was not in their knowledge inasmuch as the judgments must have been pronounced in an open Court and their counsel at Delhi must have gathered the knowledge thereof. In any case the appellants cannot be heard taking shelter behind there own convenient ignorance. In our opinion, whether they had the knowledge of the judgment or not and whether the transport permits were obtained by the appellants before the dismissal of the appeals during which the interim orders were in operation or after the dismissal of the appeals when the interim orders had ceased to operate would not make any difference. For the purposes of the law it is enough that the appellants have enjoyed the benefit under the interim orders of the Court which have stood vacated with the dismissal of their appeals. It is also noteworthy that this Court had not, in the earlier appeals, directed the judgment of the High Court to remain stayed in its entirety and this is an additional fact or which tells adversely on the appellants.10. In South Eastern Coalfields Ltd. (supra), this Court dealt with the effect on the rights of the parties who have acted bona fide, protected by interim orders of the Court and incurred rights and obligations while the interim orders stood vacated or reversed at the end. The Court referred to the doctrine of actus curiae neminem gravabit and held that the doctrine was not confined in its application only to such acts of the Court which were erroneous; the doctrine is applicable to all such acts as to which it can be held that the Court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the Court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an improvement which it would not have suffered but for the order of the Court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the Court would not have been passed. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the Court, or (b) to make restitution for what it has lost.11. In the facts of this case, in spite of the judgment of the High Court, if the appellants would not have persuaded this Court to pass the interim orders, they would not have been entitled to operate the mining leases and to raise and remove and disposed of the minerals extracted. But for the interim orders passed by this Court, there is no difference between the appellants and any person raising, without any lawful authority, any mineral from any land, attracting applicability of Sub-section (5) of S.21. As the appellants have lost from the Court they cannot be allowed to retain the benefit earned by them under the interim orders of the Court. The High Court has rightly held the appellants liable to be placed in the same position in which they would have been if this Court would not have protected them by issuing interim orders. All that the State Government is demanding from the appellants is the price of the minor minerals. Rent, royalty or tax has already been recovered by the State Government and, therefore, there is no demand under that Head. No penal proceedings, much less any criminal proceedings, have been initiated against the appellants. It is absolutely incorrect to contend that the appellants are being asked to pay any penalty or are being subjected to any penal action. It is not the case of the appellants that they are being asked to pay a price more than what they have realised from the exports or that the price appointed by the respondent State is in any manner arbitrary or unreasonable.We are clearly of the opinion that the marginal note penalties cannot be pressed into service for giving such colour to the meaning of Sub-section (5) as it cannot have in law. The recovery of price of the mineral is intended to compensate the State for the loss of the mineral owned by it and caused by a person who has been held to be not entitled in law to raise the same. There is no element of penalty involved and the recovery of price is not a penal action. It is just compensatory.
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Pramod Jain Vs. Sebi | respondent to withdraw the public offer would be detrimental to the overall interest of the shareholders. The only reason put forward by the respondent for withdrawal of the offer is that it is no longer economically viable to continue with the offer. Mr Nariman has referred to a tabular statement and data to show that there is no substantial variation in the share prices that ensued making of the public offer. Having seen the Table, we find substance in the submission of Mr Nariman that there is hardly any variation in the shares of the target company from 20-10-2011 till 30-11-2011. The variation seems to have been between Rs 78.10 (on 24-11-2011) and Rs 87.60 (on 20-10-2011). Such a variation cannot be said to be the result of the public offer. But this will not detract from the well-known phenomena that public announcement of the public offering affects the securities market and the shares of the target company. The impact is immediate.35. We are also not impressed by the submission of Mr Nariman that it has now become economically impossible to give effect to the public offer. This very submission has been rejected in Nirma Industries Ltd. We reiterate our opinion in Nirma Industries Ltd. that under Regulations 27(1)(b), (c) and (d), a public offer, once made, can only be permitted to be withdrawn in circumstances which make it virtually impossible to perform the public offer. In fact, the very purpose for deleting Regulation 27(1)(a) was to remove any misapprehension that an offer once made can be withdrawn if it becomes economically not viable. We are of the considered opinion that the distinction sought to be made by Mr Nariman between a voluntary public offer and a triggered public offer is wholly misconceived. Accepting such a submission would defeat the very purpose for which the Takeover Code has been enacted.” OUR FINDINGS Re. Question (i) 26. Applying the decisions of this Court to the facts of the present case, we are in agreement with the finding recorded by the SAT that there was undue delay on the part of the SEBI in dealing with the DLO. No doubt, in a given case timeline prescribed under the Regulations may not be adhered to when the SEBI justifiably takes time in dealing with the complaints, as rightly submitted by Shri Datar, in the present case, the stand of the SEBI itself is that it could not go into the complaints for which the right forum was CLB. As regards the time taken in dealing with the complaints against the acquirers, the SEBI could have promptly proceeded with the matter. However, mere upholding of finding of SAT on the aspect of delay by SEBI is not enough to hold that the appellants are entitled to withdrawal of the public offer. The withdrawal has to be dealt with under Regulation 27, as held by this Court. The general principle is that public offer once made cannot be withdrawn. Exception to the rule is the specified situations under the Regulation as laid down by this Court in above decisions particularly in Nirma Industries Limited (Supra) (2013) 8 SCC 20 para 67). In the present case, though SEBI was not justified in causing delay in giving its comments on public offer, this by itself is not enough to justify withdrawal from public offer so long as the case does not fall under Regulation 27. First question is answered accordingly. Re. Question (ii) 27. As already observed above, under the scheme of the regulations public offer has to be made after due diligence (Regulation 22). Obligation of the board of directors under Regulation 23 against alienation of assets, issuance of unissued securities carrying voting rights or entering into material contracts is applicable only if approval of general body of shareholders is not obtained. We are not dealing with validity of imposition of fine on the target company for its decision in dealing with Vile Parle property, without approval of the general body as this issue is not before us. The fact remains that ex post facto approval of the general body has since been obtained. Moreover, SEBI had observed that this aspect of the matter will be separately enquired into. It is clear that under the scheme of Regulation 23, there is no bar to a decision with the approval of the general body of shareholders, if otherwise valid. The question whether unilateral decisions of the target company have rendered the carrying out of the public offer possible, is a question to be decided on facts of each case. In the present case, the SEBI as well as the SAT have concurrently held that public offer is capable of being carried out and has not become impossible. The assets are available with the target company. Finding has also been recorded about the circumstances preceding the public offer and the conduct of the acquirer which is based on record. The steps for development of the Vile Parle property had already been initiated and the acquirer had taken remedies before the CLB against the decision of the target company and had settled the matter with the target company. It is clear from the scheme of the regulations that there is no absolute bar for the target company to take decision about its assets, subject to compliance with statutory procedure and subject to the decision being otherwise valid. There is no doubt that against any mala fide, illegal or unjustified decision of the target company, remedies at appropriate fora are available to the aggrieved parties. Thus, there is no justification for automatic withdrawal from public offer without clear prejudice to the acquirer to the extent of rendering the carrying out of public offer impossible. In the facts of the present case, we do not find any ground to interfere with the concurrent finding of the SEBI and the SAT that request for withdrawal from public offer was not justified. Question (ii) is answered accordingly.28. In view of the above, we | 0[ds]26. Applying the decisions of this Court to the facts of the present case, we are in agreement with the finding recorded by the SAT that there was undue delay on the part of the SEBI in dealing with the DLO. No doubt, in a given case timeline prescribed under the Regulations may not be adhered to when the SEBI justifiably takes time in dealing with the complaints, as rightly submitted by Shri Datar, in the present case, the stand of the SEBI itself is that it could not go into the complaints for which the right forum was CLB. As regards the time taken in dealing with the complaints against the acquirers, the SEBI could have promptly proceeded with the matter. However, mere upholding of finding of SAT on the aspect of delay by SEBI is not enough to hold that the appellants are entitled to withdrawal of the public offer. The withdrawal has to be dealt with under Regulation 27, as held by this Court. The general principle is that public offer once made cannot be withdrawn. Exception to the rule is the specified situations under the Regulation as laid down by this Court in above decisions particularly in Nirma Industries Limited (Supra) (2013) 8 SCC 20 para 67). In the present case, though SEBI was not justified in causing delay in giving its comments on public offer, this by itself is not enough to justify withdrawal from public offer so long as the case does not fall under Regulation 27. First question is answered accordingly.As already observed above, under the scheme of the regulations public offer has to be made after due diligence (Regulation 22). Obligation of the board of directors under Regulation 23 against alienation of assets, issuance of unissued securities carrying voting rights or entering into material contracts is applicable only if approval of general body of shareholders is not obtained. We are not dealing with validity of imposition of fine on the target company for its decision in dealing with Vile Parle property, without approval of the general body as this issue is not before us. The fact remains that ex post facto approval of the general body has since been obtained. Moreover, SEBI had observed that this aspect of the matter will be separately enquired into. It is clear that under the scheme of Regulation 23, there is no bar to a decision with the approval of the general body of shareholders, if otherwise valid. The question whether unilateral decisions of the target company have rendered the carrying out of the public offer possible, is a question to be decided on facts of each case. In the present case, the SEBI as well as the SAT have concurrently held that public offer is capable of being carried out and has not become impossible. The assets are available with the target company. Finding has also been recorded about the circumstances preceding the public offer and the conduct of the acquirer which is based on record. The steps for development of the Vile Parle property had already been initiated and the acquirer had taken remedies before the CLB against the decision of the target company and had settled the matter with the target company. It is clear from the scheme of the regulations that there is no absolute bar for the target company to take decision about its assets, subject to compliance with statutory procedure and subject to the decision being otherwise valid. There is no doubt that against any mala fide, illegal or unjustified decision of the target company, remedies at appropriate fora are available to the aggrieved parties. Thus, there is no justification for automatic withdrawal from public offer without clear prejudice to the acquirer to the extent of rendering the carrying out of public offer impossible. In the facts of the present case, we do not find any ground to interfere with the concurrent finding of the SEBI and the SAT that request for withdrawal from public offer was not justified. Question (ii) is answered accordingly. | 0 | 10,041 | 736 | ### Instruction:
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respondent to withdraw the public offer would be detrimental to the overall interest of the shareholders. The only reason put forward by the respondent for withdrawal of the offer is that it is no longer economically viable to continue with the offer. Mr Nariman has referred to a tabular statement and data to show that there is no substantial variation in the share prices that ensued making of the public offer. Having seen the Table, we find substance in the submission of Mr Nariman that there is hardly any variation in the shares of the target company from 20-10-2011 till 30-11-2011. The variation seems to have been between Rs 78.10 (on 24-11-2011) and Rs 87.60 (on 20-10-2011). Such a variation cannot be said to be the result of the public offer. But this will not detract from the well-known phenomena that public announcement of the public offering affects the securities market and the shares of the target company. The impact is immediate.35. We are also not impressed by the submission of Mr Nariman that it has now become economically impossible to give effect to the public offer. This very submission has been rejected in Nirma Industries Ltd. We reiterate our opinion in Nirma Industries Ltd. that under Regulations 27(1)(b), (c) and (d), a public offer, once made, can only be permitted to be withdrawn in circumstances which make it virtually impossible to perform the public offer. In fact, the very purpose for deleting Regulation 27(1)(a) was to remove any misapprehension that an offer once made can be withdrawn if it becomes economically not viable. We are of the considered opinion that the distinction sought to be made by Mr Nariman between a voluntary public offer and a triggered public offer is wholly misconceived. Accepting such a submission would defeat the very purpose for which the Takeover Code has been enacted.” OUR FINDINGS Re. Question (i) 26. Applying the decisions of this Court to the facts of the present case, we are in agreement with the finding recorded by the SAT that there was undue delay on the part of the SEBI in dealing with the DLO. No doubt, in a given case timeline prescribed under the Regulations may not be adhered to when the SEBI justifiably takes time in dealing with the complaints, as rightly submitted by Shri Datar, in the present case, the stand of the SEBI itself is that it could not go into the complaints for which the right forum was CLB. As regards the time taken in dealing with the complaints against the acquirers, the SEBI could have promptly proceeded with the matter. However, mere upholding of finding of SAT on the aspect of delay by SEBI is not enough to hold that the appellants are entitled to withdrawal of the public offer. The withdrawal has to be dealt with under Regulation 27, as held by this Court. The general principle is that public offer once made cannot be withdrawn. Exception to the rule is the specified situations under the Regulation as laid down by this Court in above decisions particularly in Nirma Industries Limited (Supra) (2013) 8 SCC 20 para 67). In the present case, though SEBI was not justified in causing delay in giving its comments on public offer, this by itself is not enough to justify withdrawal from public offer so long as the case does not fall under Regulation 27. First question is answered accordingly. Re. Question (ii) 27. As already observed above, under the scheme of the regulations public offer has to be made after due diligence (Regulation 22). Obligation of the board of directors under Regulation 23 against alienation of assets, issuance of unissued securities carrying voting rights or entering into material contracts is applicable only if approval of general body of shareholders is not obtained. We are not dealing with validity of imposition of fine on the target company for its decision in dealing with Vile Parle property, without approval of the general body as this issue is not before us. The fact remains that ex post facto approval of the general body has since been obtained. Moreover, SEBI had observed that this aspect of the matter will be separately enquired into. It is clear that under the scheme of Regulation 23, there is no bar to a decision with the approval of the general body of shareholders, if otherwise valid. The question whether unilateral decisions of the target company have rendered the carrying out of the public offer possible, is a question to be decided on facts of each case. In the present case, the SEBI as well as the SAT have concurrently held that public offer is capable of being carried out and has not become impossible. The assets are available with the target company. Finding has also been recorded about the circumstances preceding the public offer and the conduct of the acquirer which is based on record. The steps for development of the Vile Parle property had already been initiated and the acquirer had taken remedies before the CLB against the decision of the target company and had settled the matter with the target company. It is clear from the scheme of the regulations that there is no absolute bar for the target company to take decision about its assets, subject to compliance with statutory procedure and subject to the decision being otherwise valid. There is no doubt that against any mala fide, illegal or unjustified decision of the target company, remedies at appropriate fora are available to the aggrieved parties. Thus, there is no justification for automatic withdrawal from public offer without clear prejudice to the acquirer to the extent of rendering the carrying out of public offer impossible. In the facts of the present case, we do not find any ground to interfere with the concurrent finding of the SEBI and the SAT that request for withdrawal from public offer was not justified. Question (ii) is answered accordingly.28. In view of the above, we
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26. Applying the decisions of this Court to the facts of the present case, we are in agreement with the finding recorded by the SAT that there was undue delay on the part of the SEBI in dealing with the DLO. No doubt, in a given case timeline prescribed under the Regulations may not be adhered to when the SEBI justifiably takes time in dealing with the complaints, as rightly submitted by Shri Datar, in the present case, the stand of the SEBI itself is that it could not go into the complaints for which the right forum was CLB. As regards the time taken in dealing with the complaints against the acquirers, the SEBI could have promptly proceeded with the matter. However, mere upholding of finding of SAT on the aspect of delay by SEBI is not enough to hold that the appellants are entitled to withdrawal of the public offer. The withdrawal has to be dealt with under Regulation 27, as held by this Court. The general principle is that public offer once made cannot be withdrawn. Exception to the rule is the specified situations under the Regulation as laid down by this Court in above decisions particularly in Nirma Industries Limited (Supra) (2013) 8 SCC 20 para 67). In the present case, though SEBI was not justified in causing delay in giving its comments on public offer, this by itself is not enough to justify withdrawal from public offer so long as the case does not fall under Regulation 27. First question is answered accordingly.As already observed above, under the scheme of the regulations public offer has to be made after due diligence (Regulation 22). Obligation of the board of directors under Regulation 23 against alienation of assets, issuance of unissued securities carrying voting rights or entering into material contracts is applicable only if approval of general body of shareholders is not obtained. We are not dealing with validity of imposition of fine on the target company for its decision in dealing with Vile Parle property, without approval of the general body as this issue is not before us. The fact remains that ex post facto approval of the general body has since been obtained. Moreover, SEBI had observed that this aspect of the matter will be separately enquired into. It is clear that under the scheme of Regulation 23, there is no bar to a decision with the approval of the general body of shareholders, if otherwise valid. The question whether unilateral decisions of the target company have rendered the carrying out of the public offer possible, is a question to be decided on facts of each case. In the present case, the SEBI as well as the SAT have concurrently held that public offer is capable of being carried out and has not become impossible. The assets are available with the target company. Finding has also been recorded about the circumstances preceding the public offer and the conduct of the acquirer which is based on record. The steps for development of the Vile Parle property had already been initiated and the acquirer had taken remedies before the CLB against the decision of the target company and had settled the matter with the target company. It is clear from the scheme of the regulations that there is no absolute bar for the target company to take decision about its assets, subject to compliance with statutory procedure and subject to the decision being otherwise valid. There is no doubt that against any mala fide, illegal or unjustified decision of the target company, remedies at appropriate fora are available to the aggrieved parties. Thus, there is no justification for automatic withdrawal from public offer without clear prejudice to the acquirer to the extent of rendering the carrying out of public offer impossible. In the facts of the present case, we do not find any ground to interfere with the concurrent finding of the SEBI and the SAT that request for withdrawal from public offer was not justified. Question (ii) is answered accordingly.
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Samarpan Varishtha Jan Parisar & Ors Vs. Rajendra Prasad Agarwal & Ors | injunction between the plaintiff – brother, who was given the property in question as a caretaker, the owner being sister of the plaintiff. An argument was raised before this Court that the possession of a caretaker can never be a possession in ones right and no suit for injunction under Section 6 of the Specific Relief Act was maintainable. It was held as under: 83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. xx xx xx 97. Principles of law which emerge in this case are crystallised as under: (1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. (3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. (4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour. (5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession. 21. In view of such finding, the appeal was allowed and possession of the suit premises was directed to be handed over to the appellant, the owner. 22. In another judgment reported as Behram Tejani & Ors. v. Azeem Jagani (2017) 2 SCC 759, the respondent in appeal filed a suit claiming injunction, restraining the defendants from dispossession of the plaintiff from the suit premises. This Court held as under: 14. Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances, the City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We, therefore, allow the appeal, set aside the judgment under appeal and restore the order dated 29-4-2013 passed by the Bombay City Civil Court in Notice of Motion No. 344 of 2013 in Suit No. 408 of 2013. 23. Now, adverting to the facts of the present appeal, the Respondent Nos. 1 and 2 – plaintiffs were permitted to stay in the old age home subject to certain payments to meet the necessary expenses of food and minor medical care. The possession of the respondent nos. 1 and 2 in a room of an old age home is that of a licensee permitted to enjoy the possession, but without creating any interest in the property. The appellants found the behavior of respondent nos. 1 and 2 not conducive to the fellow inmates and the staff of the old age home. This Court will not exercise a judicial review about the opinion of the appellants. On the legal issue, respondent Nos. 1 and 2, as licensees have a legal right to stay in the room of the old age home only so long as they comply with the terms and conditions of such license. Since respondent Nos. 1 and 2 had no legal right to protect their possession without complying with the corresponding obligations, as their possession is not a legal possession but only a permissive possession, they cannot seek any injunction to restrain the management of the old age home not to dispossess them. 24. It is an unfortunate situation when the parents cannot be taken care of by the children, but the fact remains that abandonment of parents by their children is now a hard fact of life. Parents do find it difficult to reconcile the situation that at that age they have to stay in old age home. Therefore, one can understand the mental trauma which the parents face in the evening of their life but the agony suffered by a parent cannot be a cause of disturbance to the other inmates or to the organizers who have resolved to take care and run the old age home. The inmates in the old age home are licensees and are expected to maintain a minimum level of discipline and good behaviour and not to cause disturbance to the fellow inmates who are also senior citizens. Therefore, if one parent is the cause of disruption of peace of other inmates in the old age home, the administration of the old age home is at liberty to terminate the license and ask the inmate to vacate the room allotted to them. Even if the organizers of the old age home are not able to meet the expectation or requirements of the plaintiffs, that would not confer a cause to the plaintiffs to disturb the other inmates. As a licensee, the plaintiffs have no right to stay in the accommodation allotted which is purely an approach to a human problem faced by the people in old age. The plaintiffs have even been offered alternative accommodation as well. 25. As a licensee, the plaintiffs cannot seek an injunction to stay in the old age home unless they allow other inmates, a peaceful co-existence. | 1[ds]In the present appeal, we are concerned with the possession falling in third category. This Court in a judgment reported as Associated Hotels of India v. R.N. Kapoor AIR 1959 SC 1262 has held that in case of a licensee, the legal possession continues with the owner as in terms of Section 52 of the Indian Easements Act, 1882, grant of a mere right to do upon the property of another, something which would in the absence of such right be unlawful. Thus, this is the essential characteristic which distinguishes a license from a lease.13. In Sohan Lal Naraindas v. Laxmidas Raghunath Gadit (1971) 1 SCC 276, it has been held that a lease creates an interest in the property whereas a license creates no estate or interest in the immovable property of the grantor. It was held as under:8. A licence confers a right to do or continue to do something in or upon immovable property of grantor which but for the grant of the right may be unlawful, but it creates no estate or interest in the immovable property of the grantor. A lease on the other hand creates an interest in the property demised.14. In Maganlal Radia v. State of Maharashtra 1971 Mh.L.J. 57, a lessee filed a petition under Article 226 of the Constitution for the writ of Certiorari to quash and set aside the orders passed by the Collector, Bombay calling him to vacate a plot situated on the Chowpatty Foreshore. One of the questions examined was whether the petitioner had a right to continue in possession for as long as possible. It was held as under:1. …As a matter of substantive law, therefore, the petitioner has no colour of right to remain in possession of the suit premises and has no answer to the respondents claim that he should vacate the land in question, and the present petition appears to have been filed merely for the purpose of gaining time and remaining in possession as long as possible.15. The High Court declined to entertain the petition on the ground that the petitioner was merely a licencee. It was held that the injustice that would have been caused if the present petition was entertained would be greater in view of the fact that the licence was for a purely temporary purpose.18. The Division Bench of Madras High Court in a judgment reported as General Merchant Association rep. by Secretary and Treasurer & Ors. v. The Corporation of Chennai , rep. by its Commissioner, Chennai 1998 SCC OnLine Mad 848 held that appellants were allottees of a shop in the Corporation Fruit Market. The shopkeepers challenged the action of the Corporation terminating their licence and calling upon the licencees to vacate and surrender possession of the respective shops in their occupation. It was held, while dismissing the writ petitions, as under:24. The entire case law on the subject revolves around the cardinal touch stone at which the relationship between the parties who claim to be licensors or licensees or lessors or lessees has to be decided is whether the grant creates an interest or estate in the property within the subject matter of the agreement. Delivery of exclusive possession, as has been held would not be conclusive to hold that the grant is a lease. The surrounding circumstances and the conduct of the parties as in the present case show that no interest in the property have not been created at any point of time in favour of the writ petitioners/licensees of the Municipal Corporation stalls and the claims of the petitioners that they are lessees is far-fetched and cannot be sustained.26. It is also equally well settled the position of a licensee after termination becomes unlawful and the licensee is not entitled to any injunction restraining the licensor from evicting him as unlike a tenant a licensee does not have judicial possession and the possession always remains with the licensor and what was granted is a privilege in terms of the licence, which in the absence of such a grant becomes unlawful.27. The occupation of the writ petitioners with respect to the stalls/shops in public market is referable to the licence originally granted as their status is that of a licensee. Once such a licence is terminated, the possession of the stalls become unlawful as they have no right and the possession of such possession after termination is not protected by any statutory provision. In terms of Section 63 of the Easements Act 1982, where licence is revoked the licensee is entitled to reasonable time to leave the property for removing all his goods which he has been allowed to place. A person continuing in the premises after the termination of licence, his status is as already pointed out is unlawful and he has no semblance of any right to continue in the premises.20. Another three-Judge Bench in a judgment reported as Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) through LRs (2012) 5 SCC 370 was examining the question of injunction between the plaintiff – brother, who was given the property in question as a caretaker, the owner being sister of the plaintiff. An argument was raised before this Court that the possession of a caretaker can never be a possession in ones right and no suit for injunction under Section 6 of the Specific Relief Act was maintainable. It was held as under:83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant.97. Principles of law which emerge in this case are crystallised as under:(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.(2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.21. In view of such finding, the appeal was allowed and possession of the suit premises was directed to be handed over to the appellant, the owner.22. In another judgment reported as Behram Tejani & Ors. v. Azeem Jagani (2017) 2 SCC 759, the respondent in appeal filed a suit claiming injunction, restraining the defendants from dispossession of the plaintiff from the suit premises. This Court held as under:14. Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances, the City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We, therefore, allow the appeal, set aside the judgment under appeal and restore the order dated 29-4-2013 passed by the Bombay City Civil Court in Notice of Motion No. 344 of 2013 in Suit No. 408 of 2013.23. Now, adverting to the facts of the present appeal, the Respondent Nos. 1 and 2 – plaintiffs were permitted to stay in the old age home subject to certain payments to meet the necessary expenses of food and minor medical care. The possession of the respondent nos. 1 and 2 in a room of an old age home is that of a licensee permitted to enjoy the possession, but without creating any interest in the property. The appellants found the behavior of respondent nos. 1 and 2 not conducive to the fellow inmates and the staff of the old age home. This Court will not exercise a judicial review about the opinion of the appellants. On the legal issue, respondent Nos. 1 and 2, as licensees have a legal right to stay in the room of the old age home only so long as they comply with the terms and conditions of such license. Since respondent Nos. 1 and 2 had no legal right to protect their possession without complying with the corresponding obligations, as their possession is not a legal possession but only a permissive possession, they cannot seek any injunction to restrain the management of the old age home not to dispossess them.24. It is an unfortunate situation when the parents cannot be taken care of by the children, but the fact remains that abandonment of parents by their children is now a hard fact of life. Parents do find it difficult to reconcile the situation that at that age they have to stay in old age home. Therefore, one can understand the mental trauma which the parents face in the evening of their life but the agony suffered by a parent cannot be a cause of disturbance to the other inmates or to the organizers who have resolved to take care and run the old age home. The inmates in the old age home are licensees and are expected to maintain a minimum level of discipline and good behaviour and not to cause disturbance to the fellow inmates who are also senior citizens. Therefore, if one parent is the cause of disruption of peace of other inmates in the old age home, the administration of the old age home is at liberty to terminate the license and ask the inmate to vacate the room allotted to them. Even if the organizers of the old age home are not able to meet the expectation or requirements of the plaintiffs, that would not confer a cause to the plaintiffs to disturb the other inmates. As a licensee, the plaintiffs have no right to stay in the accommodation allotted which is purely an approach to a human problem faced by the people in old age. The plaintiffs have even been offered alternative accommodation as well.25. As a licensee, the plaintiffs cannot seek an injunction to stay in the old age home unless they allow other inmates, a peaceful co-existence. | 1 | 3,764 | 1,986 | ### 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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injunction between the plaintiff – brother, who was given the property in question as a caretaker, the owner being sister of the plaintiff. An argument was raised before this Court that the possession of a caretaker can never be a possession in ones right and no suit for injunction under Section 6 of the Specific Relief Act was maintainable. It was held as under: 83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. xx xx xx 97. Principles of law which emerge in this case are crystallised as under: (1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. (3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. (4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour. (5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession. 21. In view of such finding, the appeal was allowed and possession of the suit premises was directed to be handed over to the appellant, the owner. 22. In another judgment reported as Behram Tejani & Ors. v. Azeem Jagani (2017) 2 SCC 759, the respondent in appeal filed a suit claiming injunction, restraining the defendants from dispossession of the plaintiff from the suit premises. This Court held as under: 14. Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances, the City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We, therefore, allow the appeal, set aside the judgment under appeal and restore the order dated 29-4-2013 passed by the Bombay City Civil Court in Notice of Motion No. 344 of 2013 in Suit No. 408 of 2013. 23. Now, adverting to the facts of the present appeal, the Respondent Nos. 1 and 2 – plaintiffs were permitted to stay in the old age home subject to certain payments to meet the necessary expenses of food and minor medical care. The possession of the respondent nos. 1 and 2 in a room of an old age home is that of a licensee permitted to enjoy the possession, but without creating any interest in the property. The appellants found the behavior of respondent nos. 1 and 2 not conducive to the fellow inmates and the staff of the old age home. This Court will not exercise a judicial review about the opinion of the appellants. On the legal issue, respondent Nos. 1 and 2, as licensees have a legal right to stay in the room of the old age home only so long as they comply with the terms and conditions of such license. Since respondent Nos. 1 and 2 had no legal right to protect their possession without complying with the corresponding obligations, as their possession is not a legal possession but only a permissive possession, they cannot seek any injunction to restrain the management of the old age home not to dispossess them. 24. It is an unfortunate situation when the parents cannot be taken care of by the children, but the fact remains that abandonment of parents by their children is now a hard fact of life. Parents do find it difficult to reconcile the situation that at that age they have to stay in old age home. Therefore, one can understand the mental trauma which the parents face in the evening of their life but the agony suffered by a parent cannot be a cause of disturbance to the other inmates or to the organizers who have resolved to take care and run the old age home. The inmates in the old age home are licensees and are expected to maintain a minimum level of discipline and good behaviour and not to cause disturbance to the fellow inmates who are also senior citizens. Therefore, if one parent is the cause of disruption of peace of other inmates in the old age home, the administration of the old age home is at liberty to terminate the license and ask the inmate to vacate the room allotted to them. Even if the organizers of the old age home are not able to meet the expectation or requirements of the plaintiffs, that would not confer a cause to the plaintiffs to disturb the other inmates. As a licensee, the plaintiffs have no right to stay in the accommodation allotted which is purely an approach to a human problem faced by the people in old age. The plaintiffs have even been offered alternative accommodation as well. 25. As a licensee, the plaintiffs cannot seek an injunction to stay in the old age home unless they allow other inmates, a peaceful co-existence.
### Response:
1
### Explanation:
De Sequeira (Dead) through LRs (2012) 5 SCC 370 was examining the question of injunction between the plaintiff – brother, who was given the property in question as a caretaker, the owner being sister of the plaintiff. An argument was raised before this Court that the possession of a caretaker can never be a possession in ones right and no suit for injunction under Section 6 of the Specific Relief Act was maintainable. It was held as under:83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant.97. Principles of law which emerge in this case are crystallised as under:(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.(2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.21. In view of such finding, the appeal was allowed and possession of the suit premises was directed to be handed over to the appellant, the owner.22. In another judgment reported as Behram Tejani & Ors. v. Azeem Jagani (2017) 2 SCC 759, the respondent in appeal filed a suit claiming injunction, restraining the defendants from dispossession of the plaintiff from the suit premises. This Court held as under:14. Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances, the City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We, therefore, allow the appeal, set aside the judgment under appeal and restore the order dated 29-4-2013 passed by the Bombay City Civil Court in Notice of Motion No. 344 of 2013 in Suit No. 408 of 2013.23. Now, adverting to the facts of the present appeal, the Respondent Nos. 1 and 2 – plaintiffs were permitted to stay in the old age home subject to certain payments to meet the necessary expenses of food and minor medical care. The possession of the respondent nos. 1 and 2 in a room of an old age home is that of a licensee permitted to enjoy the possession, but without creating any interest in the property. The appellants found the behavior of respondent nos. 1 and 2 not conducive to the fellow inmates and the staff of the old age home. This Court will not exercise a judicial review about the opinion of the appellants. On the legal issue, respondent Nos. 1 and 2, as licensees have a legal right to stay in the room of the old age home only so long as they comply with the terms and conditions of such license. Since respondent Nos. 1 and 2 had no legal right to protect their possession without complying with the corresponding obligations, as their possession is not a legal possession but only a permissive possession, they cannot seek any injunction to restrain the management of the old age home not to dispossess them.24. It is an unfortunate situation when the parents cannot be taken care of by the children, but the fact remains that abandonment of parents by their children is now a hard fact of life. Parents do find it difficult to reconcile the situation that at that age they have to stay in old age home. Therefore, one can understand the mental trauma which the parents face in the evening of their life but the agony suffered by a parent cannot be a cause of disturbance to the other inmates or to the organizers who have resolved to take care and run the old age home. The inmates in the old age home are licensees and are expected to maintain a minimum level of discipline and good behaviour and not to cause disturbance to the fellow inmates who are also senior citizens. Therefore, if one parent is the cause of disruption of peace of other inmates in the old age home, the administration of the old age home is at liberty to terminate the license and ask the inmate to vacate the room allotted to them. Even if the organizers of the old age home are not able to meet the expectation or requirements of the plaintiffs, that would not confer a cause to the plaintiffs to disturb the other inmates. As a licensee, the plaintiffs have no right to stay in the accommodation allotted which is purely an approach to a human problem faced by the people in old age. The plaintiffs have even been offered alternative accommodation as well.25. As a licensee, the plaintiffs cannot seek an injunction to stay in the old age home unless they allow other inmates, a peaceful co-existence.
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Rajesh Mishra @ Mitra Vs. The State of Goa, Through Police Inspector | P.K.Basheer and others (cited supra) held in paras 13 and 14 of the judgment thus:13 - Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65 (B) (2). Following are the specified conditions under Section 65B (2) of the Evidence Act:(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:(a) There must be a certificate which identifies the electronic record containing the statement;(b) The certificate must describe the manner in which the electronic record was produced;(c) The certificate must furnish the particulars of the device involved in the production of that record;(d) The certificate must deal with the applicable conditions mentioned under Section 65 B (2) of the Evidence Act; and(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.23. There is no compliance of Section 65 B (4) of the Evidence Act as above and, therefore, this circumstance has not been proved by the prosecution.24. As far as the injuries on the person of the appellant is concerned, the relevant evidence is found in the testimonies of PW 6 Vinay Miniz, PW 12 Harankumar Das, PW 19 Dr. Oscar Lourence and PW 42 Bishamber Singh. PW 12 Harankumar Das, PW 6 Vinay Miniz and PW 12 Bishamber Singh are the employees of Cipla Company.25. According to Vinay Miniz PW 6, the appellant had offered him job in Cipla Company. On 18.1.2011 when he joined the duties in the second shift, the appellant as a Supervisor put him inside the Company at about 2.45 p.m. He did not notice anything on his hands, however, while leaving the Company at 11.00 p.m. When he met the appellant and noticed bandage on his right hand thumb. Similarly, PW 12 also testified that he noticed bandage on right thumb of the appellant on 18.1.2011 at 10.30 p.m. when Harankumar Das PW 12 asked the appellant as to what had happened upon which the appellant is said to have informed him that he had met with an accident. Merely because there was a bandage on the right hand thumb of the appellant noticed by these witnesses would not ifso facto mean that while assaulting the deceased he sustained injuries. It is significant to note that PW 19 Dr. Oxcar Lourence who examined the appellant on 20.1.2011 deposed that the appellant had a wound on his thumb. The injury certificate issued by the doctor is at Ex.63.When the doctor was cross-examined, he gave material admissions that the accused were examined by him in the casualty in the presence of policemen and that all of them were tied with ropes. The doctor further admits that he did not record the age and dimension in the injury certificate nor mentioned anything about the cause of injuries. He unequivocally admits that the injuries on the person of the appellant could have been caused due to a fall. He also admits that usually incised would is caused due to a knife, however, no incise wound was noticed on the person of the appellant. This totally negates the prosecution case and also the circumstance that the appellant had sustained injuries while eliminating the deceased at the relevant time with a knife.26. We are unable to concur with the finding of the learned Sessions Judge that the circumstances, relied upon are individually proved and even assuming to be proved, are sufficient to return a finding of guilt of the appellant. The circumstances on the basis of which the learned trial Judge has returned his finding are not in consonance with the evidence on record. It, therefore, follows that the prosecution has failed to establish a complete chain of circumstances proving the complicity of the appellant in the murder of deceased Rupesh. As such, after having closely scrutinized the evidence on record, it is apparent that none of the aforesaid circumstances if taken together, would show that the appellant was involved in the crime. None of the circumstances are consistent and conclusive in nature since there are many fragments in the chain. | 1[ds]25. According to Vinay Miniz PW 6, the appellant had offered him job in Cipla Company. On 18.1.2011 when he joined the duties in the second shift, the appellant as a Supervisor put him inside the Company at about 2.45 p.m. He did not notice anything on his hands, however, while leaving the Company at 11.00 p.m. When he met the appellant and noticed bandage on his right hand thumb. Similarly, PW 12 also testified that he noticed bandage on right thumb of the appellant on 18.1.2011 at 10.30 p.m. when Harankumar Das PW 12 asked the appellant as to what had happened upon which the appellant is said to have informed him that he had met with an accident. Merely because there was a bandage on the right hand thumb of the appellant noticed by these witnesses would not ifso facto mean that while assaulting the deceased he sustained injuries. It is significant to note that PW 19 Dr. Oxcar Lourence who examined the appellant on 20.1.2011 deposed that the appellant had a wound on his thumb. The injury certificate issued by the doctor is at Ex.63.When the doctor washe gave material admissions that the accused were examined by him in the casualty in the presence of policemen and that all of them were tied with ropes. The doctor further admits that he did not record the age and dimension in the injury certificate nor mentioned anything about the cause of injuries. He unequivocally admits that the injuries on the person of the appellant could have been caused due to a fall. He also admits that usually incised would is caused due to a knife, however, no incise wound was noticed on the person of the appellant. This totally negates the prosecution case and also the circumstance that the appellant had sustained injuries while eliminating the deceased at the relevant time with a knife.26. We are unable to concur with the finding of the learned Sessions Judge that the circumstances, relied upon are individually proved and even assuming to be proved, are sufficient to return a finding of guilt of the appellant. The circumstances on the basis of which the learned trial Judge has returned his finding are not in consonance with the evidence on record. It, therefore, follows that the prosecution has failed to establish a complete chain of circumstances proving the complicity of the appellant in the murder of deceased Rupesh. As such, after having closely scrutinized the evidence on record, it is apparent that none of the aforesaid circumstances if taken together, would show that the appellant was involved in the crime. None of the circumstances are consistent and conclusive in nature since there are many fragments in the chain. | 1 | 4,725 | 490 | ### 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:
P.K.Basheer and others (cited supra) held in paras 13 and 14 of the judgment thus:13 - Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65 (B) (2). Following are the specified conditions under Section 65B (2) of the Evidence Act:(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:(a) There must be a certificate which identifies the electronic record containing the statement;(b) The certificate must describe the manner in which the electronic record was produced;(c) The certificate must furnish the particulars of the device involved in the production of that record;(d) The certificate must deal with the applicable conditions mentioned under Section 65 B (2) of the Evidence Act; and(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.23. There is no compliance of Section 65 B (4) of the Evidence Act as above and, therefore, this circumstance has not been proved by the prosecution.24. As far as the injuries on the person of the appellant is concerned, the relevant evidence is found in the testimonies of PW 6 Vinay Miniz, PW 12 Harankumar Das, PW 19 Dr. Oscar Lourence and PW 42 Bishamber Singh. PW 12 Harankumar Das, PW 6 Vinay Miniz and PW 12 Bishamber Singh are the employees of Cipla Company.25. According to Vinay Miniz PW 6, the appellant had offered him job in Cipla Company. On 18.1.2011 when he joined the duties in the second shift, the appellant as a Supervisor put him inside the Company at about 2.45 p.m. He did not notice anything on his hands, however, while leaving the Company at 11.00 p.m. When he met the appellant and noticed bandage on his right hand thumb. Similarly, PW 12 also testified that he noticed bandage on right thumb of the appellant on 18.1.2011 at 10.30 p.m. when Harankumar Das PW 12 asked the appellant as to what had happened upon which the appellant is said to have informed him that he had met with an accident. Merely because there was a bandage on the right hand thumb of the appellant noticed by these witnesses would not ifso facto mean that while assaulting the deceased he sustained injuries. It is significant to note that PW 19 Dr. Oxcar Lourence who examined the appellant on 20.1.2011 deposed that the appellant had a wound on his thumb. The injury certificate issued by the doctor is at Ex.63.When the doctor was cross-examined, he gave material admissions that the accused were examined by him in the casualty in the presence of policemen and that all of them were tied with ropes. The doctor further admits that he did not record the age and dimension in the injury certificate nor mentioned anything about the cause of injuries. He unequivocally admits that the injuries on the person of the appellant could have been caused due to a fall. He also admits that usually incised would is caused due to a knife, however, no incise wound was noticed on the person of the appellant. This totally negates the prosecution case and also the circumstance that the appellant had sustained injuries while eliminating the deceased at the relevant time with a knife.26. We are unable to concur with the finding of the learned Sessions Judge that the circumstances, relied upon are individually proved and even assuming to be proved, are sufficient to return a finding of guilt of the appellant. The circumstances on the basis of which the learned trial Judge has returned his finding are not in consonance with the evidence on record. It, therefore, follows that the prosecution has failed to establish a complete chain of circumstances proving the complicity of the appellant in the murder of deceased Rupesh. As such, after having closely scrutinized the evidence on record, it is apparent that none of the aforesaid circumstances if taken together, would show that the appellant was involved in the crime. None of the circumstances are consistent and conclusive in nature since there are many fragments in the chain.
### Response:
1
### Explanation:
25. According to Vinay Miniz PW 6, the appellant had offered him job in Cipla Company. On 18.1.2011 when he joined the duties in the second shift, the appellant as a Supervisor put him inside the Company at about 2.45 p.m. He did not notice anything on his hands, however, while leaving the Company at 11.00 p.m. When he met the appellant and noticed bandage on his right hand thumb. Similarly, PW 12 also testified that he noticed bandage on right thumb of the appellant on 18.1.2011 at 10.30 p.m. when Harankumar Das PW 12 asked the appellant as to what had happened upon which the appellant is said to have informed him that he had met with an accident. Merely because there was a bandage on the right hand thumb of the appellant noticed by these witnesses would not ifso facto mean that while assaulting the deceased he sustained injuries. It is significant to note that PW 19 Dr. Oxcar Lourence who examined the appellant on 20.1.2011 deposed that the appellant had a wound on his thumb. The injury certificate issued by the doctor is at Ex.63.When the doctor washe gave material admissions that the accused were examined by him in the casualty in the presence of policemen and that all of them were tied with ropes. The doctor further admits that he did not record the age and dimension in the injury certificate nor mentioned anything about the cause of injuries. He unequivocally admits that the injuries on the person of the appellant could have been caused due to a fall. He also admits that usually incised would is caused due to a knife, however, no incise wound was noticed on the person of the appellant. This totally negates the prosecution case and also the circumstance that the appellant had sustained injuries while eliminating the deceased at the relevant time with a knife.26. We are unable to concur with the finding of the learned Sessions Judge that the circumstances, relied upon are individually proved and even assuming to be proved, are sufficient to return a finding of guilt of the appellant. The circumstances on the basis of which the learned trial Judge has returned his finding are not in consonance with the evidence on record. It, therefore, follows that the prosecution has failed to establish a complete chain of circumstances proving the complicity of the appellant in the murder of deceased Rupesh. As such, after having closely scrutinized the evidence on record, it is apparent that none of the aforesaid circumstances if taken together, would show that the appellant was involved in the crime. None of the circumstances are consistent and conclusive in nature since there are many fragments in the chain.
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State Of Andhra Pradesh Vs. Challa Ramkrishna Reddy | her family. She stated that her daughter, who was 5 years of age, and her sister who was looking after the daughter, were permitted to have interview with her only once in a month. Considering the petition, Bhagwati, J. (as he then was) observed at AIR pp. 753-54 in para 8 as under : (SCC pp. 619-20, para 9) 9. The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that article. The expression personal liberty occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi case (1978 SC 212) and it has been held in that case that the expression personal liberty used in that article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which have been raised to the status of distinct fundamental rights and given additional protection under Article 19. There can therefore be no doubt that personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21. * (See also : Sunil Batra v. Delhi Admn. (1978 SC 289) and Sunil Batra (II) v. Delhi Admn. (1979 SC 329) 18. Thus, fundamental rights, which also include basic human rights, continue to be available to a prisoner and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which has been rejected several times by this Court 19. In N. Nagendra Rao & Co. v. State of A.P. (1994 SC 798) it was observed : (SCC p. 235, para 25) 25. But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalisation of the functions of the State as sovereign and non-sovereign or governmental and non-governmental is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the financial instability of the infant American States rather than to the stability of the doctrines theoretical foundation, or because of logical and practical ground, or that there could be no legal right as against the State which made the law gradually gave way to the movement from, State irresponsibility to State responsibility. In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. * 20. The whole question was again examined by this Court in Common Cause, A Registered Society v. Union of India (1999 SC 503) in which the entire history relating to the institution of suits by or against the State or, to be precise against the Government of India, beginning from the time of the East India Company right up to the stage of the Constitution, was considered and the theory of immunity was rejected. In this process of judicial advancement, Kasturi Lal case (1964 SC 10) has paled into insignificance and is no longer of any binding value 21. This Court, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including police officers and personnel for their tortious act. Though most of these cases were decided under public law domain, it would not make any difference as in the instant case, two vital factors, namely, police negligence as also the Sub-Inspector being in conspiracy are established as a fact. | 0[ds]9. The very manner in which the culprits gained entry into the jail shows that it could not have happened but for the negligence on the part of the police to guard the jail property and to ensure the safety of prisoners, as required by Rule 48 of the Madras Rules aforesaid. It may be noted that Kumool District is one of the districts in Rayalaseema area of the State, notorious for factions and blood feuds. Use of bombs is not a rare occurrence in that area. In such a situation, and more so when a specific request was made for additional precautions, the failure not only to provide additional precautions, but the failure to provide even the normal guard duty cannot but be termed as gross negligence. It is an omission to perform the statutory responsibility placed upon them by Rule 48 of the Madras Prisons Rules. It is a failure to take reasonable care. On Issue 2 we disagree with the learned trial Judge. *10. It would thus be seen from the above that the deceased as also Challa Ramkrishna Reddy who apprehended danger to their lives, complained to the police and requested for adequate police guards being deployed at the jail, but their requests were not heeded to and true to their apprehension, a bomb was thrown at them which caused the death of Challa Chinnappa Reddy and injuries to Challa Ramkrishna Reddy (PW 1). In this process, one of the three persons, who was sleeping near the jail, was also killed. The Policer was also in the conspiracy and it was for this reason that in spite of their requests, adequate security guards were not provided. Even the normal strength of the guards who should be on duty at night was not provided and only two constables, instead of nine, were put on duty. Since ther of Police himself was in the conspiracy, the act in not providing adequate security at the jail cannot be treated to be an act or omission in pursuance of a statutory duty, namely, Rule 48 of the Madras Prisons Rules, referred to by the High Court. Moreover, the action was wholly mala fide and, therefore, there was no question of the provisions of Article 72 being invoked to defeat the claim of the respondents as the protection of shorter period of limitation, contemplated by that article, is available only in respect of bona fide acts11. In our opinion, the High Court in the circumstances of this case, was justified in not applying the provisions of Article 72 and invoking the provisions of Article 113 (the residuary article) to hold that the suit was within limitationWe may now consider the next question relating to the immunity of the State Government in respect of its sovereign acts12. The trial court relying upon the decision of this Court in Kasturi Lal Ralia Ram Jain v. State of U.P. 1964 SC 10 dismissed the suit on the ground that establishment and maintenance of jail being a part of the sovereign activity of the Government, a suit for damages would not lie as the State was immune from being proceeded against in a court of law on that account. The High Court also relied upon the decision in Kasturi Lal case 1964 SC 10 but it did not dismiss the appeal on that ground. It went a step further and considered the provisions contained in Article 21 of the Constitution and came to the conclusion that since the right to life was part of the fundamental rights of a person and that person cannot be deprived of his life and liberty except in accordance with the procedure established by law, the suit was liable to be decreed as the officers of the State in not providing adequate security to the deceased, who was lodged with his son in the jail, had acted negligentlyImmunity of the State for its sovereign acts is claimed on the basis of the old English maxim that the king can do no wrong. But even in England, the law relating to immunity has undergone a change with the enactment of the Crown Proceedings Act, 194713. Thus, the Crown in England does not now enjoy absolute immunity and may be held vicariously liable for the tortious acts of its officers and servants14. The maxim that the king can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof15. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rightsPrison has been defined in Section 3(1) of the Prisons Act, 1894 as any jail or place used permanently or temporarily under the general or special orders of the State Government for the detention of prisoners. Section 3 contemplates three kinds of prisoners.n (2) of Section 3 defines criminal prisoner as a prisoner duly committed to custody under the writ, warrant or order of any court or authority exercising criminal jurisdiction or by order of a court martial. Convicted criminal prisoner has been defined in Section 3(3) as a prisoner under sentence of a court or court martial and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882 or under the Prisoners Act, 1871. The corresponding provision in the new Code of Criminal Procedure is not being indicated as it is not necessary for purposes of this case. Civil prisoner has been defined in Section 3(4) as a prisoner who is not a criminal prisoner Thus, according to the definition under the Prisoners Act, there is a convict, there is an undertrial and there is a civil prisoner who may be a detenu under preventive detention law. None of the three categories of prisoners lose their fundamental rights on being placed inside a prison. The restriction placed on their right to movement is the result of their conviction or involvement in crime. Thus, a person (prisoner) is deprived of his personal liberty in accordance with the procedure established by law which, as pointed out in Maneka Gandhi v. Union of India (1978 SC 212) must be reasonable, fair and just16. The rights of prisoners, including their fundamental rights have been culled out by this Court in a large number of decisions, all of which may not be referred to here. In State of Maharashtra v. Prabhakar Pandurang Sanzgiri 1965 SC 155 it was held that conditions of detention cannot be extended to deprivation of other fundamental rights and the detenu, who had written a book in Marathi, could not be prohibited from sending the book outside the jail for its publication. In D. Bhuvan Mohan Patnaik v. State of A.P. (1974 SC 140) it was laid down that convicts are not denuded of all the fundamental rights they possess20. The whole question was again examined by this Court in Common Cause, A Registered Society v. Union of India (1999 SC 503) in which the entire history relating to the institution of suits by or against the State or, to be precise against the Government of India, beginning from the time of the East India Company right up to the stage of the Constitution, was considered and the theory of immunity was rejected. In this process of judicial advancement, Kasturi Lal case (1964 SC 10) has paled into insignificance and is no longer of any binding value21. This Court, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including police officers and personnel for their tortious act. Though most of these cases were decided under public law domain, it would not make any difference as in the instant case, two vital factors, namely, police negligence as also ther being in conspiracy are established as a fact. | 0 | 5,786 | 1,582 | ### Instruction:
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her family. She stated that her daughter, who was 5 years of age, and her sister who was looking after the daughter, were permitted to have interview with her only once in a month. Considering the petition, Bhagwati, J. (as he then was) observed at AIR pp. 753-54 in para 8 as under : (SCC pp. 619-20, para 9) 9. The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that article. The expression personal liberty occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi case (1978 SC 212) and it has been held in that case that the expression personal liberty used in that article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which have been raised to the status of distinct fundamental rights and given additional protection under Article 19. There can therefore be no doubt that personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21. * (See also : Sunil Batra v. Delhi Admn. (1978 SC 289) and Sunil Batra (II) v. Delhi Admn. (1979 SC 329) 18. Thus, fundamental rights, which also include basic human rights, continue to be available to a prisoner and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which has been rejected several times by this Court 19. In N. Nagendra Rao & Co. v. State of A.P. (1994 SC 798) it was observed : (SCC p. 235, para 25) 25. But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalisation of the functions of the State as sovereign and non-sovereign or governmental and non-governmental is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the financial instability of the infant American States rather than to the stability of the doctrines theoretical foundation, or because of logical and practical ground, or that there could be no legal right as against the State which made the law gradually gave way to the movement from, State irresponsibility to State responsibility. In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. * 20. The whole question was again examined by this Court in Common Cause, A Registered Society v. Union of India (1999 SC 503) in which the entire history relating to the institution of suits by or against the State or, to be precise against the Government of India, beginning from the time of the East India Company right up to the stage of the Constitution, was considered and the theory of immunity was rejected. In this process of judicial advancement, Kasturi Lal case (1964 SC 10) has paled into insignificance and is no longer of any binding value 21. This Court, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including police officers and personnel for their tortious act. Though most of these cases were decided under public law domain, it would not make any difference as in the instant case, two vital factors, namely, police negligence as also the Sub-Inspector being in conspiracy are established as a fact.
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suit was within limitationWe may now consider the next question relating to the immunity of the State Government in respect of its sovereign acts12. The trial court relying upon the decision of this Court in Kasturi Lal Ralia Ram Jain v. State of U.P. 1964 SC 10 dismissed the suit on the ground that establishment and maintenance of jail being a part of the sovereign activity of the Government, a suit for damages would not lie as the State was immune from being proceeded against in a court of law on that account. The High Court also relied upon the decision in Kasturi Lal case 1964 SC 10 but it did not dismiss the appeal on that ground. It went a step further and considered the provisions contained in Article 21 of the Constitution and came to the conclusion that since the right to life was part of the fundamental rights of a person and that person cannot be deprived of his life and liberty except in accordance with the procedure established by law, the suit was liable to be decreed as the officers of the State in not providing adequate security to the deceased, who was lodged with his son in the jail, had acted negligentlyImmunity of the State for its sovereign acts is claimed on the basis of the old English maxim that the king can do no wrong. But even in England, the law relating to immunity has undergone a change with the enactment of the Crown Proceedings Act, 194713. Thus, the Crown in England does not now enjoy absolute immunity and may be held vicariously liable for the tortious acts of its officers and servants14. The maxim that the king can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof15. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rightsPrison has been defined in Section 3(1) of the Prisons Act, 1894 as any jail or place used permanently or temporarily under the general or special orders of the State Government for the detention of prisoners. Section 3 contemplates three kinds of prisoners.n (2) of Section 3 defines criminal prisoner as a prisoner duly committed to custody under the writ, warrant or order of any court or authority exercising criminal jurisdiction or by order of a court martial. Convicted criminal prisoner has been defined in Section 3(3) as a prisoner under sentence of a court or court martial and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882 or under the Prisoners Act, 1871. The corresponding provision in the new Code of Criminal Procedure is not being indicated as it is not necessary for purposes of this case. Civil prisoner has been defined in Section 3(4) as a prisoner who is not a criminal prisoner Thus, according to the definition under the Prisoners Act, there is a convict, there is an undertrial and there is a civil prisoner who may be a detenu under preventive detention law. None of the three categories of prisoners lose their fundamental rights on being placed inside a prison. The restriction placed on their right to movement is the result of their conviction or involvement in crime. Thus, a person (prisoner) is deprived of his personal liberty in accordance with the procedure established by law which, as pointed out in Maneka Gandhi v. Union of India (1978 SC 212) must be reasonable, fair and just16. The rights of prisoners, including their fundamental rights have been culled out by this Court in a large number of decisions, all of which may not be referred to here. In State of Maharashtra v. Prabhakar Pandurang Sanzgiri 1965 SC 155 it was held that conditions of detention cannot be extended to deprivation of other fundamental rights and the detenu, who had written a book in Marathi, could not be prohibited from sending the book outside the jail for its publication. In D. Bhuvan Mohan Patnaik v. State of A.P. (1974 SC 140) it was laid down that convicts are not denuded of all the fundamental rights they possess20. The whole question was again examined by this Court in Common Cause, A Registered Society v. Union of India (1999 SC 503) in which the entire history relating to the institution of suits by or against the State or, to be precise against the Government of India, beginning from the time of the East India Company right up to the stage of the Constitution, was considered and the theory of immunity was rejected. In this process of judicial advancement, Kasturi Lal case (1964 SC 10) has paled into insignificance and is no longer of any binding value21. This Court, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including police officers and personnel for their tortious act. Though most of these cases were decided under public law domain, it would not make any difference as in the instant case, two vital factors, namely, police negligence as also ther being in conspiracy are established as a fact.
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Ram Surat Singh Vs. Harish Chandra Mahto | Sarkaria, J.1. The appellant was elected as a member of the Bihar Legislative Assembly from 69 - Belsand Assembly Constituency, securing 30,501 votes as against 18,371 polled by his nearest rival Sri Ramanand Singh. The poll was held on March 5, 1972. A re-poll of polling stations situate in village Aura was held on March 10, 1972.2. Harish Chandra Mahto, respondent herein, an elector of the Constituency, filed an election petition in the Patna High Court calling in question the election of the returned candidate inter alia on the ground of undue influence exercised at several polling stations including those located at Sanbarsa, Narwana, Fatehpur and Manguraha. It was alleged that the returned candidate, his agents and supporters with the consent and connivance of the returned candidate, drove away the voters, seized the polling stations and procured bogus votes in favour of the returned candidate. In Sch. IV, appended to the election petition, the names of the voters who were allegedly restrained by the returned candidate or his agents or supporters at different polling booths on the date of the poll were mentioned.3. The High Court framed the issues and recorded the entire evidence adduced by the parties, The petitioner examined 54 witnesses, including two who were simply tendered. The returned candidate examined 135 witnesses, in rebuttal, apart from himself appearing in the witness stand as R. W. 136. Almost at the close of the final arguments, the election petitioner on January 17, 1974, moved an application before the High Court praying inter alia for permission to inspect the counterfoils of the ballot papers of eight voters who as R. Ws. 10, 11, 12, 14, 37, 115, 118 and 136 had stated that on the polling day they were absent from the village. It was asserted that the inspection of the counterfoils would show that votes had been polled in their names. The returned candidate opposed the application. By an order dated February 5, l974, the learned trial Judge allowed inspection of the counterfoils pertaining to R. Ws. 10, 11, 12, 14, 37, 115, 118 and 136, who were to cast their votes in the polling booths located at village Narwara. Aggrieved by that order the returned candidate has filed this appeal after obtaining special leave under Art. 136 of the Constitution.4. This Court has held in a series of decisions that inspection of ballot papers or their counterfoils is not to be allowed as a matter of course as such an order touches upon the secrecy of the ballot. Such inspection can be allowed only if a good ground for the same is made out by the petitioner. He must adequately state all the material facts in his election petition on which he relies for such a claim. Furthermore, the Court must be satisfied that for the purpose of deciding the case and doing complete and effectual justice between the parties it is imperatively necessary to order the inspection.5. These tests, in our opinion, were not satisfied in the instant case. There was no allegation, even in an embryonic form, in the election petition or in the Schedule appended thereto that undue influence or coercion was exercised upon these eight persons or that bogus votes were cast in their names. Nor was any evidence adduced by the petitioner that these eight persons had been spared away from the, polling station under threat, duress or undue influence proceeding from the resumed candidate or his agents and supporters, and thereafter votes were cast by personation in their names in favour of the returned candidate.6. Inspection of the counterfoils of the ballots could not be allowed to establish a plea for which there was no adequate foundation either in the pleading or in the evidence of the petitioner. Such an inspection will not yield evidence of any specific fact in issue, excepting perhaps that of discrediting the testimony of these eight witnesses examined by the opposite party. Manifestly this petitioner under the cover of the court s order wants to fish out evidence - a course which is not permissible.7. For the reasons aforesaid, we are of the opinion that the learned trial Judge was in error in allowing inspection of the counterfoils of these ballot-papers. Of course, after recording its findings if the High Court feels the need for a re-count on legally tenable grounds nothing said here stands in its way. | 1[ds]4. This Court has held in a series of decisions that inspection of ballot papers or their counterfoils is not to be allowed as a matter of course as such an order touches upon the secrecy of the ballot. Such inspection can be allowed only if a good ground for the same is made out by the petitioner. He must adequately state all the material facts in his election petition on which he relies for such a claim. Furthermore, the Court must be satisfied that for the purpose of deciding the case and doing complete and effectual justice between the parties it is imperatively necessary to order the inspection.These tests, in our opinion, were not satisfied in the instant case. There was no allegation, even in an embryonic form, in the election petition or in the Schedule appended thereto that undue influence or coercion was exercised upon these eight persons or that bogus votes were cast in their names. Nor was any evidence adduced by the petitioner that these eight persons had been spared away from the, polling station under threat, duress or undue influence proceeding from the resumed candidate or his agents and supporters, and thereafter votes were cast by personation in their names in favour of the returned candidate.6. Inspection of the counterfoils of the ballots could not be allowed to establish a plea for which there was no adequate foundation either in the pleading or in the evidence of the petitioner. Such an inspection will not yield evidence of any specific fact in issue, excepting perhaps that of discrediting the testimony of these eight witnesses examined by the opposite party. Manifestly this petitioner under the cover of the court s order wants to fish out evidencea course which is not permissible.7. For the reasons aforesaid, we are of the opinion that the learned trial Judge was in error in allowing inspection of the counterfoils of theseOf course, after recording its findings if the High Court feels the need for aon legally tenable grounds nothing said here stands in its way. | 1 | 808 | 369 | ### Instruction:
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Sarkaria, J.1. The appellant was elected as a member of the Bihar Legislative Assembly from 69 - Belsand Assembly Constituency, securing 30,501 votes as against 18,371 polled by his nearest rival Sri Ramanand Singh. The poll was held on March 5, 1972. A re-poll of polling stations situate in village Aura was held on March 10, 1972.2. Harish Chandra Mahto, respondent herein, an elector of the Constituency, filed an election petition in the Patna High Court calling in question the election of the returned candidate inter alia on the ground of undue influence exercised at several polling stations including those located at Sanbarsa, Narwana, Fatehpur and Manguraha. It was alleged that the returned candidate, his agents and supporters with the consent and connivance of the returned candidate, drove away the voters, seized the polling stations and procured bogus votes in favour of the returned candidate. In Sch. IV, appended to the election petition, the names of the voters who were allegedly restrained by the returned candidate or his agents or supporters at different polling booths on the date of the poll were mentioned.3. The High Court framed the issues and recorded the entire evidence adduced by the parties, The petitioner examined 54 witnesses, including two who were simply tendered. The returned candidate examined 135 witnesses, in rebuttal, apart from himself appearing in the witness stand as R. W. 136. Almost at the close of the final arguments, the election petitioner on January 17, 1974, moved an application before the High Court praying inter alia for permission to inspect the counterfoils of the ballot papers of eight voters who as R. Ws. 10, 11, 12, 14, 37, 115, 118 and 136 had stated that on the polling day they were absent from the village. It was asserted that the inspection of the counterfoils would show that votes had been polled in their names. The returned candidate opposed the application. By an order dated February 5, l974, the learned trial Judge allowed inspection of the counterfoils pertaining to R. Ws. 10, 11, 12, 14, 37, 115, 118 and 136, who were to cast their votes in the polling booths located at village Narwara. Aggrieved by that order the returned candidate has filed this appeal after obtaining special leave under Art. 136 of the Constitution.4. This Court has held in a series of decisions that inspection of ballot papers or their counterfoils is not to be allowed as a matter of course as such an order touches upon the secrecy of the ballot. Such inspection can be allowed only if a good ground for the same is made out by the petitioner. He must adequately state all the material facts in his election petition on which he relies for such a claim. Furthermore, the Court must be satisfied that for the purpose of deciding the case and doing complete and effectual justice between the parties it is imperatively necessary to order the inspection.5. These tests, in our opinion, were not satisfied in the instant case. There was no allegation, even in an embryonic form, in the election petition or in the Schedule appended thereto that undue influence or coercion was exercised upon these eight persons or that bogus votes were cast in their names. Nor was any evidence adduced by the petitioner that these eight persons had been spared away from the, polling station under threat, duress or undue influence proceeding from the resumed candidate or his agents and supporters, and thereafter votes were cast by personation in their names in favour of the returned candidate.6. Inspection of the counterfoils of the ballots could not be allowed to establish a plea for which there was no adequate foundation either in the pleading or in the evidence of the petitioner. Such an inspection will not yield evidence of any specific fact in issue, excepting perhaps that of discrediting the testimony of these eight witnesses examined by the opposite party. Manifestly this petitioner under the cover of the court s order wants to fish out evidence - a course which is not permissible.7. For the reasons aforesaid, we are of the opinion that the learned trial Judge was in error in allowing inspection of the counterfoils of these ballot-papers. Of course, after recording its findings if the High Court feels the need for a re-count on legally tenable grounds nothing said here stands in its way.
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4. This Court has held in a series of decisions that inspection of ballot papers or their counterfoils is not to be allowed as a matter of course as such an order touches upon the secrecy of the ballot. Such inspection can be allowed only if a good ground for the same is made out by the petitioner. He must adequately state all the material facts in his election petition on which he relies for such a claim. Furthermore, the Court must be satisfied that for the purpose of deciding the case and doing complete and effectual justice between the parties it is imperatively necessary to order the inspection.These tests, in our opinion, were not satisfied in the instant case. There was no allegation, even in an embryonic form, in the election petition or in the Schedule appended thereto that undue influence or coercion was exercised upon these eight persons or that bogus votes were cast in their names. Nor was any evidence adduced by the petitioner that these eight persons had been spared away from the, polling station under threat, duress or undue influence proceeding from the resumed candidate or his agents and supporters, and thereafter votes were cast by personation in their names in favour of the returned candidate.6. Inspection of the counterfoils of the ballots could not be allowed to establish a plea for which there was no adequate foundation either in the pleading or in the evidence of the petitioner. Such an inspection will not yield evidence of any specific fact in issue, excepting perhaps that of discrediting the testimony of these eight witnesses examined by the opposite party. Manifestly this petitioner under the cover of the court s order wants to fish out evidencea course which is not permissible.7. For the reasons aforesaid, we are of the opinion that the learned trial Judge was in error in allowing inspection of the counterfoils of theseOf course, after recording its findings if the High Court feels the need for aon legally tenable grounds nothing said here stands in its way.
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Bharti Cellular Ltd Vs. Union Of India | total figure of IMSI in the Home Location Register. The Tribunal found that the representation made on the subject by the petitioner-appellant on 1st April, 1999 was rejected by the respondent on 23rd April, 1999 and the appellant offered a Migration Package on 22nd July, 1999 which, inter alia, contained a clause that no dispute relating to the Licence Agreement for the period upto 31st July, 1999 shall be raised at any future date. The appellant gave its unconditional acceptance to the entire Migration Package on 27th July, 1999. Having done so, the appellant was not entitled to raise any issue that related to the pre-migration period.6. There is, in our opinion, no legal infirmity in the view taken by the Tribunal. Once the petitioner-appellant had specifically and unconditionally agreed to accept the Migration Package and given up all disputes relating to Licence Agreement for the period upto 31st July, 1999, it was not open to it to turn around and agitate any such dispute after availing of the Migration Package. A party who has unconditionally accepted the package cannot after such acceptance reject the conditions subject to which the benefits were extended to him under the package. It cannot reject what is inconvenient and onerous while accepting what is beneficial to its interests. The package having been offered subject to the conditions that all disputes relating to the Licence Agreement for the period ending 31st July, 1999 shall stand abandoned by the operators there was no room going back on that representation. 7. Relying upon the decision of this Court in City Montessori School v. State of Uttar Pradesh and Ors., II (2009) SLT 345=I (2009) CLT 353 (SC)=2009 (14) SCC 253 ; New Bihar Biri Leaves Co. v. State of Bihar, 1981 (1) SCC 537 and R.N. Goswain v. Yashpal Dhir, AIR 1993 SC 352 ; this Court has in Civil Appeal No. 7236 of 2003, Shyam Telelink now Sistema Shyam Teleservices Ltd. v. Union of India, held that no one can approbate and reprobate and anyone who has accepted with full knowledge or notice of facts, benefits under a transaction which he might have rejected or contested, cannot question the transaction or take up an inconsistent position qua the same. We have said: “The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English Common Law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument.” 8. In the light of the above, the view taken by the Tribunal is legally unexceptionable.9. That brings us to the second issue formulated by the Tribunal for determination. The Tribunal has answered this issue in favour of the appellant holding that while respondent was entitled to recover licence fee together with interest from the earlier unpaid amounts upto and for the month of July 1999, it was not entitled to recover both advance quarterly licence fee for July-September 1999 and revenue-sharing fees for August 1999 and September 1999 in terms of the Migration Package. This part of the order of the Tribunal has not been assailed before us by the appellant obviously because the view taken by the Tribunal has gone in its favour and the matter remitted back for re-working the dues along with interest by the end of July 1999, keeping in view the observations made by the Tribunal in para 23 of its order. It is noteworthy that the Government has also not assailed the said part of the order. 10. The third issue which had been taken up by the Tribunal for consideration related to the Unit Call Rate and the effect of any revision in such rates. Condition 19.1(f) which is relevant in this context reads: “19.1(f). The rate of Rs. five lakh per hundred subscribers or part thereof is based on the Unit Call Rate of Rs. 1.10. Fourth year onwards, as defined in Clause 19.1(d), the rate of Rs. five lakh will be revised based on the unit call rate. The revision will be limited to 75% of the overall increase in the unit rate during the period preceding such revisions.” 11. Relying on the above provisions Tribunal held that even though there is no specific exclusion of downward revision in the clause extracted above, the limiting of the revision is confined to increase only. The expression ‘revision will be limited to 75% of the overall increase in the unit rate’ appearing in Clause 19.1(f) (supra) is indicative of the fact that revision was envisaged only in the case of increase in Unit Call Rate and not in the case of fluctuation resulting in a decrease in the said rate. That apart, the Tribunal has rightly held that the petitioner-appellant had not led any evidence before it and that the question regarding Unit Call Rate was raised by it at any stage either before or after the licence was issued for the year 1994 and that the issue relating to the Licence Agreement could not be agitated being a pre-migration package.12. That leaves us with issue No. 4 formulated by the Tribunal relating to the levy of interest on the licence fee from 1st January, 2000 till actual date of payment. The Tribunal has taken the view, and in our opinion rightly so, that the respondents were entitled to recover not only the outstanding licence dues but also interest due on the same for the period of default. The Tribunal has rightly held that to the extent condition stipulated a deadline i.e. 31st January, 2000 it was open to the respondent to charge simple interest on the overdue amount for keeping the licence valid instead of terminating the same on the ground of default. | 0[ds]5. Insofar as issue No. (i) above is concerned, the Tribunal took the view that the respondents had clarified to the appellant and other cellular operators that the basis for calculating the number of subscribers for determining the licence fee shall be the total figure of IMSI in the Home Location Register. The Tribunal found that the representation made on the subject by theon 1st April, 1999 was rejected by the respondent on 23rd April, 1999 and the appellant offered a Migration Package on 22nd July, 1999 which, inter alia, contained a clause that no dispute relating to the Licence Agreement for the period upto 31st July, 1999 shall be raised at any future date. The appellant gave its unconditional acceptance to the entire Migration Package on 27th July, 1999. Having done so, the appellant was not entitled to raise any issue that related to theperiod.6. There is, in our opinion, no legal infirmity in the view taken by the Tribunal. Once thehad specifically and unconditionally agreed to accept the Migration Package and given up all disputes relating to Licence Agreement for the period upto 31st July, 1999, it was not open to it to turn around and agitate any such dispute after availing of the Migration Package. A party who has unconditionally accepted the package cannot after such acceptance reject the conditions subject to which the benefits were extended to him under the package. It cannot reject what is inconvenient and onerous while accepting what is beneficial to its interests. The package having been offered subject to the conditions that all disputes relating to the Licence Agreement for the period ending 31st July, 1999 shall stand abandoned by the operators there was no room going back on that representation.In the light of the above, the view taken by the Tribunal is legally unexceptionable.9. That brings us to the second issue formulated by the Tribunal for determination. The Tribunal has answered this issue in favour of the appellant holding that while respondent was entitled to recover licence fee together with interest from the earlier unpaid amounts upto and for the month of July 1999, it was not entitled to recover both advance quarterly licence fee foring fees for August 1999 and September 1999 in terms of the Migration Package. This part of the order of the Tribunal has not been assailed before us by the appellant obviously because the view taken by the Tribunal has gone in its favour and the matter remitted back forThe rate of Rs. five lakh per hundred subscribers or part thereof is based on the Unit Call Rate of Rs. 1.10. Fourth year onwards, as defined in Clause 19.1(d), the rate of Rs. five lakh will be revised based on the unit call rate. The revision will be limited to 75% of the overall increase in the unit rate during the period preceding such revisions.Relying on the above provisions Tribunal held that even though there is no specific exclusion of downward revision in the clause extracted above, the limiting of the revision is confined to increase only. The expression ‘revision will be limited to 75% of the overall increase in the unitappearing in Clause 19.1(f) (supra) is indicative of the fact that revision was envisaged only in the case of increase in Unit Call Rate and not in the case of fluctuation resulting in a decrease in the said rate. That apart, the Tribunal has rightly held that thehad not led any evidence before it and that the question regarding Unit Call Rate was raised by it at any stage either before or after the licence was issued for the year 1994 and that the issue relating to the Licence Agreement could not be agitated being apackage.12. That leaves us with issue No. 4 formulated by the Tribunal relating to the levy of interest on the licence fee from 1st January, 2000 till actual date of payment. The Tribunal has taken the view, and in our opinion rightly so, that the respondents were entitled to recover not only the outstanding licence dues but also interest due on the same for the period of default. The Tribunal has rightly held that to the extent condition stipulated a deadline i.e. 31st January, 2000 it was open to the respondent to charge simple interest on the overdue amount for keeping the licence valid instead of terminating the same on the ground of default. | 0 | 1,965 | 804 | ### 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:
total figure of IMSI in the Home Location Register. The Tribunal found that the representation made on the subject by the petitioner-appellant on 1st April, 1999 was rejected by the respondent on 23rd April, 1999 and the appellant offered a Migration Package on 22nd July, 1999 which, inter alia, contained a clause that no dispute relating to the Licence Agreement for the period upto 31st July, 1999 shall be raised at any future date. The appellant gave its unconditional acceptance to the entire Migration Package on 27th July, 1999. Having done so, the appellant was not entitled to raise any issue that related to the pre-migration period.6. There is, in our opinion, no legal infirmity in the view taken by the Tribunal. Once the petitioner-appellant had specifically and unconditionally agreed to accept the Migration Package and given up all disputes relating to Licence Agreement for the period upto 31st July, 1999, it was not open to it to turn around and agitate any such dispute after availing of the Migration Package. A party who has unconditionally accepted the package cannot after such acceptance reject the conditions subject to which the benefits were extended to him under the package. It cannot reject what is inconvenient and onerous while accepting what is beneficial to its interests. The package having been offered subject to the conditions that all disputes relating to the Licence Agreement for the period ending 31st July, 1999 shall stand abandoned by the operators there was no room going back on that representation. 7. Relying upon the decision of this Court in City Montessori School v. State of Uttar Pradesh and Ors., II (2009) SLT 345=I (2009) CLT 353 (SC)=2009 (14) SCC 253 ; New Bihar Biri Leaves Co. v. State of Bihar, 1981 (1) SCC 537 and R.N. Goswain v. Yashpal Dhir, AIR 1993 SC 352 ; this Court has in Civil Appeal No. 7236 of 2003, Shyam Telelink now Sistema Shyam Teleservices Ltd. v. Union of India, held that no one can approbate and reprobate and anyone who has accepted with full knowledge or notice of facts, benefits under a transaction which he might have rejected or contested, cannot question the transaction or take up an inconsistent position qua the same. We have said: “The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English Common Law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument.” 8. In the light of the above, the view taken by the Tribunal is legally unexceptionable.9. That brings us to the second issue formulated by the Tribunal for determination. The Tribunal has answered this issue in favour of the appellant holding that while respondent was entitled to recover licence fee together with interest from the earlier unpaid amounts upto and for the month of July 1999, it was not entitled to recover both advance quarterly licence fee for July-September 1999 and revenue-sharing fees for August 1999 and September 1999 in terms of the Migration Package. This part of the order of the Tribunal has not been assailed before us by the appellant obviously because the view taken by the Tribunal has gone in its favour and the matter remitted back for re-working the dues along with interest by the end of July 1999, keeping in view the observations made by the Tribunal in para 23 of its order. It is noteworthy that the Government has also not assailed the said part of the order. 10. The third issue which had been taken up by the Tribunal for consideration related to the Unit Call Rate and the effect of any revision in such rates. Condition 19.1(f) which is relevant in this context reads: “19.1(f). The rate of Rs. five lakh per hundred subscribers or part thereof is based on the Unit Call Rate of Rs. 1.10. Fourth year onwards, as defined in Clause 19.1(d), the rate of Rs. five lakh will be revised based on the unit call rate. The revision will be limited to 75% of the overall increase in the unit rate during the period preceding such revisions.” 11. Relying on the above provisions Tribunal held that even though there is no specific exclusion of downward revision in the clause extracted above, the limiting of the revision is confined to increase only. The expression ‘revision will be limited to 75% of the overall increase in the unit rate’ appearing in Clause 19.1(f) (supra) is indicative of the fact that revision was envisaged only in the case of increase in Unit Call Rate and not in the case of fluctuation resulting in a decrease in the said rate. That apart, the Tribunal has rightly held that the petitioner-appellant had not led any evidence before it and that the question regarding Unit Call Rate was raised by it at any stage either before or after the licence was issued for the year 1994 and that the issue relating to the Licence Agreement could not be agitated being a pre-migration package.12. That leaves us with issue No. 4 formulated by the Tribunal relating to the levy of interest on the licence fee from 1st January, 2000 till actual date of payment. The Tribunal has taken the view, and in our opinion rightly so, that the respondents were entitled to recover not only the outstanding licence dues but also interest due on the same for the period of default. The Tribunal has rightly held that to the extent condition stipulated a deadline i.e. 31st January, 2000 it was open to the respondent to charge simple interest on the overdue amount for keeping the licence valid instead of terminating the same on the ground of default.
### Response:
0
### Explanation:
5. Insofar as issue No. (i) above is concerned, the Tribunal took the view that the respondents had clarified to the appellant and other cellular operators that the basis for calculating the number of subscribers for determining the licence fee shall be the total figure of IMSI in the Home Location Register. The Tribunal found that the representation made on the subject by theon 1st April, 1999 was rejected by the respondent on 23rd April, 1999 and the appellant offered a Migration Package on 22nd July, 1999 which, inter alia, contained a clause that no dispute relating to the Licence Agreement for the period upto 31st July, 1999 shall be raised at any future date. The appellant gave its unconditional acceptance to the entire Migration Package on 27th July, 1999. Having done so, the appellant was not entitled to raise any issue that related to theperiod.6. There is, in our opinion, no legal infirmity in the view taken by the Tribunal. Once thehad specifically and unconditionally agreed to accept the Migration Package and given up all disputes relating to Licence Agreement for the period upto 31st July, 1999, it was not open to it to turn around and agitate any such dispute after availing of the Migration Package. A party who has unconditionally accepted the package cannot after such acceptance reject the conditions subject to which the benefits were extended to him under the package. It cannot reject what is inconvenient and onerous while accepting what is beneficial to its interests. The package having been offered subject to the conditions that all disputes relating to the Licence Agreement for the period ending 31st July, 1999 shall stand abandoned by the operators there was no room going back on that representation.In the light of the above, the view taken by the Tribunal is legally unexceptionable.9. That brings us to the second issue formulated by the Tribunal for determination. The Tribunal has answered this issue in favour of the appellant holding that while respondent was entitled to recover licence fee together with interest from the earlier unpaid amounts upto and for the month of July 1999, it was not entitled to recover both advance quarterly licence fee foring fees for August 1999 and September 1999 in terms of the Migration Package. This part of the order of the Tribunal has not been assailed before us by the appellant obviously because the view taken by the Tribunal has gone in its favour and the matter remitted back forThe rate of Rs. five lakh per hundred subscribers or part thereof is based on the Unit Call Rate of Rs. 1.10. Fourth year onwards, as defined in Clause 19.1(d), the rate of Rs. five lakh will be revised based on the unit call rate. The revision will be limited to 75% of the overall increase in the unit rate during the period preceding such revisions.Relying on the above provisions Tribunal held that even though there is no specific exclusion of downward revision in the clause extracted above, the limiting of the revision is confined to increase only. The expression ‘revision will be limited to 75% of the overall increase in the unitappearing in Clause 19.1(f) (supra) is indicative of the fact that revision was envisaged only in the case of increase in Unit Call Rate and not in the case of fluctuation resulting in a decrease in the said rate. That apart, the Tribunal has rightly held that thehad not led any evidence before it and that the question regarding Unit Call Rate was raised by it at any stage either before or after the licence was issued for the year 1994 and that the issue relating to the Licence Agreement could not be agitated being apackage.12. That leaves us with issue No. 4 formulated by the Tribunal relating to the levy of interest on the licence fee from 1st January, 2000 till actual date of payment. The Tribunal has taken the view, and in our opinion rightly so, that the respondents were entitled to recover not only the outstanding licence dues but also interest due on the same for the period of default. The Tribunal has rightly held that to the extent condition stipulated a deadline i.e. 31st January, 2000 it was open to the respondent to charge simple interest on the overdue amount for keeping the licence valid instead of terminating the same on the ground of default.
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Dhani Devi Vs. Sant Bihari & Ors | 58. Likewise in the case of the death of an applicant during the pendency of an appeal under Section 64, or a revision petition under Section 64A the appellate or the revisional authority has power if it thinks fit to substitute the successor in place of the deceased applicant in the records of the proceedings. 6. We may now refer to the relevant decisions on the subject under consideration. In Ratanlal v. State Transport Authority, AIR 1957 All 471 one Munna Lal died during the pendency of appeals filed by him against the orders rejecting his application for the grant of a stage carriage permit and directing the issue of the permit to another applicant. The appellate authority refused to order substitution of his son Ratanlal in his place. Rattanlal filed a writ petition challenging the order. The Allahabad High Court dismissed the petition. It held that the right to apply for the grant of a permit was not hereitable or transferable and Ratanlals heir had no right to continue the appeals. In Meenakshi v. Mysore S. T. A. Tribunal, AIR 1963 Mys 278 several persons including Gopalasetty applied for the grant of a stage carriage permit. The Regional Transport Authority decided to grant the permit to another applicant. Unsuccessful applicants other than Gopalasetty filed appeals against the order. During the pendency of the appeals Gopalasetty died. The appellate tribunal allowed the appeals and remanded the matter to the Regional Transport Authority for fresh disposal. After the matter went back to the Regional Transport Authority, the widow of Gopalasetty was substituted in his place and was allowed to prosecute the application presented by him. On a consideration of all the applications the Regional Transport Authority granted the permit to the widow of Gopalasetty. The order was set aside by the appellate tribunal on the ground inter alia that the widow could not continue the application filed by Gopalasetty. On a writ petition filed by the widow, the Mysore High Court set aside the order of the appellate tribunal and restored the order of the Regional Transport Authority. It held that the application presented by Gopalasetty could be prosecuted by his widow. The decision of the Mysore High Court was reversed by this Court on another point in Hanuman Transport Co. v. Meenakshi, Civil Appeal No. 794 of 1963, D/- 20-2-1963 (SC). But this Court then declined to express any opinion on the question whether the successor can be permitted to prosecute the application filed by his predecessor. In Maruthavanam v. Balasubramaniam, AIR 1963 Mad 292 two partners of a firm filed an appeal from an order rejecting their application for the grant of a permit. During the pendency of the appeal one of the partners died. The Madras High Court held that the appeal could be continued by the surviving partner. In Kuppuswami v. Ramchandran, AIR 1964 Mad 356 one Lakshmi applied for a variation of the stage carriage permits held by her. Her application was rejected by the Regional Transport Authority. She filed a revision petition against the order under Section 64A. During the pendency of the revision petition she died. The State Transport Appellate Tribunal permitted the guardian of her minor legal representatives to continue the revision petition, set aside the order of the Regional Transport Authority and granted the variation sought for. Two of the rival operators filed writ petitions challenging the order. The Madras High Court held that the legal representative of Lakshmi could continue the revision petition. For the reasons already given, we are not inclined to agree with the Allahabad decision. In Director of Public Works v. Ho Po Sang, 1961 AC 901 the Privy Council held that the right of a crown lessee of premises in Hongkong to get his petition and cross-petition for the grant of a rebuilding certificate pursuant to the proposal of the Director of Public Works to be considered by the Governor-in-Council under Section 3D of the Landlord and Tenant Ordinance (Hongkong), 1947 was not a right or a privilege either accrued or acquired within the meaning of Section 10 of the Interpretation Ordinance of Hong Kong, corresponding to Sec. 38 of the Interpretation Act, 1889 and that on the repeal of the Ordinance, the proceedings could not be continued and the Governor could not pass any order under Section 3B. This decision is not relevant, as we are not concerned in the present case with the effect of repeal of the Motor Vehicles Act on a pending application for the grant of a permit. 7. Let us now turn to the facts of the present case. The appellants husband Ram Bichar Singh made an application for the grant of a state carriage permit. Upon his death during the pendency of the application, the Regional Transport Authority allowed the appellant to prosecute the application filed by him. She made no formal application for substitution; but no objection was raised on that ground nor was any adjournment asked for by the rival claimants in order to enable them to file objections. Ram Bichar Singh is said to have left behind other heirs also, but no objection was taken on the ground of their non-joinder. The Regional Transport authority directed the grant of the permit to the appellant. On the materials on the record, the Regional Transport Authority found that the appellant was an experienced and displaced operator. That finding was not challenged in appeal. The only point taking in the appeal was that the application of Ram Bichar Singh had abated and the Regional Transport Authority had no power to allow her to continue the application. The Appellate Authority accepted the contention and set aside the order directing the grant of the permit to the appellant. The Transport Minister rightly set aside the order of the Appellate Authority has power to permit her to prosecute the application filed by her deceased husband. In our opinion, the High Court was in error in setting aside the order of the Transport Minister. | 1[ds]4. Under Section 57 an application for a stage carriage permit or a public carriers permit must be made within the appointed time and published in the prescribed manner. The representations relating thereto must also be made before the appointed time. In the event of the death of an applicant after the expiry of the time appointed for making the applications, the persons succeeding to the possession of the vehicle cannot, having regard to the lapse of time, make another application in his own right. The successor cannot obtain the permit unless he is allowed to prosecute the application filed by his predecessor and we see no reason why he cannot be permitted to do so. Where the successor is allowed to prosecute the application, the Regional Transport Authority may have to take into consideration many matters personal to the successor, such as his experience, the facilities at his disposal for operating the services and his adverse record, if any. The matters personal to the deceased applicant can no longer be taken into account. The rival applicants should, if necessary be given suitable opportunity to file objections against the grant of the permit to the successor. Section 57 does not deal with the situation arising on the death of an applicant nor has it prescribed any time for the making of an application for substitution of the successor or for the filing of objections against the grant of the permit to him5. Under Section 57 (1) an application for a contract carriers permit or a private carriers permit may be made at any time, and therefore the Regional Transport Authority can more readily allow the successor to prosecute the application filed by his predecessor. The Regional Transport Authority may similarly deal with the situation arising on the death of an applicant for the variation of the permit under Section 57 (8) or the renewal of the permit under Section 58. Likewise in the case of the death of an applicant during the pendency of an appeal under Section 64, or a revision petition under Section 64A the appellate or the revisional authority has power if it thinks fit to substitute the successor in place of the deceased applicant in the records of the proceedingsThe appellants husband Ram Bichar Singh made an application for the grant of a state carriage permit. Upon his death during the pendency of the application, the Regional Transport Authority allowed the appellant to prosecute the application filed by him. She made no formal application for substitution; but no objection was raised on that ground nor was any adjournment asked for by the rival claimants in order to enable them to file objections. Ram Bichar Singh is said to have left behind other heirs also, but no objection was taken on the ground of their non-joinder. The Regional Transport authority directed the grant of the permit to the appellant. On the materials on the record, the Regional Transport Authority found that the appellant was an experienced and displaced operator. That finding was not challenged in appeal. The only point taking in the appeal was that the application of Ram Bichar Singh had abated and the Regional Transport Authority had no power to allow her to continue the application. The Appellate Authority accepted the contention and set aside the order directing the grant of the permit to the appellant. The Transport Minister rightly set aside the order of the Appellate Authority has power to permit her to prosecute the application filed by her deceased husband. In our opinion, the High Court was in error in setting aside the order of the Transport Minister. | 1 | 2,384 | 653 | ### 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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58. Likewise in the case of the death of an applicant during the pendency of an appeal under Section 64, or a revision petition under Section 64A the appellate or the revisional authority has power if it thinks fit to substitute the successor in place of the deceased applicant in the records of the proceedings. 6. We may now refer to the relevant decisions on the subject under consideration. In Ratanlal v. State Transport Authority, AIR 1957 All 471 one Munna Lal died during the pendency of appeals filed by him against the orders rejecting his application for the grant of a stage carriage permit and directing the issue of the permit to another applicant. The appellate authority refused to order substitution of his son Ratanlal in his place. Rattanlal filed a writ petition challenging the order. The Allahabad High Court dismissed the petition. It held that the right to apply for the grant of a permit was not hereitable or transferable and Ratanlals heir had no right to continue the appeals. In Meenakshi v. Mysore S. T. A. Tribunal, AIR 1963 Mys 278 several persons including Gopalasetty applied for the grant of a stage carriage permit. The Regional Transport Authority decided to grant the permit to another applicant. Unsuccessful applicants other than Gopalasetty filed appeals against the order. During the pendency of the appeals Gopalasetty died. The appellate tribunal allowed the appeals and remanded the matter to the Regional Transport Authority for fresh disposal. After the matter went back to the Regional Transport Authority, the widow of Gopalasetty was substituted in his place and was allowed to prosecute the application presented by him. On a consideration of all the applications the Regional Transport Authority granted the permit to the widow of Gopalasetty. The order was set aside by the appellate tribunal on the ground inter alia that the widow could not continue the application filed by Gopalasetty. On a writ petition filed by the widow, the Mysore High Court set aside the order of the appellate tribunal and restored the order of the Regional Transport Authority. It held that the application presented by Gopalasetty could be prosecuted by his widow. The decision of the Mysore High Court was reversed by this Court on another point in Hanuman Transport Co. v. Meenakshi, Civil Appeal No. 794 of 1963, D/- 20-2-1963 (SC). But this Court then declined to express any opinion on the question whether the successor can be permitted to prosecute the application filed by his predecessor. In Maruthavanam v. Balasubramaniam, AIR 1963 Mad 292 two partners of a firm filed an appeal from an order rejecting their application for the grant of a permit. During the pendency of the appeal one of the partners died. The Madras High Court held that the appeal could be continued by the surviving partner. In Kuppuswami v. Ramchandran, AIR 1964 Mad 356 one Lakshmi applied for a variation of the stage carriage permits held by her. Her application was rejected by the Regional Transport Authority. She filed a revision petition against the order under Section 64A. During the pendency of the revision petition she died. The State Transport Appellate Tribunal permitted the guardian of her minor legal representatives to continue the revision petition, set aside the order of the Regional Transport Authority and granted the variation sought for. Two of the rival operators filed writ petitions challenging the order. The Madras High Court held that the legal representative of Lakshmi could continue the revision petition. For the reasons already given, we are not inclined to agree with the Allahabad decision. In Director of Public Works v. Ho Po Sang, 1961 AC 901 the Privy Council held that the right of a crown lessee of premises in Hongkong to get his petition and cross-petition for the grant of a rebuilding certificate pursuant to the proposal of the Director of Public Works to be considered by the Governor-in-Council under Section 3D of the Landlord and Tenant Ordinance (Hongkong), 1947 was not a right or a privilege either accrued or acquired within the meaning of Section 10 of the Interpretation Ordinance of Hong Kong, corresponding to Sec. 38 of the Interpretation Act, 1889 and that on the repeal of the Ordinance, the proceedings could not be continued and the Governor could not pass any order under Section 3B. This decision is not relevant, as we are not concerned in the present case with the effect of repeal of the Motor Vehicles Act on a pending application for the grant of a permit. 7. Let us now turn to the facts of the present case. The appellants husband Ram Bichar Singh made an application for the grant of a state carriage permit. Upon his death during the pendency of the application, the Regional Transport Authority allowed the appellant to prosecute the application filed by him. She made no formal application for substitution; but no objection was raised on that ground nor was any adjournment asked for by the rival claimants in order to enable them to file objections. Ram Bichar Singh is said to have left behind other heirs also, but no objection was taken on the ground of their non-joinder. The Regional Transport authority directed the grant of the permit to the appellant. On the materials on the record, the Regional Transport Authority found that the appellant was an experienced and displaced operator. That finding was not challenged in appeal. The only point taking in the appeal was that the application of Ram Bichar Singh had abated and the Regional Transport Authority had no power to allow her to continue the application. The Appellate Authority accepted the contention and set aside the order directing the grant of the permit to the appellant. The Transport Minister rightly set aside the order of the Appellate Authority has power to permit her to prosecute the application filed by her deceased husband. In our opinion, the High Court was in error in setting aside the order of the Transport Minister.
### Response:
1
### Explanation:
4. Under Section 57 an application for a stage carriage permit or a public carriers permit must be made within the appointed time and published in the prescribed manner. The representations relating thereto must also be made before the appointed time. In the event of the death of an applicant after the expiry of the time appointed for making the applications, the persons succeeding to the possession of the vehicle cannot, having regard to the lapse of time, make another application in his own right. The successor cannot obtain the permit unless he is allowed to prosecute the application filed by his predecessor and we see no reason why he cannot be permitted to do so. Where the successor is allowed to prosecute the application, the Regional Transport Authority may have to take into consideration many matters personal to the successor, such as his experience, the facilities at his disposal for operating the services and his adverse record, if any. The matters personal to the deceased applicant can no longer be taken into account. The rival applicants should, if necessary be given suitable opportunity to file objections against the grant of the permit to the successor. Section 57 does not deal with the situation arising on the death of an applicant nor has it prescribed any time for the making of an application for substitution of the successor or for the filing of objections against the grant of the permit to him5. Under Section 57 (1) an application for a contract carriers permit or a private carriers permit may be made at any time, and therefore the Regional Transport Authority can more readily allow the successor to prosecute the application filed by his predecessor. The Regional Transport Authority may similarly deal with the situation arising on the death of an applicant for the variation of the permit under Section 57 (8) or the renewal of the permit under Section 58. Likewise in the case of the death of an applicant during the pendency of an appeal under Section 64, or a revision petition under Section 64A the appellate or the revisional authority has power if it thinks fit to substitute the successor in place of the deceased applicant in the records of the proceedingsThe appellants husband Ram Bichar Singh made an application for the grant of a state carriage permit. Upon his death during the pendency of the application, the Regional Transport Authority allowed the appellant to prosecute the application filed by him. She made no formal application for substitution; but no objection was raised on that ground nor was any adjournment asked for by the rival claimants in order to enable them to file objections. Ram Bichar Singh is said to have left behind other heirs also, but no objection was taken on the ground of their non-joinder. The Regional Transport authority directed the grant of the permit to the appellant. On the materials on the record, the Regional Transport Authority found that the appellant was an experienced and displaced operator. That finding was not challenged in appeal. The only point taking in the appeal was that the application of Ram Bichar Singh had abated and the Regional Transport Authority had no power to allow her to continue the application. The Appellate Authority accepted the contention and set aside the order directing the grant of the permit to the appellant. The Transport Minister rightly set aside the order of the Appellate Authority has power to permit her to prosecute the application filed by her deceased husband. In our opinion, the High Court was in error in setting aside the order of the Transport Minister.
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Mervin Albert Veiyra Vs. C.P. Fernandes & Another | the Authority has found as a fact that there was a continuous lack of raw materials which did not enable the employer to give work to the employee. Mr. Buch has been compelled to admit that a lay-off for a short period may be beneficial to the workmen, but if it extends beyond the short period then it would lead to serious consequences. Once it is conceded that the lay-off is beneficial even for a short period, it takes away completely the ground from under the feet of Mr. Buch when he argues that lay-off is a right conferred upon the employer. How short the lay-off must be in any particular case and at what point of the time the lay-off ceases to be proper and legal and becomes improper and illegal must depend upon the facts of each case and cannot possibly be postulated as a proposition of law. As we said before, it is always open to the employee at any particular point of time to contend that the lay-off is no longer legal, no longer satisfies the conditions of the definition, and that they are entitled to be retrenched and paid retrenchment compensation. But to argue, as Mr. Buch has argued, that the lay-off in this case was initially illegal because in the notice of lay-off no definite period was fixed is a contention which is clearly untenable looking both to the language of the definition and the scheme of Chapter VA. As we said before, we agree with Mr. Buch that a layoff in its very nature must be temporary. It is not suggested in this case that the lay-off was not temporary. We also agree with him that in order that the lay-off should be legal it must satisfy the conditions laid down in the definition. It is not suggested in this case that those conditions were not satisfied. But where we disagree with Mr. Buch is that the law does not require that the lay-off must be for a definite period, nor does the law require that it must be for a specific period. In this connection reliance was placed on the provision with regard to compensation and it was pointed out that while the compensation provided was 50 per cent. of the total of the basic wages and dearness allowance, there was proviso (a) to this provision which laid down that the compensation payable to a workman during any period of twelve months shall not be for more than forty-five days except in the case specified in clause (b), and clause (b) deals with broken periods, and where a workman has been paid compensation for forty-five days and during the same period of twelve months he is again laid-off for further continuous periods of more than one week at a time, he shall, unless there is any agreement to the contrary between him and the employer, be paid for all the days during such subsequent periods of layoff compensation at the rate specified in this section. It is therefore pointed out that if there is an unbroken, period the workman would only be entitled to forty-five days in the whole year, whereas if there were broken periods he would be entitled to much more. In this case there was a lay-off for a whole year and the workmen are only entitled to compensation under proviso (a) to S. 25C. It is therefore urged by Mr. Buch and with considerable force that it could not have been the intention of the Legislature that when the workmen were earning no wages for a whole year they should only receive compensation for forty-five days, but if they had been working from time to time and if there were broken periods of lay-off they would have earned much more, and from this it is suggested that the Legislature intended that a continuous period of lay-off should not be very long, certainly not one year as in this case. It may be that the Legislature might have taken the view that normally a lay-off would not be for a very long period and it may be pointed out that it is possible for the interest of the workmen to be protected by standing orders which may provide that a lay-off should not be for a longer period than specified in the relevant standing order, and we understand that when standing orders are framed they do provide for periods of lay-off. But from this possible lacuna in S. 25C we cannot possibly infer that the Legislature has provided a time limit for a lay-off and has provided that when the time limit expires the lay-off becomes illegal. If that was the intention of the Legislature it should have been provided either in the definition of lay-off or by some specific provision in the Act itself. In the absence of any such provision we cannot accede to Mr. Buchs contention that a lay-off which exceeds any particular period is necessarily illegal and contrary to law.8. A further point raised by Mr. Buch was that on a true construction of S. 25C he would be entitled to much more compensation for lay-off than has been awarded to him. We have already held that compensation for lay-off is not wages and from our decision it must follow that the Authority for Payment of Wages would have no jurisdiction to grant any claim made by a worker with regard to compensation for lay-off. It is therefore unnecessary for us to consider the contention put forward by Mr. Buch. It will be open to him to put forward that contention before the appropriate authority which would have jurisdiction to grant him compensation for lay-off. As this is an application against the order of the Payment of Wages Authority, we are only concerned with his order and as he has no jurisdiction to award compensation for lay-off it is unnecessary for us to pronounce on what the rights of the petitioner are under S. 25C. | 0[ds]It is clear that under the common law an employer could terminate the services of an employee at any time even though his business or his industry may only be temporarily stopped and there was every prospect of resumption of that business or industry. There was no obligation upon the employer temporarily to suspend the services of his employee and reinstate him when his business or industry was resumed. He was perfectly free to dismiss him and to employ new men when the business or industry was resumed. Nor did the common law impose any obligation upon the employer to give any compensation to an employee it his services were retrenched. The expression used by Mr. Buch on which he has based the whole of his argument that the employer does not possess the right toan employee under the provisions of the Industrial Disputes Act is not a very appropriate expression. Far froman employee, being a right, in our opinion it is really an obligation. The common law right of the employer to which we have just referred is curtailed and limited if he is bound tohis employee under certain circumstances. Instead of being free to dispense with his services, if there is a temporary break down and the conditions laid down in the Act prevail, he cannot put an end to the contract between himself and his employee, but all that he can do is to suspend the contract for the time being and the employee is entitled to resume his services and to receive full wages as soon as that temporary stoppage has come to an end. From the point of view of the employee the importance of not being dismissed but merely beingcan be understood and appreciated. He may or may not find new work if his services are dispensed with. Even when he finds new work the number of years that he has already put in service with his old employer would be thrown away and whatever benefits might have accrued to him by continuity of service would also be lost to him.Therefore, in our opinion, and we shall presently point out the scheme of the Act, what the Legislature did by Chapter VA was to impose a certain obligation upon the employer and confer a certain right upon the employee. The obligation was that if the conditions referred to in the definition ofexist, the employer was bound to continue the services of the employee, but was not bound to pay him full wages but compensation provided in the Act. The employer was also entitled to retrench the services of his employee, but that also he could only do provided he paid retrenchment compensation. Therefore, two options were open to the employer. Under given circumstances he could eitherhis employee, pay himcompensation, and when the crisis passed and the emergency ceased to exist he had to reinstate him or rather he had to give him his full wages as an employee, the suspension of the contract having come to an end, or he could dismiss him, but unless the dismissal was for misconduct or for certain other reasons mentioned in the Act, he had to give him retrenchment compensation. Therefore, Chapter VA constituted a serious encroachment upon the employers rights under the common law, and it is entirely erroneous to look upon the provisions of Chapter VA as conferring rights upon the employer which he did not possess under the common law. Therefore, when it is sought to be argued that unless the employer has the right toan employee under the contract between him and his employee, he cannot claim that right by reason of the provisions of the Act, there is a complete misapprehension both as to the true effect of Chapter VA and the object that the Legislature had in enacting this Chapter. The whole of industrial law in India today constitutes an inroad upon the common law rights of the employer. We no longer live in the age when the rights of workers were regulated by the contract between the employee and the employer. Whatever the provisions of the contract might be, the industrial law interferes with those provisions in the interest of labour, and it is futile to suggest today that the Legislature enacted Chapter VA in order to confer rights upon the employers and not upon the employees. It is with this background that we must approach the provisions of the Industrial Disputes Act to see whether the contentions put forward by Mr. Buch areour opinion, implicit in this first part of S. 25C is the obligation of the employer tohis employee and not to dismiss him or discharge him as he would be entitled to under the common law or under the contract between him and his employee. It is true that the Legislature has not used clear and explicit words conferring power upon the employer tohis employee, but looking to the whole scheme of Chapter VA, that power or that obligation is implicit in the provisions of thatis difficult to understand the contention that the employee in this case had any right under his contract with the employer which has been derogated from by permitting the employer toan employee and to give himcompensation. As we have already pointed out, the contract in question does not deal withat all. The employee as a matter of fact under the contract had no right whatsoever for the period during which the business or industry was suspended, he was liable to be dismissed summarily, and therefore if anything the obligation cast upon the employer under Chapter VA, far from derogating any right of the employee, conferred a new right upon him during the time when the circumstances mentioned in the definition ofwould be very reluctant to construe any provision of the Industrial Disputes Act in a manner which would prejudice the rights of workmen. We realise the hardship caused to workmen as in this case where for a whole year they were paid no wages at all and ultimately they were given a small pittance of their wages in the form ofcompensation. Therefore, it is desirable to make clear what rights the workmen have under the provisions of this Act. It is always open to the workmen to challenge before the appropriate authority that the conditions necessary before it could be said that there can be ain law do not exist, and they could equally insist that instead of beingthey should be retrenched and retrenchment compensation paid to them. Of course, it is not necessary to emphasise the fact that apart from this it is always open to the employee to terminate his services with the employer and to seek fresh employment. But naturally an employee would like to continue in the service of his old employer and it is precisely because of this that the Legislature has provided for a sort of interregnum during which the contract of service is merely suspended but has not come to an end. It is not open to the employer under the cloak of the provision with regard toto keep his employees in a state of suspended animation, not make up his mind whether the industry or business would ultimately continue or there would be a permanent stoppage, and thereby deprive his employees of full wages. The very essence of ais that it is a temporary stoppage. It is equally the essence ofthat within a reasonable period of time the employer expects that the business or industry would continue and his employees who have beenwill be restored to their full rights as employees. We agree with Mr. Buch that it is not open to the employer, although he knows that the conditions are not such that it is possible to resume the work or the business, just to postpone coming to a conclusion and just to put off the evil day by continuing with theand not retrench the workmen who have beenand whose services would no longer be required. Therefore, it is clear that the Act does not compel the workmen to continue in the state of affairs where the contract between them and their employer is merely suspended and where they get no wages. But what Mr. Buch relies upon and which contention was not accepted by the Authority and which we are also compelled to reject, is that ais only permissible so long as it is for a fixed period of time and does not extend beyond what he says a month orff at any particular time is proper and legal must depend upon the circumstances of each case. The law does not lay down any definite period, as indeed it could not, and therefore there is no principle of law involved in the contention that in this particular case thewas illegal or improper. The petitioner never contended before the Authority that thewas not bona fide or that it was used as a cloak to enable the employer not to pay full wages, and the Authority has found as a fact that there was a continuous lack of raw materials which did not enable the employer to give work to the employee. Mr. Buch has been compelled to admit that afor a short period may be beneficial to the workmen, but if it extends beyond the short period then it would lead to serious consequences. Once it is conceded that theis beneficial even for a short period, it takes away completely the ground from under the feet of Mr. Buch when he argues thatis a right conferred upon the employer. How short themust be in any particular case and at what point of the time theceases to be proper and legal and becomes improper and illegal must depend upon the facts of each case and cannot possibly be postulated as a proposition of law. As we said before, it is always open to the employee at any particular point of time to contend that theis no longer legal, no longer satisfies the conditions of the definition, and that they are entitled to be retrenched and paid retrenchment compensation. But to argue, as Mr. Buch has argued, that thein this case was initially illegal because in the notice ofno definite period was fixed is a contention which is clearly untenable looking both to the language of the definition and the scheme of Chapter VA. As we said before, we agree with Mr. Buch that a layoff in its very nature must be temporary. It is not suggested in this case that thewas not temporary. We also agree with him that in order that theshould be legal it must satisfy the conditions laid down in the definition. It is not suggested in this case that those conditions were not satisfied. But where we disagree with Mr. Buch is that the law does not require that themust be for a definite period, nor does the law require that it must be for a specificmay be that the Legislature might have taken the view that normally awould not be for a very long period and it may be pointed out that it is possible for the interest of the workmen to be protected by standing orders which may provide that ashould not be for a longer period than specified in the relevant standing order, and we understand that when standing orders are framed they do provide for periods ofBut from this possible lacuna in S. 25C we cannot possibly infer that the Legislature has provided a time limit for aand has provided that when the time limit expires thebecomes illegal. If that was the intention of the Legislature it should have been provided either in the definition ofor by some specific provision in the Act itself. In the absence of any such provision we cannot accede to Mr. Buchs contention that awhich exceeds any particular period is necessarily illegal and contrary tohave already held that compensation foris not wages and from our decision it must follow that the Authority for Payment of Wages would have no jurisdiction to grant any claim made by a worker with regard to compensation forIt is therefore unnecessary for us to consider the contention put forward by Mr. Buch. It will be open to him to put forward that contention before the appropriate authority which would have jurisdiction to grant him compensation forAs this is an application against the order of the Payment of Wages Authority, we are only concerned with his order and as he has no jurisdiction to award compensation forit is unnecessary for us to pronounce on what the rights of the petitioner are under S. 25C. | 0 | 4,170 | 2,220 | ### 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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the Authority has found as a fact that there was a continuous lack of raw materials which did not enable the employer to give work to the employee. Mr. Buch has been compelled to admit that a lay-off for a short period may be beneficial to the workmen, but if it extends beyond the short period then it would lead to serious consequences. Once it is conceded that the lay-off is beneficial even for a short period, it takes away completely the ground from under the feet of Mr. Buch when he argues that lay-off is a right conferred upon the employer. How short the lay-off must be in any particular case and at what point of the time the lay-off ceases to be proper and legal and becomes improper and illegal must depend upon the facts of each case and cannot possibly be postulated as a proposition of law. As we said before, it is always open to the employee at any particular point of time to contend that the lay-off is no longer legal, no longer satisfies the conditions of the definition, and that they are entitled to be retrenched and paid retrenchment compensation. But to argue, as Mr. Buch has argued, that the lay-off in this case was initially illegal because in the notice of lay-off no definite period was fixed is a contention which is clearly untenable looking both to the language of the definition and the scheme of Chapter VA. As we said before, we agree with Mr. Buch that a layoff in its very nature must be temporary. It is not suggested in this case that the lay-off was not temporary. We also agree with him that in order that the lay-off should be legal it must satisfy the conditions laid down in the definition. It is not suggested in this case that those conditions were not satisfied. But where we disagree with Mr. Buch is that the law does not require that the lay-off must be for a definite period, nor does the law require that it must be for a specific period. In this connection reliance was placed on the provision with regard to compensation and it was pointed out that while the compensation provided was 50 per cent. of the total of the basic wages and dearness allowance, there was proviso (a) to this provision which laid down that the compensation payable to a workman during any period of twelve months shall not be for more than forty-five days except in the case specified in clause (b), and clause (b) deals with broken periods, and where a workman has been paid compensation for forty-five days and during the same period of twelve months he is again laid-off for further continuous periods of more than one week at a time, he shall, unless there is any agreement to the contrary between him and the employer, be paid for all the days during such subsequent periods of layoff compensation at the rate specified in this section. It is therefore pointed out that if there is an unbroken, period the workman would only be entitled to forty-five days in the whole year, whereas if there were broken periods he would be entitled to much more. In this case there was a lay-off for a whole year and the workmen are only entitled to compensation under proviso (a) to S. 25C. It is therefore urged by Mr. Buch and with considerable force that it could not have been the intention of the Legislature that when the workmen were earning no wages for a whole year they should only receive compensation for forty-five days, but if they had been working from time to time and if there were broken periods of lay-off they would have earned much more, and from this it is suggested that the Legislature intended that a continuous period of lay-off should not be very long, certainly not one year as in this case. It may be that the Legislature might have taken the view that normally a lay-off would not be for a very long period and it may be pointed out that it is possible for the interest of the workmen to be protected by standing orders which may provide that a lay-off should not be for a longer period than specified in the relevant standing order, and we understand that when standing orders are framed they do provide for periods of lay-off. But from this possible lacuna in S. 25C we cannot possibly infer that the Legislature has provided a time limit for a lay-off and has provided that when the time limit expires the lay-off becomes illegal. If that was the intention of the Legislature it should have been provided either in the definition of lay-off or by some specific provision in the Act itself. In the absence of any such provision we cannot accede to Mr. Buchs contention that a lay-off which exceeds any particular period is necessarily illegal and contrary to law.8. A further point raised by Mr. Buch was that on a true construction of S. 25C he would be entitled to much more compensation for lay-off than has been awarded to him. We have already held that compensation for lay-off is not wages and from our decision it must follow that the Authority for Payment of Wages would have no jurisdiction to grant any claim made by a worker with regard to compensation for lay-off. It is therefore unnecessary for us to consider the contention put forward by Mr. Buch. It will be open to him to put forward that contention before the appropriate authority which would have jurisdiction to grant him compensation for lay-off. As this is an application against the order of the Payment of Wages Authority, we are only concerned with his order and as he has no jurisdiction to award compensation for lay-off it is unnecessary for us to pronounce on what the rights of the petitioner are under S. 25C.
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to terminate his services with the employer and to seek fresh employment. But naturally an employee would like to continue in the service of his old employer and it is precisely because of this that the Legislature has provided for a sort of interregnum during which the contract of service is merely suspended but has not come to an end. It is not open to the employer under the cloak of the provision with regard toto keep his employees in a state of suspended animation, not make up his mind whether the industry or business would ultimately continue or there would be a permanent stoppage, and thereby deprive his employees of full wages. The very essence of ais that it is a temporary stoppage. It is equally the essence ofthat within a reasonable period of time the employer expects that the business or industry would continue and his employees who have beenwill be restored to their full rights as employees. We agree with Mr. Buch that it is not open to the employer, although he knows that the conditions are not such that it is possible to resume the work or the business, just to postpone coming to a conclusion and just to put off the evil day by continuing with theand not retrench the workmen who have beenand whose services would no longer be required. Therefore, it is clear that the Act does not compel the workmen to continue in the state of affairs where the contract between them and their employer is merely suspended and where they get no wages. But what Mr. Buch relies upon and which contention was not accepted by the Authority and which we are also compelled to reject, is that ais only permissible so long as it is for a fixed period of time and does not extend beyond what he says a month orff at any particular time is proper and legal must depend upon the circumstances of each case. The law does not lay down any definite period, as indeed it could not, and therefore there is no principle of law involved in the contention that in this particular case thewas illegal or improper. The petitioner never contended before the Authority that thewas not bona fide or that it was used as a cloak to enable the employer not to pay full wages, and the Authority has found as a fact that there was a continuous lack of raw materials which did not enable the employer to give work to the employee. Mr. Buch has been compelled to admit that afor a short period may be beneficial to the workmen, but if it extends beyond the short period then it would lead to serious consequences. Once it is conceded that theis beneficial even for a short period, it takes away completely the ground from under the feet of Mr. Buch when he argues thatis a right conferred upon the employer. How short themust be in any particular case and at what point of the time theceases to be proper and legal and becomes improper and illegal must depend upon the facts of each case and cannot possibly be postulated as a proposition of law. As we said before, it is always open to the employee at any particular point of time to contend that theis no longer legal, no longer satisfies the conditions of the definition, and that they are entitled to be retrenched and paid retrenchment compensation. But to argue, as Mr. Buch has argued, that thein this case was initially illegal because in the notice ofno definite period was fixed is a contention which is clearly untenable looking both to the language of the definition and the scheme of Chapter VA. As we said before, we agree with Mr. Buch that a layoff in its very nature must be temporary. It is not suggested in this case that thewas not temporary. We also agree with him that in order that theshould be legal it must satisfy the conditions laid down in the definition. It is not suggested in this case that those conditions were not satisfied. But where we disagree with Mr. Buch is that the law does not require that themust be for a definite period, nor does the law require that it must be for a specificmay be that the Legislature might have taken the view that normally awould not be for a very long period and it may be pointed out that it is possible for the interest of the workmen to be protected by standing orders which may provide that ashould not be for a longer period than specified in the relevant standing order, and we understand that when standing orders are framed they do provide for periods ofBut from this possible lacuna in S. 25C we cannot possibly infer that the Legislature has provided a time limit for aand has provided that when the time limit expires thebecomes illegal. If that was the intention of the Legislature it should have been provided either in the definition ofor by some specific provision in the Act itself. In the absence of any such provision we cannot accede to Mr. Buchs contention that awhich exceeds any particular period is necessarily illegal and contrary tohave already held that compensation foris not wages and from our decision it must follow that the Authority for Payment of Wages would have no jurisdiction to grant any claim made by a worker with regard to compensation forIt is therefore unnecessary for us to consider the contention put forward by Mr. Buch. It will be open to him to put forward that contention before the appropriate authority which would have jurisdiction to grant him compensation forAs this is an application against the order of the Payment of Wages Authority, we are only concerned with his order and as he has no jurisdiction to award compensation forit is unnecessary for us to pronounce on what the rights of the petitioner are under S. 25C.
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GEETABEN ANILKUMAR PATEL AND ORS Vs. PRAVINCHANDRA JINABHAI PATEL AND ORS | honestly, wholeheartedly and faithfully act in accordance with and implement the transaction of the property, the IMOU which is now considered as MOU and the accounting chart in respect of the companies and the firms. ........ The aforesaid Arbitration Award I agreed to and approved of by and our descendant guardian and heirs. We undertake to implement the same with free-will and pleasure. After their signature in the award which is in Gujarati language for having received the copy of the award, Pravinchandra Patel and Anilkumar Patel have stated as under:- ....For ourselves and on behalf of our family members. It is pertinent to note that the award also referred to IMOU dated29.06.1996 in and by which the members of the respective families have authorized Pravinchandra Patel and Anilkumar Patel to act on behalf of their family members. 22. The award dated 03.11.1996 also refers to the award dated07.07.1996. The award dated 03.11.1996 was also signed by Pravinchandra Patel and Anilkumar Patel and both of them have undertaken that the arbitration award is duly agreed and approved by them and their family members and further undertaken to act in accordance with the award and to give effect to the same. The said endorsement in the award dated 03.11.1996 reads as under:- The aforesaid arbitration award is duly agreed to and approved of by me and my family members, descendants heirs and other. My family members and I absolutely assure to act in accordance with the award and to give effect to same. As discussed earlier, Anilkumar Patel was unsuccessful in his attempt to challenge the award dated 03.11.1996 which has attained finality in terms of the findings in W.P.No.7614 of 2006. Anilkumar Patels undertaking in the award dated 03.11.1996 that he and his family members agreed and approved the award shows that Anilkumar Patel was acting for himself and on behalf of his family members. 23. Award dated 07.07.1996 was received by Anilkumar Patel for himself and on behalf of his family members. In interim MOU dated 29.06.1996, Anilkumar Patel signed for self and as a power of attorney holder for his wife and his all sons and daughter-in-law. Challenging the award dated 07.07.1996, Anilkumar Patel and his family members have filed a single petition under Section 34 of the Act. Likewise they have also filed a single petition for amending the arbitration petition No.202 of2005. Anilkumar Patel, being the head of his family, was a person directly connected with and involved in the proceeding and was also in control of the proceeding. Being head of the family, Anilkumar Patel would have been the best person to understand and appreciate the arbitral award and take a decision as to whether an application under Section 34 of the Act was required to be filed or not. In such facts and circumstances, in our considered view, service of arbitral award on Anilkumar Patel amounts to service on the other appellant Nos.1(a) to 1(d) and respondent No.10 and they cannot plead non-compliance of Section 31(5) of the Act. 24. The High Court has enumerated various circumstances which indicate that Anilkumar Patel was well aware of the award dated07.07.1996 and also relied upon the award in internal communication between the parties and various legal proceedings. Inter Office Memo dated 22.07.1996, sent by Anilkumar Patel to Pravinchandra Patel, seeking for delivery of file of Gat No.266/2 of Bambhori, Taluka Brandol. Anilkumar Patel has stated that in Gat No.266/2 of Bambhori, agricultural land has come to his share and since some dispute has been raised by the party by whom the sale-deed is to be executed, Anilkumar Patel requested to handover the file maintained in connection with the agricultural land mentioned in Gat No.266/2. The said Inter Office Memo clearly shows that even on 22.07.1996, Anilkumar Patel had acted upon the award dated 07.07.1996. 25. Central Bank of India has filed recovery proceeding in O.A.No.298-A/2001 against Pravinchandra Patel, M/s. Patel Narayandas Bhagwandas Fertilizers Private Limited and others. In the said proceeding before DRT, Anilkumar Patel has referred to the arbitration award passed in July, 1996 and that he has no interest in M/s. Patel Narayandas Bhagwandas Fertilizers Private Limited. Based on such stand taken by Anilkumar Patel in O.A.No.298-A/2001, DRT observed that Anilkumar Patel had resigned from the Directorship of the said company and exonerated him from the liability to the bank and dismissed O.A.No.298-A/2001 against Anilkumar Patel and Atulkumar Maganlal Patel. The High Court referred to the said DRT proceedings and various other circumstances in which Anilkumar Patel had taken advantage of arbitration award and the High Court held as under:- ....The respondents, obviously, wherever it was possible for them, at several places, took advantage of the arbitration award and now since obligation on their part is to be complied in favour of the petitioner, have started challenging the award, after nine years..... Various circumstances brought on record clearly show that Anilkumar Patel was authorized by other appellant Nos. 1(a) to 1(d) and respondent No.10 to receive copy of the award and act on their behalf and we find no reason to take a different view from that of the High Court. 26. As rightly observed by the High Court, Anilkumar Patel has gone to the extent of even disputing his signature in the award dated07.07.1996 by drafting choreographed petition. Having accepted the award through Anilkumar Patel, being the head of the family, appellant Nos. 1(a) to 1(d) and respondent No.10 cannot turn round and contend that they had not received the copy of the award. The High Court rightly held that ....Receiving the copy by Anilkumar on behalf of himself and respondent nos. 2 to 6, under an acknowledgment, is in terms of compliance of Section 31(5) of the Act and Section 34(3) thereof..... and that the application filed under Section 34 of the Act by Anilkumar Patel and appellant Nos. 1(a) to 1(d) and respondent No.10 was barred by limitation. We do not find any good ground to interfere with the impugned judgment. | 0[ds]23. Award dated 07.07.1996 was received by Anilkumar Patel for himself and on behalf of his family members. In interim MOU dated 29.06.1996, Anilkumar Patel signed for self and as a power of attorney holder for his wife and his all sons and. Challenging the award dated 07.07.1996, Anilkumar Patel and his family members have filed a single petition under Section 34 of the Act. Likewise they have also filed a single petition for amending the arbitration petition No.202 of2005. Anilkumar Patel, being the head of his family, was a person directly connected with and involved in the proceeding and was also in control of the proceeding. Being head of the family, Anilkumar Patel would have been the best person to understand and appreciate the arbitral award and take a decision as to whether an application under Section 34 of the Act was required to be filed or not. In such facts and circumstances, in our considered view, service of arbitral award on Anilkumar Patel amounts to service on the other appellant Nos.1(a) to 1(d) and respondent No.10 and they cannot pleade of Section 31(5) of the Act26. As rightly observed by the High Court, Anilkumar Patel has gone to the extent of even disputing his signature in the award dated07.07.1996 by drafting choreographed petition. Having accepted the award through Anilkumar Patel, being the head of the family, appellant Nos. 1(a) to 1(d) and respondent No.10 cannot turn round and contend that they had not received the copy of the award. The High Court rightly held that ....Receiving the copy by Anilkumar on behalf of himself and respondent nos. 2 to 6, under an acknowledgment, is in terms ofe of Section 31(5) of the Actand Section 34(3) thereof..... and that the application filed under Section 34 of the Act by Anilkumar Patel and appellant Nos. 1(a) to 1(d) and respondent No.10 was barred by limitation. We do not find any good ground to interfere with the impugned judgment24. The High Court has enumerated various circumstances which indicate that Anilkumar Patel was well aware of the award dated07.07.1996 and also relied upon the award in internal communication between the parties and various legal proceedings. Inter Office Memo dated 22.07.1996, sent by Anilkumar Patel to Pravinchandra Patel, seeking for delivery of file of Gat No.266/2 of Bambhori, Taluka Brandol. Anilkumar Patel has stated that in Gat No.266/2 of Bambhori, agricultural land has come to his share and since some dispute has been raised by the party by whom thed is to be executed, Anilkumar Patel requested to handover the file maintained in connection with the agricultural land mentioned in Gat No.266/2. The said Inter Office Memo clearly shows that even on 22.07.1996, Anilkumar Patel had acted upon the award dated 07.07.1996Various circumstances brought on record clearly show that Anilkumar Patel was authorized by other appellant Nos. 1(a) to 1(d) and respondent No.10 to receive copy of the award and act on their behalf and we find no reason to take a different view from that of the High Court. | 0 | 4,467 | 586 | ### 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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honestly, wholeheartedly and faithfully act in accordance with and implement the transaction of the property, the IMOU which is now considered as MOU and the accounting chart in respect of the companies and the firms. ........ The aforesaid Arbitration Award I agreed to and approved of by and our descendant guardian and heirs. We undertake to implement the same with free-will and pleasure. After their signature in the award which is in Gujarati language for having received the copy of the award, Pravinchandra Patel and Anilkumar Patel have stated as under:- ....For ourselves and on behalf of our family members. It is pertinent to note that the award also referred to IMOU dated29.06.1996 in and by which the members of the respective families have authorized Pravinchandra Patel and Anilkumar Patel to act on behalf of their family members. 22. The award dated 03.11.1996 also refers to the award dated07.07.1996. The award dated 03.11.1996 was also signed by Pravinchandra Patel and Anilkumar Patel and both of them have undertaken that the arbitration award is duly agreed and approved by them and their family members and further undertaken to act in accordance with the award and to give effect to the same. The said endorsement in the award dated 03.11.1996 reads as under:- The aforesaid arbitration award is duly agreed to and approved of by me and my family members, descendants heirs and other. My family members and I absolutely assure to act in accordance with the award and to give effect to same. As discussed earlier, Anilkumar Patel was unsuccessful in his attempt to challenge the award dated 03.11.1996 which has attained finality in terms of the findings in W.P.No.7614 of 2006. Anilkumar Patels undertaking in the award dated 03.11.1996 that he and his family members agreed and approved the award shows that Anilkumar Patel was acting for himself and on behalf of his family members. 23. Award dated 07.07.1996 was received by Anilkumar Patel for himself and on behalf of his family members. In interim MOU dated 29.06.1996, Anilkumar Patel signed for self and as a power of attorney holder for his wife and his all sons and daughter-in-law. Challenging the award dated 07.07.1996, Anilkumar Patel and his family members have filed a single petition under Section 34 of the Act. Likewise they have also filed a single petition for amending the arbitration petition No.202 of2005. Anilkumar Patel, being the head of his family, was a person directly connected with and involved in the proceeding and was also in control of the proceeding. Being head of the family, Anilkumar Patel would have been the best person to understand and appreciate the arbitral award and take a decision as to whether an application under Section 34 of the Act was required to be filed or not. In such facts and circumstances, in our considered view, service of arbitral award on Anilkumar Patel amounts to service on the other appellant Nos.1(a) to 1(d) and respondent No.10 and they cannot plead non-compliance of Section 31(5) of the Act. 24. The High Court has enumerated various circumstances which indicate that Anilkumar Patel was well aware of the award dated07.07.1996 and also relied upon the award in internal communication between the parties and various legal proceedings. Inter Office Memo dated 22.07.1996, sent by Anilkumar Patel to Pravinchandra Patel, seeking for delivery of file of Gat No.266/2 of Bambhori, Taluka Brandol. Anilkumar Patel has stated that in Gat No.266/2 of Bambhori, agricultural land has come to his share and since some dispute has been raised by the party by whom the sale-deed is to be executed, Anilkumar Patel requested to handover the file maintained in connection with the agricultural land mentioned in Gat No.266/2. The said Inter Office Memo clearly shows that even on 22.07.1996, Anilkumar Patel had acted upon the award dated 07.07.1996. 25. Central Bank of India has filed recovery proceeding in O.A.No.298-A/2001 against Pravinchandra Patel, M/s. Patel Narayandas Bhagwandas Fertilizers Private Limited and others. In the said proceeding before DRT, Anilkumar Patel has referred to the arbitration award passed in July, 1996 and that he has no interest in M/s. Patel Narayandas Bhagwandas Fertilizers Private Limited. Based on such stand taken by Anilkumar Patel in O.A.No.298-A/2001, DRT observed that Anilkumar Patel had resigned from the Directorship of the said company and exonerated him from the liability to the bank and dismissed O.A.No.298-A/2001 against Anilkumar Patel and Atulkumar Maganlal Patel. The High Court referred to the said DRT proceedings and various other circumstances in which Anilkumar Patel had taken advantage of arbitration award and the High Court held as under:- ....The respondents, obviously, wherever it was possible for them, at several places, took advantage of the arbitration award and now since obligation on their part is to be complied in favour of the petitioner, have started challenging the award, after nine years..... Various circumstances brought on record clearly show that Anilkumar Patel was authorized by other appellant Nos. 1(a) to 1(d) and respondent No.10 to receive copy of the award and act on their behalf and we find no reason to take a different view from that of the High Court. 26. As rightly observed by the High Court, Anilkumar Patel has gone to the extent of even disputing his signature in the award dated07.07.1996 by drafting choreographed petition. Having accepted the award through Anilkumar Patel, being the head of the family, appellant Nos. 1(a) to 1(d) and respondent No.10 cannot turn round and contend that they had not received the copy of the award. The High Court rightly held that ....Receiving the copy by Anilkumar on behalf of himself and respondent nos. 2 to 6, under an acknowledgment, is in terms of compliance of Section 31(5) of the Act and Section 34(3) thereof..... and that the application filed under Section 34 of the Act by Anilkumar Patel and appellant Nos. 1(a) to 1(d) and respondent No.10 was barred by limitation. We do not find any good ground to interfere with the impugned judgment.
### Response:
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### Explanation:
23. Award dated 07.07.1996 was received by Anilkumar Patel for himself and on behalf of his family members. In interim MOU dated 29.06.1996, Anilkumar Patel signed for self and as a power of attorney holder for his wife and his all sons and. Challenging the award dated 07.07.1996, Anilkumar Patel and his family members have filed a single petition under Section 34 of the Act. Likewise they have also filed a single petition for amending the arbitration petition No.202 of2005. Anilkumar Patel, being the head of his family, was a person directly connected with and involved in the proceeding and was also in control of the proceeding. Being head of the family, Anilkumar Patel would have been the best person to understand and appreciate the arbitral award and take a decision as to whether an application under Section 34 of the Act was required to be filed or not. In such facts and circumstances, in our considered view, service of arbitral award on Anilkumar Patel amounts to service on the other appellant Nos.1(a) to 1(d) and respondent No.10 and they cannot pleade of Section 31(5) of the Act26. As rightly observed by the High Court, Anilkumar Patel has gone to the extent of even disputing his signature in the award dated07.07.1996 by drafting choreographed petition. Having accepted the award through Anilkumar Patel, being the head of the family, appellant Nos. 1(a) to 1(d) and respondent No.10 cannot turn round and contend that they had not received the copy of the award. The High Court rightly held that ....Receiving the copy by Anilkumar on behalf of himself and respondent nos. 2 to 6, under an acknowledgment, is in terms ofe of Section 31(5) of the Actand Section 34(3) thereof..... and that the application filed under Section 34 of the Act by Anilkumar Patel and appellant Nos. 1(a) to 1(d) and respondent No.10 was barred by limitation. We do not find any good ground to interfere with the impugned judgment24. The High Court has enumerated various circumstances which indicate that Anilkumar Patel was well aware of the award dated07.07.1996 and also relied upon the award in internal communication between the parties and various legal proceedings. Inter Office Memo dated 22.07.1996, sent by Anilkumar Patel to Pravinchandra Patel, seeking for delivery of file of Gat No.266/2 of Bambhori, Taluka Brandol. Anilkumar Patel has stated that in Gat No.266/2 of Bambhori, agricultural land has come to his share and since some dispute has been raised by the party by whom thed is to be executed, Anilkumar Patel requested to handover the file maintained in connection with the agricultural land mentioned in Gat No.266/2. The said Inter Office Memo clearly shows that even on 22.07.1996, Anilkumar Patel had acted upon the award dated 07.07.1996Various circumstances brought on record clearly show that Anilkumar Patel was authorized by other appellant Nos. 1(a) to 1(d) and respondent No.10 to receive copy of the award and act on their behalf and we find no reason to take a different view from that of the High Court.
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Employees of Tannery and Footwear Corporation of India Ltd & Another Vs. Union of India & Others | the respondent - corporation and the Cotton Corporation of India, in 1970, the said parity was disturbed in 1973 when the pay scales of the employees in the Cotton Corporation of India were revised in accordance with the Third Pay Commission formula. The parity was sought to be restored in 1976 when the pay scales of the employees in the respondent - corporation were also revised in accordance with the Third Pay Commission formula, though with effect from a later date. It was again disturbed when the pay scales of the employees in the Cotton Corporation of India were revised in 1977 and 1982 there was no similar revision in the pay scales of the employees in the respondent - corporation.14. It has been urged on behalf of the respondents that respondent - corporation and the Cotton Corporation of India are distinct legal entities carrying on different trading activities and the petitioners cannot claim parity in pay scales with the employees in the Cotton Corporation of India and that the principle of equal pay for equal work cannot be invoked. It is no doubt true that the respondent - corporation and the Cotton Corporation of India, are distinct legal entities. But at the same time it cannot be ignored that both are instrumentalities of the Government of India who is bound by the directives contained in Part IV of the Constitution.15. In this context it may be pointed out that in pursuance of the directions given by this Court in its order dated March 14, 1986 in Writ Petition No. 12655 of 1986 and connected matters, the Government of India had appointed a High Power Committee under the Chairmanship of Shri Justice R. B. Misra, to go into the various aspects relating to pay scales and other incidental matters such as additional D. A., interim relief and other allowances to the employees working in the Public Sector governed by the Central Government pay scales and D. A. The said Committee after considering the pay scales in the various Public Enterprises having Central Government pattern of D A., has recommended uniform pay scales for the employees including subordinate staff falling in the categories of (i) Attendant, Messenger, Peon, Watchman, Safaiwala, Mali, etc.; (ii) Daftry, Jamadar, Head Watchman etc.; (iii) Record Keeper, Record Sorter, Junior Clerks etc.; and (iv) U.D.C., Assistants etc. The Committee was of the view that rationalisation of the present heterogeneous structure of pay scales was required in the interests of uniform remuneration for similar work in the different enterprises." (Page 65 para 8.16). In Jute Corporation of India Officers Association v. Jute Corporation of India Limited, (JT 1990 (2) SC 255 ), this Court has given directions for applying the revised pay scales recommended by the said Committee to the various Public Sector Undertakings of the Government of India having the Central Government pattern of D. A. This shows that there would be parity in pay scales of the employees falling in the four categories, with which we are concerned, in the various enterprises of the Government of India which are following the Central Government D. A. pattern. There appears to be no reason why the petitioners should be denied similar parity in the matter of pay scales with the staff falling in the aforesaid four categories employed with the Cotton Corporation of India especially when such employees were having the same pay scales in 1970. We are, therefore, of the view that the pay scales of the employees in the unionised cadre falling in the four categories referred to above in the respondent - corporation should be revised in a way that the same are at par with the pay scales of such employees employed with the Cotton Corporation of India. 16. State of U.P. v. J. P. Chaurasia (AIR 1989 SC 19 ) (supra) on which reliance has been placed by Shri Mahajan deals with the question as to equation of duties and responsibilities for applying the principle of ,equal pay for equal work. Therein this Court has held that the matter of equation of posts for the purpose of equation of pay must be left to the executive and must be determined by expert bodies like Pay Commission and that if there is such a determination by a Commission or Committee the Court should normally accept it. The principle laid down in the said decision was reiterated in the other decisions relied upon by Shri Mahajan. Here we are not concerned with equation of posts because the posts falling in the abovementioned four categories of employees in the respondent corporation as well as the Cotton Corporation of India are of the same level and employees working on these posts were having the same pay scales in 1970. There is nothing on the record to show that after 1970 there has been any change in the duties and functions of the persons holding these posts in the two corporations which may justify fixation of different pay scales for these posts in the two corporations. The pay scales of the petitioners as revised by order dated April 25, 1986, cannot, therefore, be upheld. The respondents Nos. 1 and 3 should so revise the pay scales of the petitioners as to be at par with pay scales enjoyed by the employees falling in the same category in the Cotton Corporation of India on the date from which the said revised pay scales are to be applied. Under order dated April 25, 1986, the revision of the pay scales of the petitioners has been made with effect from August 1, 1983 and is valid up to July 31, 1987. The revision in the pay scales of the petitioners should be made keeping in view the pay scales and allowances enjoyed by the employees falling in the same category in the Cotton Corporation of India on August 1, 1983 and such revision may be made operative up to July 31, 1987, as provided in the order date April 25, 1986. | 1[ds]11. In our view the respondents are right in pointing out that the guidelines dated November 27, 1982, issued by the Bureau of Public Enterprises which have been issued with regard to the revision of pay scales of the officers in Government undertakings and they do not apply to subordinate staff like the petitioners in these writ petitions. The petitioners, therefore, cannot seek any relief on the basis of the said guidelines. As regards the payment of dearness allowance on industrial pattern, we find that the employees in the unionised cadre in the respondentcorporation are being paid dearness allowance on the industrial D. A. pattern ever since the revision of their pay scales under order dated Dec. 28, 1976 with effect from August 1, 1976, and the revised pay scales under order dated April 25, 1986, also envisage payment of dearness allowance on Industrial D. A. pattern. Theonly question which needs to be examined in these writ petitions is whether the revision on the pay scales of the employees falling in the four categories mentioned above in the unionised cadre in the respondentcorporation under order dated April 25, 1986 suffers from any legal infirmity.The petitioners have assailed the said fixation on the ground that they have been denied parity with other employees similarly situate employed with the Cotton Corporation of India and they want their pay scales to be revised on the same pattern.It is thus evident that although in l970 there was parity in the pay scales of the employees falling in the four categories referred to above who were employed with the respondentcorporation and the Cotton Corporation of India, the said parity was disturbed in course of time on account of the fact that in the Cotton Corporation of India there was timely revision in the pay scales in 1973, 1977 and 19821 whereas in the respondent corporation, the revision in the pay scales was after a much longer gap in 1976 and 1983. The revised pay scales granted to the employees of the Cotton Corporation of India with effect from January 1, 1973 were given to the employees of the respondentcorporation with effect from August 1, 1976. The said pay scales were fixed as per the Third Central Pay Commission formula which had come into force with effect from January 1, 1973. This would show that while the employees of the Cotton Corporation of India were given the revised pay scales in accordance with the Third Pay Commission formula with effect from January 1, 1973, when the revised pay scales as recommended by the Third Pay Commission were brought into force, the employees of the respondentcorporation were given the said revised pay scales from a later date, i.e. August 1, 1976. In the Cotton Corporation of India the employees had a revision of their pay scales with effect from October 1, 1977 and a further revision with effect from September 1, 1982 whereas in the respondentcorporation there was no revision in the pay scales after the revision of 1976 till the passing of the order dated April 25, 1986 during the pendency of these writ petitions whereby the pay scales have been revised with effect from August 11 1983. The revised pay scales fixed under order dated April 25, 1986, are, however, much lower than the pay scales of similar employees in the Cotton Corporation of India which were fixed with effect from September 1, 1982. Thus, we find that though there was parity in the pay scales of the employees falling in the categories mentioned above in the respondentcorporation and the Cotton Corporation of India, in 1970, the said parity was disturbed in 1973 when the pay scales of the employees in the Cotton Corporation of India were revised in accordance with the Third Pay Commission formula. The parity was sought to be restored in 1976 when the pay scales of the employees in the respondentcorporation.14. It has been urged on behalf of the respondents that respondentcorporation and the Cotton Corporation of India are distinct legal entities carrying on different trading activities and the petitioners cannot claim parity in pay scales with the employees in the Cotton Corporation of India and that the principle of equal pay for equal work cannot be invoked. It is no doubt true that the respondentcorporation and the Cotton Corporation of India, are distinct legal entities. But at the same time it cannot be ignored that both are instrumentalities of the Government of India who is bound by the directives contained in Part IV of the Constitution.15. In this context it may be pointed out that in pursuance of the directions given by this Court in its order dated March 14, 1986 in Writ Petition No. 12655 of 1986 and connected matters, the Government of India had appointed a High Power Committee under the Chairmanship of Shri Justice R. B. Misra, to go into the various aspects relating to pay scales and other incidental matters such as additional D. A., interim relief and other allowances to the employees working in the Public Sector governed by the Central Government pay scales and D. A. The said Committee after considering the pay scales in the various Public Enterprises having Central Government pattern of D A., has recommended uniform pay scales for the employees including subordinate staff falling in the categories of (i) Attendant, Messenger, Peon, Watchman, Safaiwala, Mali, etc.; (ii) Daftry, Jamadar, Head Watchman etc.; (iii) Record Keeper, Record Sorter, Junior Clerks etc.; and (iv) U.D.C., Assistants etc. The Committee was of the view that rationalisation of the present heterogeneous structure of pay scales was required in the interests of uniform remuneration for similar work in the different enterprises." (Page 65 para 8.16). In Jute Corporation of India Officers Association v. Jute Corporation of India Limited, (JT 1990 (2) SC 255 ), this Court has given directions for applying the revised pay scales recommended by the said Committee to the various Public Sector Undertakings of the Government of India having the Central Government pattern of D. A. This shows that there would be parity in pay scales of the employees falling in the four categories, with which we are concerned, in the various enterprises of the Government of India which are following the Central Government D. A. pattern. There appears to be no reason why the petitioners should be denied similar parity in the matter of pay scales with the staff falling in the aforesaid four categories employed with the Cotton Corporation of India especially when such employees were having the same pay scales in 1970. We are, therefore, of the view that the pay scales of the employees in the unionised cadre falling in the four categories referred to above in the respondentcorporation should be revised in a way that the same are at par with the pay scales of such employees employed with the Cotton Corporation of India. | 1 | 3,600 | 1,256 | ### 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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the respondent - corporation and the Cotton Corporation of India, in 1970, the said parity was disturbed in 1973 when the pay scales of the employees in the Cotton Corporation of India were revised in accordance with the Third Pay Commission formula. The parity was sought to be restored in 1976 when the pay scales of the employees in the respondent - corporation were also revised in accordance with the Third Pay Commission formula, though with effect from a later date. It was again disturbed when the pay scales of the employees in the Cotton Corporation of India were revised in 1977 and 1982 there was no similar revision in the pay scales of the employees in the respondent - corporation.14. It has been urged on behalf of the respondents that respondent - corporation and the Cotton Corporation of India are distinct legal entities carrying on different trading activities and the petitioners cannot claim parity in pay scales with the employees in the Cotton Corporation of India and that the principle of equal pay for equal work cannot be invoked. It is no doubt true that the respondent - corporation and the Cotton Corporation of India, are distinct legal entities. But at the same time it cannot be ignored that both are instrumentalities of the Government of India who is bound by the directives contained in Part IV of the Constitution.15. In this context it may be pointed out that in pursuance of the directions given by this Court in its order dated March 14, 1986 in Writ Petition No. 12655 of 1986 and connected matters, the Government of India had appointed a High Power Committee under the Chairmanship of Shri Justice R. B. Misra, to go into the various aspects relating to pay scales and other incidental matters such as additional D. A., interim relief and other allowances to the employees working in the Public Sector governed by the Central Government pay scales and D. A. The said Committee after considering the pay scales in the various Public Enterprises having Central Government pattern of D A., has recommended uniform pay scales for the employees including subordinate staff falling in the categories of (i) Attendant, Messenger, Peon, Watchman, Safaiwala, Mali, etc.; (ii) Daftry, Jamadar, Head Watchman etc.; (iii) Record Keeper, Record Sorter, Junior Clerks etc.; and (iv) U.D.C., Assistants etc. The Committee was of the view that rationalisation of the present heterogeneous structure of pay scales was required in the interests of uniform remuneration for similar work in the different enterprises." (Page 65 para 8.16). In Jute Corporation of India Officers Association v. Jute Corporation of India Limited, (JT 1990 (2) SC 255 ), this Court has given directions for applying the revised pay scales recommended by the said Committee to the various Public Sector Undertakings of the Government of India having the Central Government pattern of D. A. This shows that there would be parity in pay scales of the employees falling in the four categories, with which we are concerned, in the various enterprises of the Government of India which are following the Central Government D. A. pattern. There appears to be no reason why the petitioners should be denied similar parity in the matter of pay scales with the staff falling in the aforesaid four categories employed with the Cotton Corporation of India especially when such employees were having the same pay scales in 1970. We are, therefore, of the view that the pay scales of the employees in the unionised cadre falling in the four categories referred to above in the respondent - corporation should be revised in a way that the same are at par with the pay scales of such employees employed with the Cotton Corporation of India. 16. State of U.P. v. J. P. Chaurasia (AIR 1989 SC 19 ) (supra) on which reliance has been placed by Shri Mahajan deals with the question as to equation of duties and responsibilities for applying the principle of ,equal pay for equal work. Therein this Court has held that the matter of equation of posts for the purpose of equation of pay must be left to the executive and must be determined by expert bodies like Pay Commission and that if there is such a determination by a Commission or Committee the Court should normally accept it. The principle laid down in the said decision was reiterated in the other decisions relied upon by Shri Mahajan. Here we are not concerned with equation of posts because the posts falling in the abovementioned four categories of employees in the respondent corporation as well as the Cotton Corporation of India are of the same level and employees working on these posts were having the same pay scales in 1970. There is nothing on the record to show that after 1970 there has been any change in the duties and functions of the persons holding these posts in the two corporations which may justify fixation of different pay scales for these posts in the two corporations. The pay scales of the petitioners as revised by order dated April 25, 1986, cannot, therefore, be upheld. The respondents Nos. 1 and 3 should so revise the pay scales of the petitioners as to be at par with pay scales enjoyed by the employees falling in the same category in the Cotton Corporation of India on the date from which the said revised pay scales are to be applied. Under order dated April 25, 1986, the revision of the pay scales of the petitioners has been made with effect from August 1, 1983 and is valid up to July 31, 1987. The revision in the pay scales of the petitioners should be made keeping in view the pay scales and allowances enjoyed by the employees falling in the same category in the Cotton Corporation of India on August 1, 1983 and such revision may be made operative up to July 31, 1987, as provided in the order date April 25, 1986.
### Response:
1
### Explanation:
Theonly question which needs to be examined in these writ petitions is whether the revision on the pay scales of the employees falling in the four categories mentioned above in the unionised cadre in the respondentcorporation under order dated April 25, 1986 suffers from any legal infirmity.The petitioners have assailed the said fixation on the ground that they have been denied parity with other employees similarly situate employed with the Cotton Corporation of India and they want their pay scales to be revised on the same pattern.It is thus evident that although in l970 there was parity in the pay scales of the employees falling in the four categories referred to above who were employed with the respondentcorporation and the Cotton Corporation of India, the said parity was disturbed in course of time on account of the fact that in the Cotton Corporation of India there was timely revision in the pay scales in 1973, 1977 and 19821 whereas in the respondent corporation, the revision in the pay scales was after a much longer gap in 1976 and 1983. The revised pay scales granted to the employees of the Cotton Corporation of India with effect from January 1, 1973 were given to the employees of the respondentcorporation with effect from August 1, 1976. The said pay scales were fixed as per the Third Central Pay Commission formula which had come into force with effect from January 1, 1973. This would show that while the employees of the Cotton Corporation of India were given the revised pay scales in accordance with the Third Pay Commission formula with effect from January 1, 1973, when the revised pay scales as recommended by the Third Pay Commission were brought into force, the employees of the respondentcorporation were given the said revised pay scales from a later date, i.e. August 1, 1976. In the Cotton Corporation of India the employees had a revision of their pay scales with effect from October 1, 1977 and a further revision with effect from September 1, 1982 whereas in the respondentcorporation there was no revision in the pay scales after the revision of 1976 till the passing of the order dated April 25, 1986 during the pendency of these writ petitions whereby the pay scales have been revised with effect from August 11 1983. The revised pay scales fixed under order dated April 25, 1986, are, however, much lower than the pay scales of similar employees in the Cotton Corporation of India which were fixed with effect from September 1, 1982. Thus, we find that though there was parity in the pay scales of the employees falling in the categories mentioned above in the respondentcorporation and the Cotton Corporation of India, in 1970, the said parity was disturbed in 1973 when the pay scales of the employees in the Cotton Corporation of India were revised in accordance with the Third Pay Commission formula. The parity was sought to be restored in 1976 when the pay scales of the employees in the respondentcorporation.14. It has been urged on behalf of the respondents that respondentcorporation and the Cotton Corporation of India are distinct legal entities carrying on different trading activities and the petitioners cannot claim parity in pay scales with the employees in the Cotton Corporation of India and that the principle of equal pay for equal work cannot be invoked. It is no doubt true that the respondentcorporation and the Cotton Corporation of India, are distinct legal entities. But at the same time it cannot be ignored that both are instrumentalities of the Government of India who is bound by the directives contained in Part IV of the Constitution.15. In this context it may be pointed out that in pursuance of the directions given by this Court in its order dated March 14, 1986 in Writ Petition No. 12655 of 1986 and connected matters, the Government of India had appointed a High Power Committee under the Chairmanship of Shri Justice R. B. Misra, to go into the various aspects relating to pay scales and other incidental matters such as additional D. A., interim relief and other allowances to the employees working in the Public Sector governed by the Central Government pay scales and D. A. The said Committee after considering the pay scales in the various Public Enterprises having Central Government pattern of D A., has recommended uniform pay scales for the employees including subordinate staff falling in the categories of (i) Attendant, Messenger, Peon, Watchman, Safaiwala, Mali, etc.; (ii) Daftry, Jamadar, Head Watchman etc.; (iii) Record Keeper, Record Sorter, Junior Clerks etc.; and (iv) U.D.C., Assistants etc. The Committee was of the view that rationalisation of the present heterogeneous structure of pay scales was required in the interests of uniform remuneration for similar work in the different enterprises." (Page 65 para 8.16). In Jute Corporation of India Officers Association v. Jute Corporation of India Limited, (JT 1990 (2) SC 255 ), this Court has given directions for applying the revised pay scales recommended by the said Committee to the various Public Sector Undertakings of the Government of India having the Central Government pattern of D. A. This shows that there would be parity in pay scales of the employees falling in the four categories, with which we are concerned, in the various enterprises of the Government of India which are following the Central Government D. A. pattern. There appears to be no reason why the petitioners should be denied similar parity in the matter of pay scales with the staff falling in the aforesaid four categories employed with the Cotton Corporation of India especially when such employees were having the same pay scales in 1970. We are, therefore, of the view that the pay scales of the employees in the unionised cadre falling in the four categories referred to above in the respondentcorporation should be revised in a way that the same are at par with the pay scales of such employees employed with the Cotton Corporation of India.
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Qudrat Ullah Vs. Municipal Board, Barelly | of the General Clauses Act. What follows? The survival of the right or the continuation of the operation of the Act to the proceedings is all that is ensured, not the expansion or extension of the right. For the normal life of the Act i.e. till September 30, 1972, the dispossession of the tenant is permissible only if the grounds in Section 2 are satisfied by the landlord. This right is circumscribed in content to conditions set out and limited in duration to the period beyond which the Act does not exist. To hold otherwise would be to give more quantum of right to the party than he would have enjoyed had the repeal not been made. Not to affect the previous operation cannot be converted into sanctioning subsequent operation. To read post-mortem operation into a temporary Act because of a premature repeal of it is wrong. To adopt the words Jagannadhadas, J. in Indira Sohanlal v. Custodian of Evacuee Property, Delhi, AIR 1956 SC 77 at p. 84 has observed :"What in effect, learned counsel for the appellant contends for is not the "previous operation of the repealed law" but the future operation of the previous law". On this footing the right, if any, that the defendant claims terminates with the expiration of that temporary statute. 24. The only further question is whether it is permissible for this Court to take note of the extinguishment of the statutory tenancy at this stage and grant relief to the appellant accordingly. The leading case of Lachmeshwar Prassad v. Keshwar Lal, AIR 1941 FC 5 at p. 6 lays down the law on the point. Gwyer, C.J., quoted with approval the following observations of Hughes, C.J.:"We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered". Justice Varadachariar, J. in the same case stated that in this country the Courts have recognised an appeal to be in the nature of a re-hearing and that "in moulding the relief to be granted in a case on appeal, the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against." This appellate obligation is almost jurisdictional. In a sense, the multi-decked mechanism of the legal process, at every tier, is the handmaid, not the mistress of justice. 25. We may mention as an additional reason for our conclusion that the provisions of S.6 of the General Clauses Act in relation to the effect of repeal do not ordinarily apply to a temporary Act. Stating this proposition, Gajendragadkar, J, as he then was, indicated the consequences of repeal of a temporary Act. In State of Orissa v. Bhupendra Kumar, AIR 1962 SC 945 , the learned Judge continued."As observed by Patanjali Sastri, J, as he then was, in S. Krishnan v. State of Madras, 1951 SCR 621 = (AIR 1951 SC 301 ), the general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of S.6 of the General Clauses Act." 26. The U. P. Act, 1947, however, expressly attracts S.6 of the U. P. General Clauses Act 1 of 1904 (vide S. 1 (4)) and that is why we have discussed the position even with reference to the General Clauses Act. 27. From what we have stated above, it follows that the argument of any vested right in the defendant being taken away does not hold good; nor is there any foundation, for the contention that the later Act is being applied retrospectively. All that we hold is (a) that a disability of the plaintiff to enforce his cause of action under the ordinarily law may not necessarily be transmuted into a substantive right in the defendant, (b) that right of a statutory tenent created under a temporary statute, as in this case, go to the extent of merely preventing the eviction so long as the temporary statute lasts, (c) that the provisions of Section 43 do not preserve, subsequent to repeal any right to rebuff the plaintiffs claim for eviction and (d) that S.6 of the General clauses Act does not justify anything larger or for any time longer than S.2 of the Act confers or lasts. It is appropriate for a Court to do justice between parties to the litigation and in moulding the relief in the light of the subsequent developments, to take note of legislative changes. A court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again. In the present case, it is not seriously disputed that if the plaintiff were to sue for recovery of possession today, the Rent Control Law does not stand in the way. Therefore, it is manifestly a measure of doing justice between the parties and ending litigation, which has seen two decades pass, to conclude it here by taking cognizance and adjusting the relief in the light of the later Act and repeal of the earlier Act. Nevertheless, it is contended that the present suit cannot be decreed in view of the provisions of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. This statute which provides for summary eviction of unauthorised occupants cannot obstruct the suit for eviction of a tenant. The farfetched submission has hardly any substance and we reject it. | 0[ds]17. We have in this case a temporary Act which would have died a natural death by the end of September, 1972 but before its life had run out was extinguished by statutory repeal on 22nd July, 1972 on which date the later Act came into force. Surely, there has been a repeal of the Act which was relied upon successfully by the defendant and his legal representative the appellant, throughout the litigation. But now that defence or protection is no longer available. However, counsel for the appellant contends that a right has accrued to him under the Act which cannot be taken away by its repeal since the later Act is not in terms a retrospective one. Factually, it is correct to say that Section 43 has not been made retrospective19. Section 43 (2) (h) states that notwithstanding the repeal of the earlier Act any Court before which any suit or other proceeding relating to the...eviction from any building is pending immediately before the commencement of this Act may, on an application being made to it which 60 days from such commencement, grant leave to any party to amend its pleadings in consequence of the provisions of this Act". It is, therefore, clear that even if the statute for recovery of possession be one under the earlier Rent Control Law the later Act will apply and necessary amendments in the pleadings can be made. This definitely indicates that it is the later Act that must govern pending proceedings for recovery of possession or recovery or fixation of rent. However, the suit with which we are concerned is not even one under the Act, but proceeds on the footing that the defendant is only a licensee. So much so, none of the saving clauses in S.43 (2) applies. The result is that the application of the old Act is repealled by the general rule that on repeal a statute is deemed not to have been on the Statute Book at all26. The U. P. Act, 1947, however, expressly attracts S.6 of the U. P. General Clauses Act 1 of 1904 (vide S. 1 (4)) and that is why we have discussed the position even with reference to the General Clauses Act27. From what we have stated above, it follows that the argument of any vested right in the defendant being taken away does not hold good; nor is there any foundation, for the contention that the later Act is being applied retrospectively. All that we hold is (a) that a disability of the plaintiff to enforce his cause of action under the ordinarily law may not necessarily be transmuted into a substantive right in the defendant, (b) that right of a statutory tenent created under a temporary statute, as in this case, go to the extent of merely preventing the eviction so long as the temporary statute lasts, (c) that the provisions of Section 43 do not preserve, subsequent to repeal any right to rebuff the plaintiffs claim for eviction and (d) that S.6 of the General clauses Act does not justify anything larger or for any time longer than S.2 of the Act confers or lasts. It is appropriate for a Court to do justice between parties to the litigation and in moulding the relief in the light of the subsequent developments, to take note of legislative changes. A court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again. In the present case, it is not seriously disputed that if the plaintiff were to sue for recovery of possession today, the Rent Control Law does not stand in the way. Therefore, it is manifestly a measure of doing justice between the parties and ending litigation, which has seen two decades pass, to conclude it here by taking cognizance and adjusting the relief in the light of the later Act and repeal of the earlier Act. Nevertheless, it is contended that the present suit cannot be decreed in view of the provisions of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. This statute which provides for summary eviction of unauthorised occupants cannot obstruct the suit for eviction of a tenant. The farfetched submission has hardly any substance and we reject it. | 0 | 6,706 | 800 | ### Instruction:
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of the General Clauses Act. What follows? The survival of the right or the continuation of the operation of the Act to the proceedings is all that is ensured, not the expansion or extension of the right. For the normal life of the Act i.e. till September 30, 1972, the dispossession of the tenant is permissible only if the grounds in Section 2 are satisfied by the landlord. This right is circumscribed in content to conditions set out and limited in duration to the period beyond which the Act does not exist. To hold otherwise would be to give more quantum of right to the party than he would have enjoyed had the repeal not been made. Not to affect the previous operation cannot be converted into sanctioning subsequent operation. To read post-mortem operation into a temporary Act because of a premature repeal of it is wrong. To adopt the words Jagannadhadas, J. in Indira Sohanlal v. Custodian of Evacuee Property, Delhi, AIR 1956 SC 77 at p. 84 has observed :"What in effect, learned counsel for the appellant contends for is not the "previous operation of the repealed law" but the future operation of the previous law". On this footing the right, if any, that the defendant claims terminates with the expiration of that temporary statute. 24. The only further question is whether it is permissible for this Court to take note of the extinguishment of the statutory tenancy at this stage and grant relief to the appellant accordingly. The leading case of Lachmeshwar Prassad v. Keshwar Lal, AIR 1941 FC 5 at p. 6 lays down the law on the point. Gwyer, C.J., quoted with approval the following observations of Hughes, C.J.:"We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered". Justice Varadachariar, J. in the same case stated that in this country the Courts have recognised an appeal to be in the nature of a re-hearing and that "in moulding the relief to be granted in a case on appeal, the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against." This appellate obligation is almost jurisdictional. In a sense, the multi-decked mechanism of the legal process, at every tier, is the handmaid, not the mistress of justice. 25. We may mention as an additional reason for our conclusion that the provisions of S.6 of the General Clauses Act in relation to the effect of repeal do not ordinarily apply to a temporary Act. Stating this proposition, Gajendragadkar, J, as he then was, indicated the consequences of repeal of a temporary Act. In State of Orissa v. Bhupendra Kumar, AIR 1962 SC 945 , the learned Judge continued."As observed by Patanjali Sastri, J, as he then was, in S. Krishnan v. State of Madras, 1951 SCR 621 = (AIR 1951 SC 301 ), the general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of S.6 of the General Clauses Act." 26. The U. P. Act, 1947, however, expressly attracts S.6 of the U. P. General Clauses Act 1 of 1904 (vide S. 1 (4)) and that is why we have discussed the position even with reference to the General Clauses Act. 27. From what we have stated above, it follows that the argument of any vested right in the defendant being taken away does not hold good; nor is there any foundation, for the contention that the later Act is being applied retrospectively. All that we hold is (a) that a disability of the plaintiff to enforce his cause of action under the ordinarily law may not necessarily be transmuted into a substantive right in the defendant, (b) that right of a statutory tenent created under a temporary statute, as in this case, go to the extent of merely preventing the eviction so long as the temporary statute lasts, (c) that the provisions of Section 43 do not preserve, subsequent to repeal any right to rebuff the plaintiffs claim for eviction and (d) that S.6 of the General clauses Act does not justify anything larger or for any time longer than S.2 of the Act confers or lasts. It is appropriate for a Court to do justice between parties to the litigation and in moulding the relief in the light of the subsequent developments, to take note of legislative changes. A court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again. In the present case, it is not seriously disputed that if the plaintiff were to sue for recovery of possession today, the Rent Control Law does not stand in the way. Therefore, it is manifestly a measure of doing justice between the parties and ending litigation, which has seen two decades pass, to conclude it here by taking cognizance and adjusting the relief in the light of the later Act and repeal of the earlier Act. Nevertheless, it is contended that the present suit cannot be decreed in view of the provisions of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. This statute which provides for summary eviction of unauthorised occupants cannot obstruct the suit for eviction of a tenant. The farfetched submission has hardly any substance and we reject it.
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17. We have in this case a temporary Act which would have died a natural death by the end of September, 1972 but before its life had run out was extinguished by statutory repeal on 22nd July, 1972 on which date the later Act came into force. Surely, there has been a repeal of the Act which was relied upon successfully by the defendant and his legal representative the appellant, throughout the litigation. But now that defence or protection is no longer available. However, counsel for the appellant contends that a right has accrued to him under the Act which cannot be taken away by its repeal since the later Act is not in terms a retrospective one. Factually, it is correct to say that Section 43 has not been made retrospective19. Section 43 (2) (h) states that notwithstanding the repeal of the earlier Act any Court before which any suit or other proceeding relating to the...eviction from any building is pending immediately before the commencement of this Act may, on an application being made to it which 60 days from such commencement, grant leave to any party to amend its pleadings in consequence of the provisions of this Act". It is, therefore, clear that even if the statute for recovery of possession be one under the earlier Rent Control Law the later Act will apply and necessary amendments in the pleadings can be made. This definitely indicates that it is the later Act that must govern pending proceedings for recovery of possession or recovery or fixation of rent. However, the suit with which we are concerned is not even one under the Act, but proceeds on the footing that the defendant is only a licensee. So much so, none of the saving clauses in S.43 (2) applies. The result is that the application of the old Act is repealled by the general rule that on repeal a statute is deemed not to have been on the Statute Book at all26. The U. P. Act, 1947, however, expressly attracts S.6 of the U. P. General Clauses Act 1 of 1904 (vide S. 1 (4)) and that is why we have discussed the position even with reference to the General Clauses Act27. From what we have stated above, it follows that the argument of any vested right in the defendant being taken away does not hold good; nor is there any foundation, for the contention that the later Act is being applied retrospectively. All that we hold is (a) that a disability of the plaintiff to enforce his cause of action under the ordinarily law may not necessarily be transmuted into a substantive right in the defendant, (b) that right of a statutory tenent created under a temporary statute, as in this case, go to the extent of merely preventing the eviction so long as the temporary statute lasts, (c) that the provisions of Section 43 do not preserve, subsequent to repeal any right to rebuff the plaintiffs claim for eviction and (d) that S.6 of the General clauses Act does not justify anything larger or for any time longer than S.2 of the Act confers or lasts. It is appropriate for a Court to do justice between parties to the litigation and in moulding the relief in the light of the subsequent developments, to take note of legislative changes. A court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again. In the present case, it is not seriously disputed that if the plaintiff were to sue for recovery of possession today, the Rent Control Law does not stand in the way. Therefore, it is manifestly a measure of doing justice between the parties and ending litigation, which has seen two decades pass, to conclude it here by taking cognizance and adjusting the relief in the light of the later Act and repeal of the earlier Act. Nevertheless, it is contended that the present suit cannot be decreed in view of the provisions of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. This statute which provides for summary eviction of unauthorised occupants cannot obstruct the suit for eviction of a tenant. The farfetched submission has hardly any substance and we reject it.
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Hawaldar Singh and Others Vs. State of Uttar Pradesh | 1. Notice in this special leave petition was confined to the question whether petitioners Nos. 2 and 3, Hawaldar Singh and Khan Singh were under the age of 16 years on the date of occurrence and therefore entitled to the benefit of the U.P. Children Act, 1961 (1952 ?) although no such question was raised either before the Court of Session or the High Court. This Court however by its order dated November 2, 1982 thought it proper, in the interest of justice, to direct the Sessions Judge of Kheri to hold an inquiry into the question of age of each of the two petitioners on the date of the incident. In compliance with the said directions the learned Sessions Judge forwarded his report dated December 14, 1982 stating that no evidence was adduced by any of the parties as regards the age of the two petitioners Hawaldar Singh and Khan Singh, but that the reports of the Chief Medical Officer dated December 7, 1982 showed that both of them had attained the age of 16 years on the date of the occurrence and therefore they were not entitled to the benefit of the U.P. Children Act2. When the matter was placed before this Court on February 14, 1983, a grievance was made by learned counsel for the petitioners that the report of the learned Sessions Judge was not based on any evidence. He also prayed for a fresh opportunity to be given to the petitioners to lead their evidence. This Court accordingly by its order of even date directed the learned Sessions Judge to record the evidence of the Chief Medical Officer and also to afford a fresh opportunity to the petitioners to adduce evidence as to their age. The learned Sessions Judge has now along with his report dated March 11, 1983 forwarded the deposition of Dr. S. K. Tiwari, Senior Radiologist, CW 1 and Dr. B. S. Mathur, Chief Medical Officer, CW 2, both of whom are attached to the Sadar Hospital, Bareilly, together with the X-ray reports and X-ray plates. For reasons best known to them, the petitioners again did not avail of the opportunity to lead evidence in proof of their age; but instead have filed two documents viz. School Leaving Certificate of Khan Singh and an entry from the Kutumb Register3. It is amply clear that despite repeated opportunities, the petitioners have led no evidence and have failed to prove that either of them was under the age of 16 years on the date of the occurrence and therefore entitled to the benefit of the U.P. Children Act. Learned counsel for the petitioners however drew our attention to the fact that in the bail application moved before the Court of Session during the trial the age of one of the petitioners was shown as 11 years. We find it difficult to rely on so slender a basis as to hold that the petitioners were governed by the U.P. Children Act. He further showed us two horoscopes in an endeavour to establish that the petitioners were children at the time of the commission of the offence. We had a look at the two horoscopes, and though the papers on which they are engrossed give an ancient appearance, the documents appear to have been prepared for purposes of this case. Such documents could always be brought into existence at any time. We cannot rely upon the two horoscopes produced before us4. On the basis of the testimony of Dr. S. K. Tiwari, Senior Radiologist CW 1, and Dr. B. S. Mathur, Chief Medical Officer, CW 2 which stands fully corroborated by the X-ray reports and X-ray plates submitted by them, we are satisfied that no other conclusion is, possible than the one reached by the learned Sessions Judge, and the two petitioners Hawaldar Singh and Khan Singh are not entitled to the benefit of the U.P. Children Act, 1961 | 0[ds]3. It is amply clear that despite repeated opportunities, the petitioners have led no evidence and have failed to prove that either of them was under the age of 16 years on the date of the occurrence and therefore entitled to the benefit of the U.P. Children Act. Learned counsel for the petitioners however drew our attention to the fact that in the bail application moved before the Court of Session during the trial the age of one of the petitioners was shown as 11 years. We find it difficult to rely on so slender a basis as to hold that the petitioners were governed by the U.P. Children Act. He further showed us two horoscopes in an endeavour to establish that the petitioners were children at the time of the commission of the offence. We had a look at the two horoscopes, and though the papers on which they are engrossed give an ancient appearance, the documents appear to have been prepared for purposes of this case. Such documents could always be brought into existence at any time. We cannot rely upon the two horoscopes produced before us4. On the basis of the testimony of Dr. S. K. Tiwari, Senior Radiologist CW 1, and Dr. B. S. Mathur, Chief Medical Officer, CW 2 which stands fully corroborated by theray plates submitted by them, we are satisfied that no other conclusion is, possible than the one reached by the learned Sessions Judge, and the two petitioners Hawaldar Singh and Khan Singh are not entitled to the benefit of the U.P. Children Act, 196 | 0 | 710 | 290 | ### Instruction:
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1. Notice in this special leave petition was confined to the question whether petitioners Nos. 2 and 3, Hawaldar Singh and Khan Singh were under the age of 16 years on the date of occurrence and therefore entitled to the benefit of the U.P. Children Act, 1961 (1952 ?) although no such question was raised either before the Court of Session or the High Court. This Court however by its order dated November 2, 1982 thought it proper, in the interest of justice, to direct the Sessions Judge of Kheri to hold an inquiry into the question of age of each of the two petitioners on the date of the incident. In compliance with the said directions the learned Sessions Judge forwarded his report dated December 14, 1982 stating that no evidence was adduced by any of the parties as regards the age of the two petitioners Hawaldar Singh and Khan Singh, but that the reports of the Chief Medical Officer dated December 7, 1982 showed that both of them had attained the age of 16 years on the date of the occurrence and therefore they were not entitled to the benefit of the U.P. Children Act2. When the matter was placed before this Court on February 14, 1983, a grievance was made by learned counsel for the petitioners that the report of the learned Sessions Judge was not based on any evidence. He also prayed for a fresh opportunity to be given to the petitioners to lead their evidence. This Court accordingly by its order of even date directed the learned Sessions Judge to record the evidence of the Chief Medical Officer and also to afford a fresh opportunity to the petitioners to adduce evidence as to their age. The learned Sessions Judge has now along with his report dated March 11, 1983 forwarded the deposition of Dr. S. K. Tiwari, Senior Radiologist, CW 1 and Dr. B. S. Mathur, Chief Medical Officer, CW 2, both of whom are attached to the Sadar Hospital, Bareilly, together with the X-ray reports and X-ray plates. For reasons best known to them, the petitioners again did not avail of the opportunity to lead evidence in proof of their age; but instead have filed two documents viz. School Leaving Certificate of Khan Singh and an entry from the Kutumb Register3. It is amply clear that despite repeated opportunities, the petitioners have led no evidence and have failed to prove that either of them was under the age of 16 years on the date of the occurrence and therefore entitled to the benefit of the U.P. Children Act. Learned counsel for the petitioners however drew our attention to the fact that in the bail application moved before the Court of Session during the trial the age of one of the petitioners was shown as 11 years. We find it difficult to rely on so slender a basis as to hold that the petitioners were governed by the U.P. Children Act. He further showed us two horoscopes in an endeavour to establish that the petitioners were children at the time of the commission of the offence. We had a look at the two horoscopes, and though the papers on which they are engrossed give an ancient appearance, the documents appear to have been prepared for purposes of this case. Such documents could always be brought into existence at any time. We cannot rely upon the two horoscopes produced before us4. On the basis of the testimony of Dr. S. K. Tiwari, Senior Radiologist CW 1, and Dr. B. S. Mathur, Chief Medical Officer, CW 2 which stands fully corroborated by the X-ray reports and X-ray plates submitted by them, we are satisfied that no other conclusion is, possible than the one reached by the learned Sessions Judge, and the two petitioners Hawaldar Singh and Khan Singh are not entitled to the benefit of the U.P. Children Act, 1961
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3. It is amply clear that despite repeated opportunities, the petitioners have led no evidence and have failed to prove that either of them was under the age of 16 years on the date of the occurrence and therefore entitled to the benefit of the U.P. Children Act. Learned counsel for the petitioners however drew our attention to the fact that in the bail application moved before the Court of Session during the trial the age of one of the petitioners was shown as 11 years. We find it difficult to rely on so slender a basis as to hold that the petitioners were governed by the U.P. Children Act. He further showed us two horoscopes in an endeavour to establish that the petitioners were children at the time of the commission of the offence. We had a look at the two horoscopes, and though the papers on which they are engrossed give an ancient appearance, the documents appear to have been prepared for purposes of this case. Such documents could always be brought into existence at any time. We cannot rely upon the two horoscopes produced before us4. On the basis of the testimony of Dr. S. K. Tiwari, Senior Radiologist CW 1, and Dr. B. S. Mathur, Chief Medical Officer, CW 2 which stands fully corroborated by theray plates submitted by them, we are satisfied that no other conclusion is, possible than the one reached by the learned Sessions Judge, and the two petitioners Hawaldar Singh and Khan Singh are not entitled to the benefit of the U.P. Children Act, 196
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Collector Of Customs & Ors Vs. M/S. Soorajmull Nagarmull & Anr | own creditor but to some third party who has obtained a final judgment against the creditor. By a parity of reasoning this amount which was with the Collector of Customs, could be asked to be deposited with the Income-tax Authorities under S. 46 (5A).The argument is extremely technical for that the firm is entitled to get a double benefit of the decree, first by having the decretal amount paid to the benefit of the firm and then to recover it again from the Union of India. 9. It is contended lastly that the notice of the Income-tax Officer spoke of In-come-tax and /or penalty whereas the amount was taken towards payment of Super-tax due from the firm. It is, however, conceded in the face of authorities cited at the Bar that the super-tax is also a kind of Income-tax and, therefore, the notice could issue in the form it did. The leading case on the subject is In re Reckitt, 1933-1 ITR 1 (CA) and learned counsel for the respondents did not controvert the proposition laid down there. It is, however, argued on the authority of Bidhoo Beebee v. Keshub Chunder Baboo, (1868) 9 Suth WR 462, Mahiganj Loan Office. Ltd. v. Behari Lal Chaki, ILR (1937) 1 Cal 781 = (AIR 1937 Cal 211), A. P. Bagchi v. Mrs. F. Morgan, AIR 1935 All 513 and thomas Skinner v. Ram Rachpal, ILR (138) All 294 = (AIR 1938 All 141 ) that the payment which can be adjusted under Order 21, Rule 2 is a voluntary payment by the judgment-debtor to the decree-holder and that this is not a case of voluntary payment at all. The rulings which have been cited do not, in our opinion, apply here. This point was not considered in the High Court and seems to have been thought of here. Order 21, Rule 2 merely contemplates payment out of Court and says nothing about voluntary payment. A garnishee order can never by its nature lead to a voluntary payment and it is not to be though that a garnishee order does not lead to the adjustment of the decree sufficient for being certified by the Court. Payment by virtue of Section 46(5A), as we have stated before, is in the nature of the a garnishee payment and must, therefore, be subject to the same rule. 10. The rulings themselves do not control the present matter. In (1868) 9 Suth WR 462 the payment was not under a garnishee order but under the process of the court issued in execution by arrest of the judgment-debtor. Contrasting what had happened in the case with the words of the second rule of Order 21 (then S. 206 of the Code of 1859) the learned Judges observed that Section 206 covers cases of voluntary payment. The debtor was protected by treating the payment as being made through the court. The exact point we are dealing with was not before the Court. In ILR (1937) 1 Cal 781 = (AIR 1937 Cal 211) there was a scheme framed by the depositors of a banking company for return of their deposits in spite of opposition from decree-holders depositors of the Company. The scheme was sanctioned by the Court. The scheme was binding on the decree-holder but it was not treated as an adjustment within O. 21, R. 2 of the Code of Civil Procedure.The reason given was that the adjustment must be to the satisfaction of the decree-holder and must be with the consent of both the decree-holder and the judgment-debtor and not one which is made binding by operation of law. It is to be noticed that that was a payment to which the judgment-debtor had objected although it was binding on him. We see no reason for making a distinction between a voluntary payment out of court and a payment out of court which the law regards as valid.No reasons are given in the judgment why such a distinction should be made. In ILR (1938) All 294 = (AIR 1938 All 141 ), the payment was made in court and not outside Court. This is the nearest case to the present one and but for this difference, it is reasonable to think that the learned Judges would have taken the same view of the matter as we have taken. The reasons given by the learned Judges brings out the real object of the rule:"where a judgment-debtor makes payment outside the Court, the Court knows nothing about the payment and therefore Rule 2, Order 21 ordains that the parties should inform the Court about the payment." This object in our opinion is fully achieved when there is payment under a garnishee order outside the Court. In the case cited the Court knew of the payment and could give protection in other ways. In AIR 1935 All 513 the payment was again without the consent of the judgment-debtor either in fact or in law. Too much emphasis appears to have been placed upon mutual understanding and too little on payment out of court which is the essence of the rule. The case turned on whether there was any understanding between the parties that sums spent by the judgment-debtor on repairs would be set off against the decretal amount and therefore Order 21, Rule 2 of the Code of Civil Procedure was held inapplicable. 11.In none of the cases the point of a garnishee order was considered. In our opinion, a case of a garnishee payment or one made under Section 46 (5A) of the Income-tax Act of 1922 stands on a different footing and if the payment had been legally made out of the Court in full and final discharge of the liability under a decree, there is no reason why the judgment-debtor cannot move the Court for getting the adjustment or payment certified.The payment was required to be certified under Order 21, Rule 2 of the Code of Civil Procedure and we order that it be so certified. 1 | 1[ds]In our judgment this plea is highly technical. The amount was recovered by the Collector of Customs from the firm and was being held by the Union of India through the Collector of Customs. The Collector of Customs paid the money not on behalf of himself but on behalf of the Union of India and I must be treated as a proper payment of the amount to the firm The objection of the respondent that it amounts to a payment by one Department of the Government to another does not, in our opinion, hold much substance. It is also extremely technical. The Union of India operates through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector of Customs who had in the first instance recovered this money and held it from the firm8. Such notices of the Income-tax Officer are no more than a kind of a garnishee order issued to the person holding money which money is due to an assessee.The Collector of Customs had recovered this money and under the decrees of the Court the Union of India was liable to refund it to the firm. A garnishee order is issued to a debtor not to pay to his own creditor but to some third party who has obtained a final judgment against the creditor. By a parity of reasoning this amount which was with the Collector of Customs, could be asked to be deposited with the Income-tax Authorities under S. 46 (5A).The argument is extremely technical for that the firm is entitled to get a double benefit of the decree, first by having the decretal amount paid to the benefit of the firm and then to recover it again from the Union of IndiaThe rulings which have been cited do not, in our opinion, apply here. This point was not considered in the High Court and seems to have been thought of here. Order 21, Rule 2 merely contemplates payment out of Court and says nothing about voluntary payment. A garnishee order can never by its nature lead to a voluntary payment and it is not to be though that a garnishee order does not lead to the adjustment of the decree sufficient for being certified by the Court. Payment by virtue of Section 46(5A), as we have stated before, is in the nature of the a garnishee payment and must, therefore, be subject to the same ruleThis object in our opinion is fully achieved when there is payment under a garnishee order outside the Court. In the case cited the Court knew of the payment and could give protection in other ways. In AIR 1935 All 513 the payment was again without the consent of the judgment-debtor either in fact or in law. Too much emphasis appears to have been placed upon mutual understanding and too little on payment out of court which is the essence of the rule. The case turned on whether there was any understanding between the parties that sums spent by the judgment-debtor on repairs would be set off against the decretal amount and therefore Order 21, Rule 2 of the Code of Civil Procedure was held inapplicable11.In none of the cases the point of a garnishee order was considered. In our opinion, a case of a garnishee payment or one made under Section 46 (5A) of the Income-tax Act of 1922 stands on a different footing and if the payment had been legally made out of the Court in full and final discharge of the liability under a decree, there is no reason why the judgment-debtor cannot move the Court for getting the adjustment or payment certified.The payment was required to be certified under Order 21, Rule 2 of the Code of Civil Procedure and we order that it be so certified. | 1 | 2,485 | 691 | ### Instruction:
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own creditor but to some third party who has obtained a final judgment against the creditor. By a parity of reasoning this amount which was with the Collector of Customs, could be asked to be deposited with the Income-tax Authorities under S. 46 (5A).The argument is extremely technical for that the firm is entitled to get a double benefit of the decree, first by having the decretal amount paid to the benefit of the firm and then to recover it again from the Union of India. 9. It is contended lastly that the notice of the Income-tax Officer spoke of In-come-tax and /or penalty whereas the amount was taken towards payment of Super-tax due from the firm. It is, however, conceded in the face of authorities cited at the Bar that the super-tax is also a kind of Income-tax and, therefore, the notice could issue in the form it did. The leading case on the subject is In re Reckitt, 1933-1 ITR 1 (CA) and learned counsel for the respondents did not controvert the proposition laid down there. It is, however, argued on the authority of Bidhoo Beebee v. Keshub Chunder Baboo, (1868) 9 Suth WR 462, Mahiganj Loan Office. Ltd. v. Behari Lal Chaki, ILR (1937) 1 Cal 781 = (AIR 1937 Cal 211), A. P. Bagchi v. Mrs. F. Morgan, AIR 1935 All 513 and thomas Skinner v. Ram Rachpal, ILR (138) All 294 = (AIR 1938 All 141 ) that the payment which can be adjusted under Order 21, Rule 2 is a voluntary payment by the judgment-debtor to the decree-holder and that this is not a case of voluntary payment at all. The rulings which have been cited do not, in our opinion, apply here. This point was not considered in the High Court and seems to have been thought of here. Order 21, Rule 2 merely contemplates payment out of Court and says nothing about voluntary payment. A garnishee order can never by its nature lead to a voluntary payment and it is not to be though that a garnishee order does not lead to the adjustment of the decree sufficient for being certified by the Court. Payment by virtue of Section 46(5A), as we have stated before, is in the nature of the a garnishee payment and must, therefore, be subject to the same rule. 10. The rulings themselves do not control the present matter. In (1868) 9 Suth WR 462 the payment was not under a garnishee order but under the process of the court issued in execution by arrest of the judgment-debtor. Contrasting what had happened in the case with the words of the second rule of Order 21 (then S. 206 of the Code of 1859) the learned Judges observed that Section 206 covers cases of voluntary payment. The debtor was protected by treating the payment as being made through the court. The exact point we are dealing with was not before the Court. In ILR (1937) 1 Cal 781 = (AIR 1937 Cal 211) there was a scheme framed by the depositors of a banking company for return of their deposits in spite of opposition from decree-holders depositors of the Company. The scheme was sanctioned by the Court. The scheme was binding on the decree-holder but it was not treated as an adjustment within O. 21, R. 2 of the Code of Civil Procedure.The reason given was that the adjustment must be to the satisfaction of the decree-holder and must be with the consent of both the decree-holder and the judgment-debtor and not one which is made binding by operation of law. It is to be noticed that that was a payment to which the judgment-debtor had objected although it was binding on him. We see no reason for making a distinction between a voluntary payment out of court and a payment out of court which the law regards as valid.No reasons are given in the judgment why such a distinction should be made. In ILR (1938) All 294 = (AIR 1938 All 141 ), the payment was made in court and not outside Court. This is the nearest case to the present one and but for this difference, it is reasonable to think that the learned Judges would have taken the same view of the matter as we have taken. The reasons given by the learned Judges brings out the real object of the rule:"where a judgment-debtor makes payment outside the Court, the Court knows nothing about the payment and therefore Rule 2, Order 21 ordains that the parties should inform the Court about the payment." This object in our opinion is fully achieved when there is payment under a garnishee order outside the Court. In the case cited the Court knew of the payment and could give protection in other ways. In AIR 1935 All 513 the payment was again without the consent of the judgment-debtor either in fact or in law. Too much emphasis appears to have been placed upon mutual understanding and too little on payment out of court which is the essence of the rule. The case turned on whether there was any understanding between the parties that sums spent by the judgment-debtor on repairs would be set off against the decretal amount and therefore Order 21, Rule 2 of the Code of Civil Procedure was held inapplicable. 11.In none of the cases the point of a garnishee order was considered. In our opinion, a case of a garnishee payment or one made under Section 46 (5A) of the Income-tax Act of 1922 stands on a different footing and if the payment had been legally made out of the Court in full and final discharge of the liability under a decree, there is no reason why the judgment-debtor cannot move the Court for getting the adjustment or payment certified.The payment was required to be certified under Order 21, Rule 2 of the Code of Civil Procedure and we order that it be so certified. 1
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In our judgment this plea is highly technical. The amount was recovered by the Collector of Customs from the firm and was being held by the Union of India through the Collector of Customs. The Collector of Customs paid the money not on behalf of himself but on behalf of the Union of India and I must be treated as a proper payment of the amount to the firm The objection of the respondent that it amounts to a payment by one Department of the Government to another does not, in our opinion, hold much substance. It is also extremely technical. The Union of India operates through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector of Customs who had in the first instance recovered this money and held it from the firm8. Such notices of the Income-tax Officer are no more than a kind of a garnishee order issued to the person holding money which money is due to an assessee.The Collector of Customs had recovered this money and under the decrees of the Court the Union of India was liable to refund it to the firm. A garnishee order is issued to a debtor not to pay to his own creditor but to some third party who has obtained a final judgment against the creditor. By a parity of reasoning this amount which was with the Collector of Customs, could be asked to be deposited with the Income-tax Authorities under S. 46 (5A).The argument is extremely technical for that the firm is entitled to get a double benefit of the decree, first by having the decretal amount paid to the benefit of the firm and then to recover it again from the Union of IndiaThe rulings which have been cited do not, in our opinion, apply here. This point was not considered in the High Court and seems to have been thought of here. Order 21, Rule 2 merely contemplates payment out of Court and says nothing about voluntary payment. A garnishee order can never by its nature lead to a voluntary payment and it is not to be though that a garnishee order does not lead to the adjustment of the decree sufficient for being certified by the Court. Payment by virtue of Section 46(5A), as we have stated before, is in the nature of the a garnishee payment and must, therefore, be subject to the same ruleThis object in our opinion is fully achieved when there is payment under a garnishee order outside the Court. In the case cited the Court knew of the payment and could give protection in other ways. In AIR 1935 All 513 the payment was again without the consent of the judgment-debtor either in fact or in law. Too much emphasis appears to have been placed upon mutual understanding and too little on payment out of court which is the essence of the rule. The case turned on whether there was any understanding between the parties that sums spent by the judgment-debtor on repairs would be set off against the decretal amount and therefore Order 21, Rule 2 of the Code of Civil Procedure was held inapplicable11.In none of the cases the point of a garnishee order was considered. In our opinion, a case of a garnishee payment or one made under Section 46 (5A) of the Income-tax Act of 1922 stands on a different footing and if the payment had been legally made out of the Court in full and final discharge of the liability under a decree, there is no reason why the judgment-debtor cannot move the Court for getting the adjustment or payment certified.The payment was required to be certified under Order 21, Rule 2 of the Code of Civil Procedure and we order that it be so certified.
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Mohini Thapar (Dead) By L.Rs Vs. Commissioner of Income Tax (Central) Calcutta and Others | of the Assistant Commissioner. Thereafter at the instance of the assessee, the question set out below was submitted to the High Court under section 66(1) of the Indian Income-tax Act, 1922, in respect of the assessment year 1949-50:"(1) Whether on the facts and on the circumstances of the case, the income of Rs. 21, 225 derived from deposits and shares held by the assessees wife, Smt. Mohini Devi Thapar was income from assets directly or indirectly transferred by the assessee to his wife within the meaning of Section 16(3) of the Income-tax Act."Similar questions were referred in respect of other assessment year. The High Court answered these questions in favour of the revenue. Hence these appeals.Section 16(3)(a)(iii) of the Act-the provision relevant for the purpose of these appeals reads thus:(2) "In computing the total income of any individual for the purpose of assessment, there shall be included-(a) so much of the income of a wife or minor child of such individual as arises directly or indirectly-(i).................(ii).................(iii)from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart;"2. The assets transferred in this case is the gift of cash amounts made by the assessee to his wife. The transfers in question are direct transfers. But those assets, as mentioned earlier, were invested either in shares or otherwise. Hence it was urged on behalf of the revenue that the incomes realised either as dividends from shares or as interest from deposits are income indirectly received in respect of the transfer of cash directly made. This contention of the revenue appears to be sound. That position clearly emerges from the plain language of the section.3. It was urged by Dr. Pal, learned counsel for the assessee that there is no nexus between the income earned and the transfer of the assets. According to him before an income can come within section 16(3) (a) (iii) it must be an income directly arising from the assets transferred. In other words, he urged that only such income which can be said to have directly sprung from the assets transferred "Can come within the scope of section 16 (3) (a) (iii). We are unable to accept this contention as sound. Otherwise the expression as arises directly or indirectly in section 16(3)(a) would become redundant. The net cast by section 16(3)(a) (iii) includes not merely the income that arises directly from the assets transferred but also that arises indirectly from the assets transferred. We are in agreement with the contention of Dr. Pal that the income that can be brought to tax under section 16 (3) (a) (iii) must have a nexus with the assets transferred directly or indirectly. But in this case the income with which we are concerned has a nexus with the assets transferred.In support of his contention Dr. Pal relied on the decision of this Court in Commissioner of Income-Tax, West Bengal III v. Prem Bhai Parakh and others([1970] 77 I.T.R. p. 27.). The facts of that case are as follows: The assessee, who was a partner in a firm having 7 annas share therein, retired from the firm on July 1, 1954. Thereafter, he gifted Rs. 75, 000 to each of his four sons, three of whom were minors. There was a reconstitution of the firm with effect from July 2, 1954, whereby the major son became a partner and the minor sons were admitted to the benefits of partnership in the firm. The question was whether the income arising to the minors by virtue of their admission to the benefits of partnership in the firm could be included in the total income of the assessee under section 16 (3) (a) (iv) a provision similar to section 1 6 (3) (a) (iii) The Tribunal found that the capital invested by the minors in the firm came from the gift made in their favour by their father, the assessee. This Court overruling the contention of the revenue came to the conclusion that the connection between the gifts made by the assessee and the income of the minors from the firm was a remote one and it could not be said that income arose directly or indirectly from the asses transferred. Hence I income arising to the three minor sons of the assessee by virtue of their admission to the benefits of partnership in the firm could not be included in the total income of the assessee. The ratio of the decision is found at page 30 of the report. This is what the Court observed in that case:"The connection between the gifts mentioned earlier and the income in question is a remote one. The income of the minors arose as a result of their admission to the benefits of the partnership. It is true that they were admitted to the benefits of the partnership because of the contribution made by them. But there is no nexus between the transfer of the assets and the income in question. It cannot be said that that income, arose directly or indirectly from the transfer of the assets referred to earlier. Section 16(3) of the Act created an artificial income. That section must receive strict construction as observed by this court in Commissioner of Income-tax v. Keshavlal Lallubhai Patel-(1965) 55 I.T.R. p. 637. In our judgment before an income can be held to come within the ambit of section 16(3), it must be proved to have arisen- directly or indirectly from a transfer of assets made by the assessee in favour of his wife or minor children. The connection between the transfer of assets and the income must be proximate. The income in question must arise as a result of the transfer and not in some manner connected with it."The ratio of that decision is inapplicable to the facts of the present case."4. Here we are dealing with an income which has proximate connection with the transfer of the assets made by the assessee. | 0[ds]This contention of the revenue appears to be sound. That position clearly emerges from the plain language of theare unable to accept this contention as sound. Otherwise the expression as arises directly or indirectly in section 16(3)(a) would become redundant. The net cast by section 16(3)(a) (iii) includes not merely the income that arises directly from the assets transferred but also that arises indirectly from the assets transferred. We are in agreement with the contention of Dr. Pal that the income that can be brought to tax under section 16 (3) (a) (iii) must have a nexus with the assets transferred directly or indirectly. But in this case the income with which we are concerned has a nexus with the assets transferred.Here we are dealing with an income which has proximate connection with the transfer of the assets made by the assessee. | 0 | 1,405 | 172 | ### Instruction:
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of the Assistant Commissioner. Thereafter at the instance of the assessee, the question set out below was submitted to the High Court under section 66(1) of the Indian Income-tax Act, 1922, in respect of the assessment year 1949-50:"(1) Whether on the facts and on the circumstances of the case, the income of Rs. 21, 225 derived from deposits and shares held by the assessees wife, Smt. Mohini Devi Thapar was income from assets directly or indirectly transferred by the assessee to his wife within the meaning of Section 16(3) of the Income-tax Act."Similar questions were referred in respect of other assessment year. The High Court answered these questions in favour of the revenue. Hence these appeals.Section 16(3)(a)(iii) of the Act-the provision relevant for the purpose of these appeals reads thus:(2) "In computing the total income of any individual for the purpose of assessment, there shall be included-(a) so much of the income of a wife or minor child of such individual as arises directly or indirectly-(i).................(ii).................(iii)from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart;"2. The assets transferred in this case is the gift of cash amounts made by the assessee to his wife. The transfers in question are direct transfers. But those assets, as mentioned earlier, were invested either in shares or otherwise. Hence it was urged on behalf of the revenue that the incomes realised either as dividends from shares or as interest from deposits are income indirectly received in respect of the transfer of cash directly made. This contention of the revenue appears to be sound. That position clearly emerges from the plain language of the section.3. It was urged by Dr. Pal, learned counsel for the assessee that there is no nexus between the income earned and the transfer of the assets. According to him before an income can come within section 16(3) (a) (iii) it must be an income directly arising from the assets transferred. In other words, he urged that only such income which can be said to have directly sprung from the assets transferred "Can come within the scope of section 16 (3) (a) (iii). We are unable to accept this contention as sound. Otherwise the expression as arises directly or indirectly in section 16(3)(a) would become redundant. The net cast by section 16(3)(a) (iii) includes not merely the income that arises directly from the assets transferred but also that arises indirectly from the assets transferred. We are in agreement with the contention of Dr. Pal that the income that can be brought to tax under section 16 (3) (a) (iii) must have a nexus with the assets transferred directly or indirectly. But in this case the income with which we are concerned has a nexus with the assets transferred.In support of his contention Dr. Pal relied on the decision of this Court in Commissioner of Income-Tax, West Bengal III v. Prem Bhai Parakh and others([1970] 77 I.T.R. p. 27.). The facts of that case are as follows: The assessee, who was a partner in a firm having 7 annas share therein, retired from the firm on July 1, 1954. Thereafter, he gifted Rs. 75, 000 to each of his four sons, three of whom were minors. There was a reconstitution of the firm with effect from July 2, 1954, whereby the major son became a partner and the minor sons were admitted to the benefits of partnership in the firm. The question was whether the income arising to the minors by virtue of their admission to the benefits of partnership in the firm could be included in the total income of the assessee under section 16 (3) (a) (iv) a provision similar to section 1 6 (3) (a) (iii) The Tribunal found that the capital invested by the minors in the firm came from the gift made in their favour by their father, the assessee. This Court overruling the contention of the revenue came to the conclusion that the connection between the gifts made by the assessee and the income of the minors from the firm was a remote one and it could not be said that income arose directly or indirectly from the asses transferred. Hence I income arising to the three minor sons of the assessee by virtue of their admission to the benefits of partnership in the firm could not be included in the total income of the assessee. The ratio of the decision is found at page 30 of the report. This is what the Court observed in that case:"The connection between the gifts mentioned earlier and the income in question is a remote one. The income of the minors arose as a result of their admission to the benefits of the partnership. It is true that they were admitted to the benefits of the partnership because of the contribution made by them. But there is no nexus between the transfer of the assets and the income in question. It cannot be said that that income, arose directly or indirectly from the transfer of the assets referred to earlier. Section 16(3) of the Act created an artificial income. That section must receive strict construction as observed by this court in Commissioner of Income-tax v. Keshavlal Lallubhai Patel-(1965) 55 I.T.R. p. 637. In our judgment before an income can be held to come within the ambit of section 16(3), it must be proved to have arisen- directly or indirectly from a transfer of assets made by the assessee in favour of his wife or minor children. The connection between the transfer of assets and the income must be proximate. The income in question must arise as a result of the transfer and not in some manner connected with it."The ratio of that decision is inapplicable to the facts of the present case."4. Here we are dealing with an income which has proximate connection with the transfer of the assets made by the assessee.
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This contention of the revenue appears to be sound. That position clearly emerges from the plain language of theare unable to accept this contention as sound. Otherwise the expression as arises directly or indirectly in section 16(3)(a) would become redundant. The net cast by section 16(3)(a) (iii) includes not merely the income that arises directly from the assets transferred but also that arises indirectly from the assets transferred. We are in agreement with the contention of Dr. Pal that the income that can be brought to tax under section 16 (3) (a) (iii) must have a nexus with the assets transferred directly or indirectly. But in this case the income with which we are concerned has a nexus with the assets transferred.Here we are dealing with an income which has proximate connection with the transfer of the assets made by the assessee.
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K. S. Venkataraman & Co Vs. State Of Madras | Ayyar, J., in the second case are in the nature of dicta; and in the third case the Madras High Court expressed the view that the bar created by S. 67 of the Income-tax Act did not prevent a High Court in a petition under Art. 226 of the Constitution from investigating the validity of a complaint that the fundamental rights of the applicant were infringed by the action of a taxing authority. In proceedings from assessment of tax, the applicant raised no question of vires of S. 3 of the Income-tax Act, and a reference under S. 66 of the Act was answered by the High Court. Thereafter in a petition under Art. 226 of the Constitution he challenged the validity of the assessment on the ground that the discretion given to the Income-tax Department to assess members of an association separately or collectively as an association infringed the guarantee of equal protection of laws. The High Court of Madras in considering the plea that there was a bar of res judicata observed that the Income-tax Tribunal was incompetent to entertain a plea about the vires of the statute under which it functioned. But beyond observing at p. 151. "We wish to make it very clear that it is not the provision (within the province?) of the department or even the statutory Tribunal, which is really the creation of the status (statute?) to entertain any objection to a piece of legislation, as being ultra vires or unconstitutional * *", nothing else was stated.66. It was submitted that this Court in 1951 SCR 1 : (AIR 1951 SC 23 ) has refused to accept Raleigh Investment Companys case 74 Ind App 50 : (AIR 1947 PC 78 ) as correctly decided. In the State of Tripuras case, 1951 SCR 1 : (AIR 1951 SC 23 ) the Income-tax Officer, Dacca served a notice upon the Manager of an Estate belonging to the Tripura State but situated in Bengal, calling upon the latter to furnish a return of the agricultural income under the Bengal Agricultural Income-tax Act, 1944. The State by its Ruler sued the Province of Bengal and the Income-tax Officer in the Court of the Subordinate Judge of Dacca for a declaration that the Act. in so far as it purported to impose liability to pay agricultural income-tax on the plaintiff was ultra vires and void, and for a perpetual injunction restraining the defendants from taking any steps to assess the plaintiff. After the partition of India the suit was tried by the Subordinate Judge, Alipore, in the State of West Bengal. The High Court of Calcutta held that the Court of Alipore had no jurisdiction to proceed with the suit. This Court in appeal held that the suit did lie in the Court of the Subordinate Judge, Alipore, and that a suit for injunction being not one to set aside or modify any assessment made under the Act, S. 65 of the Bengal Agricultural Income-tax Act, 1944 did not bar the suit, which was one in respect of an actionable wrong. Patanjali Sastri, J., delivering the majority judgment of this Court observed at p. 14 (of SCR) : (at p. 28 of AIR) :" * * * that the suit in question is not a suit to set aside or modify an assessment made under the Act, as no assessment had yet been made when it was instituted, and the subsequent completion of the assessment was made by the Pakistan Income-tax Authorities on terms agreed to between the parties and sanctioned by the Court." * *The gist of the wrongful act complained of in the present case is subjecting the plaintiff to the harassment and trouble by commencing against him an illegal and unauthorised assessment proceeding which may eventually result in an unlawful imposition and levy of tax."Mukherjea, J., who delivered a supplementary judgment agreed with Patanjali Sastri J. It is expressly recorded in the judgment that the correctness of the decision in Releigh Investment Companys case, 74 Ind App 50 : (AIR 1947 PC 78 ) was not challenged before the Court. Fazl Ali J., took a different view relying upon the principle of Releigh Investment Companys case, 74 Ind App 50 : (AIR 1947 PC 78 ), observing that it could not have been the intention of the Legislature that though the officer is not liable to be restrained from proceeding with an assessment, the provision which ensures such a result may be rendered nugatory by permitting an injunction to be claimed against the Provincial Government or the State. The question whether a suit to obtain refund of tax based on a provision of a statute alleged to be ultra vires was maintainable did not fall to be determined in the State of Tripuras case 1951 SCR 1 : (AIR 1951 SC 23 ) and was not decided.67. In our view, the authority of the taxing officer is derived from the investment of power under the Act which he is authorized to administer. If there is no defect in the enactment of a taxing statute, in so far as it authorises the constitution of a Tribunal, the Tribunal invested with authority in the matter of assessment and collection of tax, would in our judgment have power to entertain an objection and to decide whether a provision of the Act which it is called upon to administer is ultra vires and hence unenforceable.68. The Deputy Commercial Tax Officer had therefore power to assess the transaction of sale in works contract. Assuming that he erred in the interpretation of the contract or the relevant statutory provision, the order was on that account not without jurisdiction. It could only be set aside by appropriate proceedings under the Madras General Sales Tax Act, 1939, and not otherwise. The suit was therefore barred by the scheme of the Act and S. 18-A which was later incorporated by Act 6 of 1951.69. This appeal must therefore fail and is dismissed with costs.ORDER70. | 1[ds]Indeed, in view of the said machinery, the Judicial Committee even doubted whether the enactment of S. 67 was necessary to exclude jurisdiction. In its opinion it was superfluous. The entire reasoning of the Judicial Committee was, therefore, based upon the assumption, that the question of ultra vires can be canvassed and finally decided through the machinery provided under the concerned statute. The interpretation of S. 67 of the Income-tax Act was also based on the comprehensive scope given by the Judicial Committee to the said machinery provided under the said Act. Is this assumption correct? If not, as the Judicial Committee itself realised, the construction put upon S. 67 of the Income-tax Act would not also behave considered these decisions in some detail as it was contended that the present question was finally decided by some of the decisions of this Court. But a perusal of the judgments discloses that the said question, namely, whether a suit would lie when an assessment was made on the basis of a provision which was ultra vires the Constitution, was left open and indeed in one of the decisions clear observations were made questioning the correctness of the decision of the Privy Council in so far as it held that a suit would not be maintainable even in such a case. The question left open directly calls for a decision in this appeal.The legal position that emerges from the discussion may be summarized thus : If a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a civil court in that regard. But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof whereunder if functions. It must act under the Act and not outside it. If it acts on the basis of a provision of the statute, which is ultra vires to that extent it wold be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act would certainly lie in a civil court.On the said legal basis it follows that in the instant case the sales-tax authorities have acted outside the Act and not under it in making an assessment on the basis of the relevant part of the charging section which was declared to be ultra vires by thisthe State Legislature has no legislative power to impose a tax in respect of indivisible works contracts, the argument proceeds, it cannot indirectly confer on a sales-tax authority power to impose a tax on such a transaction and impose a bar against the maintainability of a suit to question its validity. This certainly raises an important question: but, in the view we have expressed on the construction of S. 18-A of the Act, this does not fall for our decision in the presentCity Civil Court Judge held that the suit was governed by Art. 62 of the Limitation Act and, on that basis, declared that the suit for the recovery of the amounts that were paid prior to three years from the date of the suit was barred by limitation. But the High Court, in the view it had taken on the question of the maintainability of the suit, did not express any opinion on the said question.Learned counsel for the appellants contends that the suit was for the recovery of the amounts paid to the respondent under a mistake of law and that such a suit is governed by Art. 96 of the Limitation Act. This court in State of Kerala v. Aluminium Industries Ltd., Kundara, Quilon, Civil Appeal No. 720 of 1963 dated 21-4-1965 (SC) accepted that contention and held that to such a suit Art. 96 of the Limitation Act would apply. Article 96 of the Limitation Act prescribes a period of limitation of 3 years for relief on the ground of mistake when the mistake became known to the plaintiff. When did the plaintiffs come to know of the mistake in the present case? In the plant it is alleged that the plaintiffs came to know of the mistake when the decision in Gannon Dunkerleys case, 1954-5 STC 216 : (AIR 1954 Mad 1130 ) was pronounced by the High Court of Madras on April 5, 1954.The respondent in the writtenstatement did not deny that fact. The suit was filed on March 23, 1955 which was within 3 years from the date of the said knowledge and, therefore, it was clearly within time under Art. 96 of the Limitation Act.In the result, the appeal is allowed. There will be a decree in favour of the plaintiffs as prayed for with costs throughout.The definition of "sale" in the Act cannot be read divorced from the scheme of the Act. and the restrictions upon the power of the Legislature which enacted it. There are diverse provisions in the Act which restrict the power of the taxing authorities to levy tax on sale or purchase of goods. For instance, S. 4 expressly enacts that the provisions of the Act shall not apply to the sale of electrical energy motor spirit and manufactured tabacco and of any other goods on which duty is or may be levied under the Madras Abkari Act, 1886, the Madras Prohibition Act, 1937, or the Opium Act 1878. Exemption is also granted in certain cases by S. 5 of the Act and authority is conferred by the Act upon the executive Government to make exemptions from or reductions in rates in respect of tax payable on the sale of any specified classes of goods or by any specified classes of persons in regard to the whole or any part of their turnover. These restrictions upon the power of the taxing authorities are imposed expressly by the statute itself, the other restrictions to which we have already referred, are restrictions which are implied by the constitutional limitations. But on that account there is no real difference between the quality of the restrictions. The definition clause and the charging section operate only on sales which may appropriately be called sales of goods under the general law of goods which are not exempted by the Act and are not taken out of the taxing power of the State by the constitutional or other provisions. Apparently wide words of the definition clause and the charging section will not on account of these restrictions be rendered ultra vires or invalid; the words will be construed so as to confer power upon the taxing authorities in assessing tax only within the limited field. | 1 | 22,382 | 1,237 | ### Instruction:
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Ayyar, J., in the second case are in the nature of dicta; and in the third case the Madras High Court expressed the view that the bar created by S. 67 of the Income-tax Act did not prevent a High Court in a petition under Art. 226 of the Constitution from investigating the validity of a complaint that the fundamental rights of the applicant were infringed by the action of a taxing authority. In proceedings from assessment of tax, the applicant raised no question of vires of S. 3 of the Income-tax Act, and a reference under S. 66 of the Act was answered by the High Court. Thereafter in a petition under Art. 226 of the Constitution he challenged the validity of the assessment on the ground that the discretion given to the Income-tax Department to assess members of an association separately or collectively as an association infringed the guarantee of equal protection of laws. The High Court of Madras in considering the plea that there was a bar of res judicata observed that the Income-tax Tribunal was incompetent to entertain a plea about the vires of the statute under which it functioned. But beyond observing at p. 151. "We wish to make it very clear that it is not the provision (within the province?) of the department or even the statutory Tribunal, which is really the creation of the status (statute?) to entertain any objection to a piece of legislation, as being ultra vires or unconstitutional * *", nothing else was stated.66. It was submitted that this Court in 1951 SCR 1 : (AIR 1951 SC 23 ) has refused to accept Raleigh Investment Companys case 74 Ind App 50 : (AIR 1947 PC 78 ) as correctly decided. In the State of Tripuras case, 1951 SCR 1 : (AIR 1951 SC 23 ) the Income-tax Officer, Dacca served a notice upon the Manager of an Estate belonging to the Tripura State but situated in Bengal, calling upon the latter to furnish a return of the agricultural income under the Bengal Agricultural Income-tax Act, 1944. The State by its Ruler sued the Province of Bengal and the Income-tax Officer in the Court of the Subordinate Judge of Dacca for a declaration that the Act. in so far as it purported to impose liability to pay agricultural income-tax on the plaintiff was ultra vires and void, and for a perpetual injunction restraining the defendants from taking any steps to assess the plaintiff. After the partition of India the suit was tried by the Subordinate Judge, Alipore, in the State of West Bengal. The High Court of Calcutta held that the Court of Alipore had no jurisdiction to proceed with the suit. This Court in appeal held that the suit did lie in the Court of the Subordinate Judge, Alipore, and that a suit for injunction being not one to set aside or modify any assessment made under the Act, S. 65 of the Bengal Agricultural Income-tax Act, 1944 did not bar the suit, which was one in respect of an actionable wrong. Patanjali Sastri, J., delivering the majority judgment of this Court observed at p. 14 (of SCR) : (at p. 28 of AIR) :" * * * that the suit in question is not a suit to set aside or modify an assessment made under the Act, as no assessment had yet been made when it was instituted, and the subsequent completion of the assessment was made by the Pakistan Income-tax Authorities on terms agreed to between the parties and sanctioned by the Court." * *The gist of the wrongful act complained of in the present case is subjecting the plaintiff to the harassment and trouble by commencing against him an illegal and unauthorised assessment proceeding which may eventually result in an unlawful imposition and levy of tax."Mukherjea, J., who delivered a supplementary judgment agreed with Patanjali Sastri J. It is expressly recorded in the judgment that the correctness of the decision in Releigh Investment Companys case, 74 Ind App 50 : (AIR 1947 PC 78 ) was not challenged before the Court. Fazl Ali J., took a different view relying upon the principle of Releigh Investment Companys case, 74 Ind App 50 : (AIR 1947 PC 78 ), observing that it could not have been the intention of the Legislature that though the officer is not liable to be restrained from proceeding with an assessment, the provision which ensures such a result may be rendered nugatory by permitting an injunction to be claimed against the Provincial Government or the State. The question whether a suit to obtain refund of tax based on a provision of a statute alleged to be ultra vires was maintainable did not fall to be determined in the State of Tripuras case 1951 SCR 1 : (AIR 1951 SC 23 ) and was not decided.67. In our view, the authority of the taxing officer is derived from the investment of power under the Act which he is authorized to administer. If there is no defect in the enactment of a taxing statute, in so far as it authorises the constitution of a Tribunal, the Tribunal invested with authority in the matter of assessment and collection of tax, would in our judgment have power to entertain an objection and to decide whether a provision of the Act which it is called upon to administer is ultra vires and hence unenforceable.68. The Deputy Commercial Tax Officer had therefore power to assess the transaction of sale in works contract. Assuming that he erred in the interpretation of the contract or the relevant statutory provision, the order was on that account not without jurisdiction. It could only be set aside by appropriate proceedings under the Madras General Sales Tax Act, 1939, and not otherwise. The suit was therefore barred by the scheme of the Act and S. 18-A which was later incorporated by Act 6 of 1951.69. This appeal must therefore fail and is dismissed with costs.ORDER70.
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the said question, namely, whether a suit would lie when an assessment was made on the basis of a provision which was ultra vires the Constitution, was left open and indeed in one of the decisions clear observations were made questioning the correctness of the decision of the Privy Council in so far as it held that a suit would not be maintainable even in such a case. The question left open directly calls for a decision in this appeal.The legal position that emerges from the discussion may be summarized thus : If a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a civil court in that regard. But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof whereunder if functions. It must act under the Act and not outside it. If it acts on the basis of a provision of the statute, which is ultra vires to that extent it wold be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act would certainly lie in a civil court.On the said legal basis it follows that in the instant case the sales-tax authorities have acted outside the Act and not under it in making an assessment on the basis of the relevant part of the charging section which was declared to be ultra vires by thisthe State Legislature has no legislative power to impose a tax in respect of indivisible works contracts, the argument proceeds, it cannot indirectly confer on a sales-tax authority power to impose a tax on such a transaction and impose a bar against the maintainability of a suit to question its validity. This certainly raises an important question: but, in the view we have expressed on the construction of S. 18-A of the Act, this does not fall for our decision in the presentCity Civil Court Judge held that the suit was governed by Art. 62 of the Limitation Act and, on that basis, declared that the suit for the recovery of the amounts that were paid prior to three years from the date of the suit was barred by limitation. But the High Court, in the view it had taken on the question of the maintainability of the suit, did not express any opinion on the said question.Learned counsel for the appellants contends that the suit was for the recovery of the amounts paid to the respondent under a mistake of law and that such a suit is governed by Art. 96 of the Limitation Act. This court in State of Kerala v. Aluminium Industries Ltd., Kundara, Quilon, Civil Appeal No. 720 of 1963 dated 21-4-1965 (SC) accepted that contention and held that to such a suit Art. 96 of the Limitation Act would apply. Article 96 of the Limitation Act prescribes a period of limitation of 3 years for relief on the ground of mistake when the mistake became known to the plaintiff. When did the plaintiffs come to know of the mistake in the present case? In the plant it is alleged that the plaintiffs came to know of the mistake when the decision in Gannon Dunkerleys case, 1954-5 STC 216 : (AIR 1954 Mad 1130 ) was pronounced by the High Court of Madras on April 5, 1954.The respondent in the writtenstatement did not deny that fact. The suit was filed on March 23, 1955 which was within 3 years from the date of the said knowledge and, therefore, it was clearly within time under Art. 96 of the Limitation Act.In the result, the appeal is allowed. There will be a decree in favour of the plaintiffs as prayed for with costs throughout.The definition of "sale" in the Act cannot be read divorced from the scheme of the Act. and the restrictions upon the power of the Legislature which enacted it. There are diverse provisions in the Act which restrict the power of the taxing authorities to levy tax on sale or purchase of goods. For instance, S. 4 expressly enacts that the provisions of the Act shall not apply to the sale of electrical energy motor spirit and manufactured tabacco and of any other goods on which duty is or may be levied under the Madras Abkari Act, 1886, the Madras Prohibition Act, 1937, or the Opium Act 1878. Exemption is also granted in certain cases by S. 5 of the Act and authority is conferred by the Act upon the executive Government to make exemptions from or reductions in rates in respect of tax payable on the sale of any specified classes of goods or by any specified classes of persons in regard to the whole or any part of their turnover. These restrictions upon the power of the taxing authorities are imposed expressly by the statute itself, the other restrictions to which we have already referred, are restrictions which are implied by the constitutional limitations. But on that account there is no real difference between the quality of the restrictions. The definition clause and the charging section operate only on sales which may appropriately be called sales of goods under the general law of goods which are not exempted by the Act and are not taken out of the taxing power of the State by the constitutional or other provisions. Apparently wide words of the definition clause and the charging section will not on account of these restrictions be rendered ultra vires or invalid; the words will be construed so as to confer power upon the taxing authorities in assessing tax only within the limited field.
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Bayyana Bhimayya Vs. The Government Of Andhra Pradesh | they issued delivery orders to third parties, with whom they had entered into separate transactions. The procedure followed by the appellants was this : They first entered into contracts with the Mills agreeing to purchase gunnies at a certain rate for future delivery. Exhibit A-1 is a specimen of such contracts. The appellants also entered into agreements with the Mills, by which the Mills agreed to deliver the goods to third parties if requested by the appellants. The Mills, however, did not accept the third parties as contracting parties but only as agents of the appellants. Exhibits A-2 and A-2(a) are specimen agreements of this kind. Before the date of delivery, the appellants entered into agreements with third parties, by which they charged something extra from the third parties and handed over to them the delivery orders, which were known as kutcha delivery orders. Exhibits A-3 and A-4 are specimens of the agreement and the delivery orders respectively. The Mills used to deliver the goods against the kutcha delivery orders along with an invoice and a bill, of which Exs. A-6 and A-7 are specimens respectively, and collected the sales tax from the third parties. The tax authorities, however, treated the transaction between the appellants and third parties as a fresh sale, and sought to levy sales tax on it again, which, the appellants, contended, was not demandable, as there was no second sale.3. The appellants failed in their contentions before the Deputy Commercial Tax Officer, Guntur, and their appeals to the Deputy Commissioner of Commercial Taxes, Guntur and the Andhra Sales Tax Appellate Tribunal, Guntur, were unsuccessful. The appellants then went up in revision to the High Court under the Madras General Sales Tax Act, 1939 (as amended by Madras Act No. 6 of 1951), but were again unsuccessful. The High Court, however, granted certificates, on which these appeals have been filed.4. The contentions of the appellants are that the agreement and the delivery of the kutcha delivery order did not amount to a sale of goods, but was only an assignment of a right to obtain delivery of the gunnies, which were not in existence at the time of the transaction with third parties, and were not appropriated to the contract, or, in the alternative, that this was only an assignment of a forward contract. They seem to have relied in the High Court upon the decisions of this Court reported in Sales Tax Officer, Pilibhit v. Messrs. Budh Prakash Jai Prakash, 1955-1 SCR 243 : (AIR 1954 SC 459 ) and Poppatlal Shah v. State of Madras, 1953 SCR 677 : (AIR 1953 SC 274 ) to show that these transactions were not sales. These cases were not relied upon by the appellants before us, presumably because the High Court has adequately shown their inapplicability to the facts here.5. The learned Solicitor-General appearing for the appellants rested his case entirely upon the first contention, namely, that there was only as assignment of a right to obtain delivery of the gunnies and not a sale. He contended that there was only one transaction of sale between the Mills and the third parties, who, on the strength of the assignment of the right to take delivery, had received the goods from the Mills. In our opinion, this does not represent the true nature of the transactions, either in fact, or in law.6. To begin with, the Mills had made clear in their agreements that they were not recognising the third parties as contracting parties having privity with them, and that delivery would be given against the kutcha delivery orders to the third parties as agents of the appellants. The Mills, therefore, recognised only the appellants as contracting parties, and there was thus a sale to the appellants from the Mills, on which sales tax was correctly demanded and was paid. In so far as the third parties were concerned, they had purchased the goods by payment of an extra price, and the transaction must, in law and in fact, be considered a fresh transaction of sale between the appellants and the third parties. A delivery order is a document of title to goods (vide S. 2(4) of the Sale of Goods Act), and the possessor of such a document has the right not only to receive the goods but also to transfer it to another by endorsement or delivery. At the moment of delivery by the Mills to the third parties, there were, in effect, two deliveries, one by the Mills to the Appellants, represented, in so far as the Mills were concerned, by the appellants agents, the third parties, and the other, by the appellants to the third parties as buyers from the appellants. These two deliveries might synchronise in point of time, but were separate, in point of fact and in the eye of law. If a dispute arose as to the goods delivered under the kutcha delivery order to the third parties against the Mills, action could lie at the instance of the appellants. The third parties could proceed on breach of contract only against the appellants and not against the Mills. In our opinion, there being two separate transactions of sale, tax was payable at both the points, as has been correctly pointed out by the tax authorities and the High Court.7. The appellants relied upon a decision of the Andhra Pradesh High Court in State of Andhra v. Sreeramamurty, Second Appeals Nos.. 194 and 195 of 1954, D/- 27-6-1957 :(AIR 1959 Andh Pra 21) but there, the facts were different, and the Division Bench itself in dealing with the case, distinguished the judgment under appeal, observing that there was no scope for the application of the principles laid down in the judgment under appeal, because in the cited case, "the property in the goods did not pass from the Mills to the assessee and there was no agreement of sale of goods to be obtained in future between the assessee and the third party". | 0[ds]6. To begin with, the Mills had made clear in their agreements that they were not recognising the third parties as contracting parties having privity with them, and that delivery would be given against the kutcha delivery orders to the third parties as agents of the appellants. The Mills, therefore, recognised only the appellants as contracting parties, and there was thus a sale to the appellants from the Mills, on which sales tax was correctly demanded and was paid. In so far as the third parties were concerned, they had purchased the goods by payment of an extra price, and the transaction must, in law and in fact, be considered a fresh transaction of sale between the appellants and the third parties. A delivery order is a document of title to goods (vide S. 2(4) of the Sale of Goods Act), and the possessor of such a document has the right not only to receive the goods but also to transfer it to another by endorsement or delivery. At the moment of delivery by the Mills to the third parties, there were, in effect, two deliveries, one by the Mills to the Appellants, represented, in so far as the Mills were concerned, by the appellants agents, the third parties, and the other, by the appellants to the third parties as buyers from the appellants. These two deliveries might synchronise in point of time, but were separate, in point of fact and in the eye of law. If a dispute arose as to the goods delivered under the kutcha delivery order to the third parties against the Mills, action could lie at the instance of the appellants. The third parties could proceed on breach of contract only against the appellants and not against the Mills. In our opinion, there being two separate transactions of sale, tax was payable at both the points, as has been correctly pointed out by the tax authorities and the High Court. | 0 | 1,207 | 371 | ### Instruction:
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they issued delivery orders to third parties, with whom they had entered into separate transactions. The procedure followed by the appellants was this : They first entered into contracts with the Mills agreeing to purchase gunnies at a certain rate for future delivery. Exhibit A-1 is a specimen of such contracts. The appellants also entered into agreements with the Mills, by which the Mills agreed to deliver the goods to third parties if requested by the appellants. The Mills, however, did not accept the third parties as contracting parties but only as agents of the appellants. Exhibits A-2 and A-2(a) are specimen agreements of this kind. Before the date of delivery, the appellants entered into agreements with third parties, by which they charged something extra from the third parties and handed over to them the delivery orders, which were known as kutcha delivery orders. Exhibits A-3 and A-4 are specimens of the agreement and the delivery orders respectively. The Mills used to deliver the goods against the kutcha delivery orders along with an invoice and a bill, of which Exs. A-6 and A-7 are specimens respectively, and collected the sales tax from the third parties. The tax authorities, however, treated the transaction between the appellants and third parties as a fresh sale, and sought to levy sales tax on it again, which, the appellants, contended, was not demandable, as there was no second sale.3. The appellants failed in their contentions before the Deputy Commercial Tax Officer, Guntur, and their appeals to the Deputy Commissioner of Commercial Taxes, Guntur and the Andhra Sales Tax Appellate Tribunal, Guntur, were unsuccessful. The appellants then went up in revision to the High Court under the Madras General Sales Tax Act, 1939 (as amended by Madras Act No. 6 of 1951), but were again unsuccessful. The High Court, however, granted certificates, on which these appeals have been filed.4. The contentions of the appellants are that the agreement and the delivery of the kutcha delivery order did not amount to a sale of goods, but was only an assignment of a right to obtain delivery of the gunnies, which were not in existence at the time of the transaction with third parties, and were not appropriated to the contract, or, in the alternative, that this was only an assignment of a forward contract. They seem to have relied in the High Court upon the decisions of this Court reported in Sales Tax Officer, Pilibhit v. Messrs. Budh Prakash Jai Prakash, 1955-1 SCR 243 : (AIR 1954 SC 459 ) and Poppatlal Shah v. State of Madras, 1953 SCR 677 : (AIR 1953 SC 274 ) to show that these transactions were not sales. These cases were not relied upon by the appellants before us, presumably because the High Court has adequately shown their inapplicability to the facts here.5. The learned Solicitor-General appearing for the appellants rested his case entirely upon the first contention, namely, that there was only as assignment of a right to obtain delivery of the gunnies and not a sale. He contended that there was only one transaction of sale between the Mills and the third parties, who, on the strength of the assignment of the right to take delivery, had received the goods from the Mills. In our opinion, this does not represent the true nature of the transactions, either in fact, or in law.6. To begin with, the Mills had made clear in their agreements that they were not recognising the third parties as contracting parties having privity with them, and that delivery would be given against the kutcha delivery orders to the third parties as agents of the appellants. The Mills, therefore, recognised only the appellants as contracting parties, and there was thus a sale to the appellants from the Mills, on which sales tax was correctly demanded and was paid. In so far as the third parties were concerned, they had purchased the goods by payment of an extra price, and the transaction must, in law and in fact, be considered a fresh transaction of sale between the appellants and the third parties. A delivery order is a document of title to goods (vide S. 2(4) of the Sale of Goods Act), and the possessor of such a document has the right not only to receive the goods but also to transfer it to another by endorsement or delivery. At the moment of delivery by the Mills to the third parties, there were, in effect, two deliveries, one by the Mills to the Appellants, represented, in so far as the Mills were concerned, by the appellants agents, the third parties, and the other, by the appellants to the third parties as buyers from the appellants. These two deliveries might synchronise in point of time, but were separate, in point of fact and in the eye of law. If a dispute arose as to the goods delivered under the kutcha delivery order to the third parties against the Mills, action could lie at the instance of the appellants. The third parties could proceed on breach of contract only against the appellants and not against the Mills. In our opinion, there being two separate transactions of sale, tax was payable at both the points, as has been correctly pointed out by the tax authorities and the High Court.7. The appellants relied upon a decision of the Andhra Pradesh High Court in State of Andhra v. Sreeramamurty, Second Appeals Nos.. 194 and 195 of 1954, D/- 27-6-1957 :(AIR 1959 Andh Pra 21) but there, the facts were different, and the Division Bench itself in dealing with the case, distinguished the judgment under appeal, observing that there was no scope for the application of the principles laid down in the judgment under appeal, because in the cited case, "the property in the goods did not pass from the Mills to the assessee and there was no agreement of sale of goods to be obtained in future between the assessee and the third party".
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6. To begin with, the Mills had made clear in their agreements that they were not recognising the third parties as contracting parties having privity with them, and that delivery would be given against the kutcha delivery orders to the third parties as agents of the appellants. The Mills, therefore, recognised only the appellants as contracting parties, and there was thus a sale to the appellants from the Mills, on which sales tax was correctly demanded and was paid. In so far as the third parties were concerned, they had purchased the goods by payment of an extra price, and the transaction must, in law and in fact, be considered a fresh transaction of sale between the appellants and the third parties. A delivery order is a document of title to goods (vide S. 2(4) of the Sale of Goods Act), and the possessor of such a document has the right not only to receive the goods but also to transfer it to another by endorsement or delivery. At the moment of delivery by the Mills to the third parties, there were, in effect, two deliveries, one by the Mills to the Appellants, represented, in so far as the Mills were concerned, by the appellants agents, the third parties, and the other, by the appellants to the third parties as buyers from the appellants. These two deliveries might synchronise in point of time, but were separate, in point of fact and in the eye of law. If a dispute arose as to the goods delivered under the kutcha delivery order to the third parties against the Mills, action could lie at the instance of the appellants. The third parties could proceed on breach of contract only against the appellants and not against the Mills. In our opinion, there being two separate transactions of sale, tax was payable at both the points, as has been correctly pointed out by the tax authorities and the High Court.
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U.P.Rajkiya Nirman Nigam Vs. Indure Pvt.Ltd. | the construction thereof. We, therefore hold that the arbitrators cannot clothe themselves with jurisdiction to decide conclusively the arbitrability of the dispute. It is for the Court under Section 33 or on appeal thereon to decide it finally. The appellant, therefore, is not estopped to challenge the action and to seek a declaration under Section 33. 15. The clear settled law thus is that the existence or validity of an arbitration agreement shall be decided by the Court alone. Arbitrators, therefore, have no power or jurisdiction to decide or adjudicate conclusively by themselves the question since it is the very foundation on which the arbitrators proceed to adjudicate the disputes. Therefore, it is rightly pointed out by Shri Adarsh Kumar Goel, learned counsel for the appellant that they had by mistake agreed for reference and that arbitrators could not decide the existence of the arbitration agreement or arbitrability of the disputes without prejudice to their stand that no valid agreement existed. Shri Nariman contended that having agreed to refer the dispute, the appellant had acquiesced to the jurisdiction of the arbitrators and, therefore, they cannot exercise the right under Section 33 of the Act. We find no force in the contention. As seen, the appellant is claiming adjudication under Section 33 which the Court alone has jurisdiction and power to decide whether any valid agreement is existing between the parties. Mere acceptance or acquiescing to the jurisdiction of the arbitrators for adjudication of the disputes as to the existence of the arbitration agreement or arbitrability of the dispute does not disentitle the appellant to have the remedy under Section 33 through the Court. In our considered view the remedy under Section 33 is the only right royal way for deciding the controversy.16. Since the tenders- the source of the contract between the parties-had not transformed into a contract, even if the proposal and counter-proposal are assumed to be constituting an agreement, it is a contingent contract and by operation of Section 32 of the Contract Act, the counter-proposal of the respondent cannot be enforced since the event of entering into the contract with the Board had not taken place. 17. In Ramji Dayawala & Sons (P) Ltd. v. Invest Import, AIR 1981 SC 2085 , a two-Judge Bench of this Court considered the existence of the contract and arbitration clause thereunder. This Court had held that in the facts of a given case acceptance of a suggestion may be sub silentio reinforced by the subsequent conduct. Where there is mistake as to terms of a document, amendment to the draft was suggested and a counter-offer was made, the signatory to the original contract is not estopped by his signature from denying that he intended to make an offer in the terms set out in the document. Where the contracts is in a number of parts it is essential to the validity of the contract that the contracting party should either have assented to or taken to have assented to the same thing in the same sense or as it is sometimes put, there should be consensus ad idem. In that case a sub-contract was signed and executed by the Managing Director of the appellant-Company but part of the contract was altered subsequently since counter-proposal was given by the respondent. This Court had held that one such case is where a part of the offer was disputed at the negotiation stage and the original offered communicated that fact to the offeror saying that he understood the offer in a particular sense; this communication probably amounts to a counter-offer in which case it may be that mere silence of the original offeror will constitute his acceptance. Where there is a mistake as to the terms of the documents as in that case, amendment to the draft was suggested and a counter-offer was made, the signatory to the original contract is not estopped by his signature from denying that he intended to make an offer in the terms set out in the document; to wit, the letter and the cable. It can, therefore, be stated that where the contract is in a number of parts it is essential to the validity of the contract that the contracting party should either have assented to or taken to have assented to the same thing in the same sense or as it is sometimes put, there should be consensus ad idem. It was held that there was no consensus ad idem to the original contract. It was open to the party contending novatio to prove that he had not accepted a part of the original agreement though it had signed the agreement containing that part. 18. As found earlier, there is no signed agreement by a duly competent officer on behalf of the appellant. The doctrine of "indoor management" cannot be extended to formation of the contract or essential terms of the contract unless the contract with other parties is duly approved and signed on behalf of a public undertaking or the Government with its seal by an authorised or competent officer. Otherwise, it would be hazardous for public undertakings or Government or its instrumentalities to deal on contractual relations with third parties.19. In view of the fact that Section 2(a) of the Act envisages a written agreement for arbitration and that written agreement to submit the existing or future differences to arbitration is a pre-condition and further in view of the fact that the original contract itself was not a concluded contract, there existed no arbitration agreement for reference to the arbitrators. The High Court, therefore, committed a gross error of law in concluding that an agreement had emerged between the parties, from the correspondence and from submission of the tenders to the Board. Accordingly it is declared that there existed no arbitration agreement and that the reference to the arbitration, therefore, is clearly illegal. Consequently arbitrators cannot proceed further to arbiter the dispute, if any. The conclusion of the High Court is set aside. | 1[ds]It is seen that the tenders were not jointly signed by the appellant and the respondent but where unilaterally submitted to the Board by the appellant and were later on a withdrawn. There did not exist any concluded contract between the Board and the appellant for the performance of the work as per terms and conditions of the tenders floated by the Board. Under Section 32 it was a contingent contract until it was accepted by the Board. In this Background, the question emerges :there is an arbitration agreement between the parties ?It is seen that Clause (14) of the agreement (subject to the dispute whether it is arbitrable under Clause (14) which is yet another issue with which we are not concerned independently does not come into existence unless there is a concluded contract pursuant to the proposal made by the appellant on June 22, 1984 or a counter-proposal by the respondent dated June 26, 1984. It is not the case of the respondent that there exist any such independent arbitrationis no dispute to the proposition of law but two factors have to be kept in mind. viz. when the counter-offer was made by the respondent and whether the unilateral offer amounts to acceptance by submitting the tenders by the appellant to the Board. We find that it does not amount to acceptance of counter proposal. It is seen that admittedly, Clause (10) which thrusts responsibility on the first respondent was deleted in the counter-proposal. In Clause 12, for joint responsibility unilateral liability was incorporated. In other words the respondent disowned its material responsibilities. Unless there is acceptance by the appellant to those conditions no concluded contract can be said to have emerged. It is seen that the appellant is a Government Undertaking and unless contract is duly executed in accordance with the Articles of Association, the appellant is not bound by any such contract. Shri Nariman sought to rely on the passage from Palmer on Companies Law containing that it is an indoor management between the appellant and its officers. When the negotiations were undertaken on behalf of the appellant, the respondent was led to believe that the officer was competent to enter into the contract on behalf of the appellant. When the counter-proposal was sent, the appellant had not returned the proposal. Therefore, it amounts to acceptance and thus concluded contract came into existence. We fail to appreciate the contention. As seen, the material alteration in the contract make world of difference to draw an inference of concluded contract. The joint liability of the parties was made unilateral liability of the appellant. Thereby, the respondent sought to absolve itself from the liability of further performance of the contract with the Board. Similarly, Clause (10) which contains material part of the terms for the performance of the contract with the Board was deleted. Thereby there is no consensus ad idem on the material terms of the contract which contains several clauses. In the absence of any consensus ad idem on the material terms of the contract to be entered into between the parties, there emerged no concluded contract. Apart from the draft agreement and the counter-proposal there is no independent contract for reference to arbitration. Clause (14) which is an integral part of the draft agreement proposed by the appellant and the counter-proposal is the foundation for reference to the arbitration.We find no force in the contention of Shri Nariman that the appellant had submitted to the jurisdiction of the arbitrators and having nominated the arbitrator, they are estopped to go back upon it. Acquiescence does not confer jurisdiction.The clear settled law thus is that the existence or validity of an arbitration agreement shall be decided by the Court alone. Arbitrators, therefore, have no power or jurisdiction to decide or adjudicate conclusively by themselves the question since it is the very foundation on which the arbitrators proceed to adjudicate the disputes. Therefore, it is rightly pointed out by Shri Adarsh Kumar Goel, learned counsel for the appellant that they had by mistake agreed for reference and that arbitrators could not decide the existence of the arbitration agreement or arbitrability of the disputes without prejudice to their stand that no valid agreement existed. Shri Nariman contended that having agreed to refer the dispute, the appellant had acquiesced to the jurisdiction of the arbitrators and, therefore, they cannot exercise the right under Section 33 of the Act. We find no force in the contention. As seen, the appellant is claiming adjudication under Section 33 which the Court alone has jurisdiction and power to decide whether any valid agreement is existing between the parties. Mere acceptance or acquiescing to the jurisdiction of the arbitrators for adjudication of the disputes as to the existence of the arbitration agreement or arbitrability of the dispute does not disentitle the appellant to have the remedy under Section 33 through the Court. In our considered view the remedy under Section 33 is the only right royal way for deciding the controversy.16. Since the tenders- the source of the contract between the parties-had not transformed into a contract, even if the proposal and counter-proposal are assumed to be constituting an agreement, it is a contingent contract and by operation of Section 32 of the Contract Act, the counter-proposal of the respondent cannot be enforced since the event of entering into the contract with the Board had not taken place.As found earlier, there is no signed agreement by a duly competent officer on behalf of the appellant. The doctrine of "indoor management" cannot be extended to formation of the contract or essential terms of the contract unless the contract with other parties is duly approved and signed on behalf of a public undertaking or the Government with its seal by an authorised or competent officer. Otherwise, it would be hazardous for public undertakings or Government or its instrumentalities to deal on contractual relations with third parties.19. In view of the fact that Section 2(a) of the Act envisages a written agreement for arbitration and that written agreement to submit the existing or future differences to arbitration is a pre-condition and further in view of the fact that the original contract itself was not a concluded contract, there existed no arbitration agreement for reference to the arbitrators. The High Court, therefore, committed a gross error of law in concluding that an agreement had emerged between the parties, from the correspondence and from submission of the tenders to the Board. Accordingly it is declared that there existed no arbitration agreement and that the reference to the arbitration, therefore, is clearly illegal. Consequently arbitrators cannot proceed further to arbiter the dispute, if any. The conclusion of the High Court is set aside. | 1 | 4,286 | 1,223 | ### 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 construction thereof. We, therefore hold that the arbitrators cannot clothe themselves with jurisdiction to decide conclusively the arbitrability of the dispute. It is for the Court under Section 33 or on appeal thereon to decide it finally. The appellant, therefore, is not estopped to challenge the action and to seek a declaration under Section 33. 15. The clear settled law thus is that the existence or validity of an arbitration agreement shall be decided by the Court alone. Arbitrators, therefore, have no power or jurisdiction to decide or adjudicate conclusively by themselves the question since it is the very foundation on which the arbitrators proceed to adjudicate the disputes. Therefore, it is rightly pointed out by Shri Adarsh Kumar Goel, learned counsel for the appellant that they had by mistake agreed for reference and that arbitrators could not decide the existence of the arbitration agreement or arbitrability of the disputes without prejudice to their stand that no valid agreement existed. Shri Nariman contended that having agreed to refer the dispute, the appellant had acquiesced to the jurisdiction of the arbitrators and, therefore, they cannot exercise the right under Section 33 of the Act. We find no force in the contention. As seen, the appellant is claiming adjudication under Section 33 which the Court alone has jurisdiction and power to decide whether any valid agreement is existing between the parties. Mere acceptance or acquiescing to the jurisdiction of the arbitrators for adjudication of the disputes as to the existence of the arbitration agreement or arbitrability of the dispute does not disentitle the appellant to have the remedy under Section 33 through the Court. In our considered view the remedy under Section 33 is the only right royal way for deciding the controversy.16. Since the tenders- the source of the contract between the parties-had not transformed into a contract, even if the proposal and counter-proposal are assumed to be constituting an agreement, it is a contingent contract and by operation of Section 32 of the Contract Act, the counter-proposal of the respondent cannot be enforced since the event of entering into the contract with the Board had not taken place. 17. In Ramji Dayawala & Sons (P) Ltd. v. Invest Import, AIR 1981 SC 2085 , a two-Judge Bench of this Court considered the existence of the contract and arbitration clause thereunder. This Court had held that in the facts of a given case acceptance of a suggestion may be sub silentio reinforced by the subsequent conduct. Where there is mistake as to terms of a document, amendment to the draft was suggested and a counter-offer was made, the signatory to the original contract is not estopped by his signature from denying that he intended to make an offer in the terms set out in the document. Where the contracts is in a number of parts it is essential to the validity of the contract that the contracting party should either have assented to or taken to have assented to the same thing in the same sense or as it is sometimes put, there should be consensus ad idem. In that case a sub-contract was signed and executed by the Managing Director of the appellant-Company but part of the contract was altered subsequently since counter-proposal was given by the respondent. This Court had held that one such case is where a part of the offer was disputed at the negotiation stage and the original offered communicated that fact to the offeror saying that he understood the offer in a particular sense; this communication probably amounts to a counter-offer in which case it may be that mere silence of the original offeror will constitute his acceptance. Where there is a mistake as to the terms of the documents as in that case, amendment to the draft was suggested and a counter-offer was made, the signatory to the original contract is not estopped by his signature from denying that he intended to make an offer in the terms set out in the document; to wit, the letter and the cable. It can, therefore, be stated that where the contract is in a number of parts it is essential to the validity of the contract that the contracting party should either have assented to or taken to have assented to the same thing in the same sense or as it is sometimes put, there should be consensus ad idem. It was held that there was no consensus ad idem to the original contract. It was open to the party contending novatio to prove that he had not accepted a part of the original agreement though it had signed the agreement containing that part. 18. As found earlier, there is no signed agreement by a duly competent officer on behalf of the appellant. The doctrine of "indoor management" cannot be extended to formation of the contract or essential terms of the contract unless the contract with other parties is duly approved and signed on behalf of a public undertaking or the Government with its seal by an authorised or competent officer. Otherwise, it would be hazardous for public undertakings or Government or its instrumentalities to deal on contractual relations with third parties.19. In view of the fact that Section 2(a) of the Act envisages a written agreement for arbitration and that written agreement to submit the existing or future differences to arbitration is a pre-condition and further in view of the fact that the original contract itself was not a concluded contract, there existed no arbitration agreement for reference to the arbitrators. The High Court, therefore, committed a gross error of law in concluding that an agreement had emerged between the parties, from the correspondence and from submission of the tenders to the Board. Accordingly it is declared that there existed no arbitration agreement and that the reference to the arbitration, therefore, is clearly illegal. Consequently arbitrators cannot proceed further to arbiter the dispute, if any. The conclusion of the High Court is set aside.
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not concerned independently does not come into existence unless there is a concluded contract pursuant to the proposal made by the appellant on June 22, 1984 or a counter-proposal by the respondent dated June 26, 1984. It is not the case of the respondent that there exist any such independent arbitrationis no dispute to the proposition of law but two factors have to be kept in mind. viz. when the counter-offer was made by the respondent and whether the unilateral offer amounts to acceptance by submitting the tenders by the appellant to the Board. We find that it does not amount to acceptance of counter proposal. It is seen that admittedly, Clause (10) which thrusts responsibility on the first respondent was deleted in the counter-proposal. In Clause 12, for joint responsibility unilateral liability was incorporated. In other words the respondent disowned its material responsibilities. Unless there is acceptance by the appellant to those conditions no concluded contract can be said to have emerged. It is seen that the appellant is a Government Undertaking and unless contract is duly executed in accordance with the Articles of Association, the appellant is not bound by any such contract. Shri Nariman sought to rely on the passage from Palmer on Companies Law containing that it is an indoor management between the appellant and its officers. When the negotiations were undertaken on behalf of the appellant, the respondent was led to believe that the officer was competent to enter into the contract on behalf of the appellant. When the counter-proposal was sent, the appellant had not returned the proposal. Therefore, it amounts to acceptance and thus concluded contract came into existence. We fail to appreciate the contention. As seen, the material alteration in the contract make world of difference to draw an inference of concluded contract. The joint liability of the parties was made unilateral liability of the appellant. Thereby, the respondent sought to absolve itself from the liability of further performance of the contract with the Board. Similarly, Clause (10) which contains material part of the terms for the performance of the contract with the Board was deleted. Thereby there is no consensus ad idem on the material terms of the contract which contains several clauses. In the absence of any consensus ad idem on the material terms of the contract to be entered into between the parties, there emerged no concluded contract. Apart from the draft agreement and the counter-proposal there is no independent contract for reference to arbitration. Clause (14) which is an integral part of the draft agreement proposed by the appellant and the counter-proposal is the foundation for reference to the arbitration.We find no force in the contention of Shri Nariman that the appellant had submitted to the jurisdiction of the arbitrators and having nominated the arbitrator, they are estopped to go back upon it. Acquiescence does not confer jurisdiction.The clear settled law thus is that the existence or validity of an arbitration agreement shall be decided by the Court alone. Arbitrators, therefore, have no power or jurisdiction to decide or adjudicate conclusively by themselves the question since it is the very foundation on which the arbitrators proceed to adjudicate the disputes. Therefore, it is rightly pointed out by Shri Adarsh Kumar Goel, learned counsel for the appellant that they had by mistake agreed for reference and that arbitrators could not decide the existence of the arbitration agreement or arbitrability of the disputes without prejudice to their stand that no valid agreement existed. Shri Nariman contended that having agreed to refer the dispute, the appellant had acquiesced to the jurisdiction of the arbitrators and, therefore, they cannot exercise the right under Section 33 of the Act. We find no force in the contention. As seen, the appellant is claiming adjudication under Section 33 which the Court alone has jurisdiction and power to decide whether any valid agreement is existing between the parties. Mere acceptance or acquiescing to the jurisdiction of the arbitrators for adjudication of the disputes as to the existence of the arbitration agreement or arbitrability of the dispute does not disentitle the appellant to have the remedy under Section 33 through the Court. In our considered view the remedy under Section 33 is the only right royal way for deciding the controversy.16. Since the tenders- the source of the contract between the parties-had not transformed into a contract, even if the proposal and counter-proposal are assumed to be constituting an agreement, it is a contingent contract and by operation of Section 32 of the Contract Act, the counter-proposal of the respondent cannot be enforced since the event of entering into the contract with the Board had not taken place.As found earlier, there is no signed agreement by a duly competent officer on behalf of the appellant. The doctrine of "indoor management" cannot be extended to formation of the contract or essential terms of the contract unless the contract with other parties is duly approved and signed on behalf of a public undertaking or the Government with its seal by an authorised or competent officer. Otherwise, it would be hazardous for public undertakings or Government or its instrumentalities to deal on contractual relations with third parties.19. In view of the fact that Section 2(a) of the Act envisages a written agreement for arbitration and that written agreement to submit the existing or future differences to arbitration is a pre-condition and further in view of the fact that the original contract itself was not a concluded contract, there existed no arbitration agreement for reference to the arbitrators. The High Court, therefore, committed a gross error of law in concluding that an agreement had emerged between the parties, from the correspondence and from submission of the tenders to the Board. Accordingly it is declared that there existed no arbitration agreement and that the reference to the arbitration, therefore, is clearly illegal. Consequently arbitrators cannot proceed further to arbiter the dispute, if any. The conclusion of the High Court is set aside.
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Sohan Lal Vs. Union of India | appellant and Jagan Nath.If we were to do so, we would be entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs. These are questions of fact and law which are in dispute requiring determination before the respective claims of the parties to this appeal can be decided.Before the property in dispute can be restored to Jagan Nath it will be necessary to declare that he had title in that property and was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. In the circumstances to be mentioned hereafter, it is a matter for serious consideration whether in proceedings under Art. 226 of the Constitution such a declaration ought to be made and restoration of the property to Jagan Nath be ordered. 6. Jagan Nath had entered into a transaction with the Union of India upto a certain stage with respect to the property in dispute, but no letter of allotment had been issued to him. Indeed, he had been informed, when certain facts became known, that the property in question could not be allotted to him as he was a displaced person who had been allotted land in East Punjab. As between Jagan Nath and the Union of India it will be necessary to decide what rights were acquired by the former in the property upto the stage when the latter informed Jagan Nath that the property would not be allotted to him. Another question for decision will be whether Jagan Nath was allowed to enter into possession of the property because it was allotted to him or under a misapprehension as the Union of India was misled by the contents of his application. The case of the Union of India is that under the scheme Jagan Nath was not eligible for allotment of a house in West Patel Nagar, as it was subsequently discovered that he had been allotted, previous to his application, agricultural land in the District of Hissar. Being satisfied that Jagan Nath was not eligible for allotment, the Union of India refused to allot to him the tenement No. 35, West Patel Nagar and allotment of that house was made to the appellant who was found to be eligible in every way. The appellant was accordingly given possession of the property after Jagan Naths eviction. The appellant had complied with all the conditions imposed by the Union of India and a letter of allotment was actually issued to him and he entered into possession of the property in dispute under the authority of the Union of India. Did the appellant thereby acquire a legal right to hold the property as against Jagan Nath? In our opinion, all these questions should be decided in a properly constituted suit in a Civil Court rather than in proceedings under Art. 226 of the Constitution. 7. The eviction of Jagan Nath was in contravention of the express provisions of S. 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence, and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing specified in the order, which appertains to his office and is in the nature of a public duty (Halsburys Laws of England Vol. 11, Lord Simonds Edition, p. 84).If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath on his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court. We have not been able to find a direct authority to cover a case like the one before us but it would appear that so far as election to an office is concerned, a mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact, full proceedings must be taken by way of injunction or election petition to oust the party in possession and that a mandamus will go only on the supposition that there is nobody holding office in question. In R. v. Chester Corporation 1855-25 LJQB 61(E), it was held that it was inflexible rule of law that where a person has been de facto elected to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information. A mandamus will not lie unless the election can be shown to be merely colourable.We cannot see why in principle there should be a distinction made between such a case and the case of a person, who has, apparently entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom. 8. In our opinion, the High Court erred in allowing the application of Jagan Nath filed under Art. 226 of the Constitution and making the order it did. | 1[ds]7. The eviction of Jagan Nath was in contravention of the express provisions of S. 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence, and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing specified in the order, which appertains to his office and is in the nature of a public duty (Halsburys Laws of England Vol. 11, Lord Simonds Edition, p. 84).If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath on his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court. We have not been able to find a direct authority to cover a case like the one before us but it would appear that so far as election to an office is concerned, a mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact, full proceedings must be taken by way of injunction or election petition to oust the party in possession and that a mandamus will go only on the supposition that there is nobody holding office in question. InR. v. Chester Corporation 1855-25 LJQB, it was held that it was inflexible rule of law that where a person has been de facto elected to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information. A mandamus will not lie unless the election can be shown to be merely colourable.We cannot see why in principle there should be a distinction made between such a case and the case of a person, who has, apparently entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom8. In our opinion, the High Court erred in allowing the application of Jagan Nath filed under Art. 226 of the Constitution and making the order it did. | 1 | 2,467 | 548 | ### 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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appellant and Jagan Nath.If we were to do so, we would be entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs. These are questions of fact and law which are in dispute requiring determination before the respective claims of the parties to this appeal can be decided.Before the property in dispute can be restored to Jagan Nath it will be necessary to declare that he had title in that property and was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. In the circumstances to be mentioned hereafter, it is a matter for serious consideration whether in proceedings under Art. 226 of the Constitution such a declaration ought to be made and restoration of the property to Jagan Nath be ordered. 6. Jagan Nath had entered into a transaction with the Union of India upto a certain stage with respect to the property in dispute, but no letter of allotment had been issued to him. Indeed, he had been informed, when certain facts became known, that the property in question could not be allotted to him as he was a displaced person who had been allotted land in East Punjab. As between Jagan Nath and the Union of India it will be necessary to decide what rights were acquired by the former in the property upto the stage when the latter informed Jagan Nath that the property would not be allotted to him. Another question for decision will be whether Jagan Nath was allowed to enter into possession of the property because it was allotted to him or under a misapprehension as the Union of India was misled by the contents of his application. The case of the Union of India is that under the scheme Jagan Nath was not eligible for allotment of a house in West Patel Nagar, as it was subsequently discovered that he had been allotted, previous to his application, agricultural land in the District of Hissar. Being satisfied that Jagan Nath was not eligible for allotment, the Union of India refused to allot to him the tenement No. 35, West Patel Nagar and allotment of that house was made to the appellant who was found to be eligible in every way. The appellant was accordingly given possession of the property after Jagan Naths eviction. The appellant had complied with all the conditions imposed by the Union of India and a letter of allotment was actually issued to him and he entered into possession of the property in dispute under the authority of the Union of India. Did the appellant thereby acquire a legal right to hold the property as against Jagan Nath? In our opinion, all these questions should be decided in a properly constituted suit in a Civil Court rather than in proceedings under Art. 226 of the Constitution. 7. The eviction of Jagan Nath was in contravention of the express provisions of S. 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence, and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing specified in the order, which appertains to his office and is in the nature of a public duty (Halsburys Laws of England Vol. 11, Lord Simonds Edition, p. 84).If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath on his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court. We have not been able to find a direct authority to cover a case like the one before us but it would appear that so far as election to an office is concerned, a mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact, full proceedings must be taken by way of injunction or election petition to oust the party in possession and that a mandamus will go only on the supposition that there is nobody holding office in question. In R. v. Chester Corporation 1855-25 LJQB 61(E), it was held that it was inflexible rule of law that where a person has been de facto elected to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information. A mandamus will not lie unless the election can be shown to be merely colourable.We cannot see why in principle there should be a distinction made between such a case and the case of a person, who has, apparently entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom. 8. In our opinion, the High Court erred in allowing the application of Jagan Nath filed under Art. 226 of the Constitution and making the order it did.
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7. The eviction of Jagan Nath was in contravention of the express provisions of S. 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence, and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing specified in the order, which appertains to his office and is in the nature of a public duty (Halsburys Laws of England Vol. 11, Lord Simonds Edition, p. 84).If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath on his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court. We have not been able to find a direct authority to cover a case like the one before us but it would appear that so far as election to an office is concerned, a mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact, full proceedings must be taken by way of injunction or election petition to oust the party in possession and that a mandamus will go only on the supposition that there is nobody holding office in question. InR. v. Chester Corporation 1855-25 LJQB, it was held that it was inflexible rule of law that where a person has been de facto elected to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information. A mandamus will not lie unless the election can be shown to be merely colourable.We cannot see why in principle there should be a distinction made between such a case and the case of a person, who has, apparently entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom8. In our opinion, the High Court erred in allowing the application of Jagan Nath filed under Art. 226 of the Constitution and making the order it did.
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M/s. CASIO India Co. Pvt. Ltd Vs. State of Haryana | stages is exempt. The exemption, therefore, is good specific, subject of course to other conditions being satisfied. 18. It is not disputed that on all intra-state sales no tax has been charged as the said transactions were treated as exempt by the tax authorities. However, in the course of inter-state sales, it is submitted by the revenue that the exemption would be limited and available only if the manufacturer i.e. the eligible industrial unit makes sale in inter-state trade or commerce, but if a third party, who had procured the goods from the eligible industrial unit makes inter-state sale, such trade or commerce would not be exempt. The contention of the State suffers from incorrect appreciation and understanding of the purport and objective behind Rule 28A and the notification in question. The basic objective and purpose is to exempt the goods manufactured in the State when they are further transferred in the course of inter-state or intra-state trade or commerce. Therefore, reference is made to the eligible industries and the goods manufactured by the said industries, which are entitled to exemption. The exemption notification refers to the sale of goods manufactured by a dealer holding a valid exemption certificate. The emphasis is on the goods manufactured. However, it is confined by the condition that the said manufacture should be within the exemption period and by a dealer holding an exemption certificate. 19. We have reproduced the exemption notification above and referred to the language employed. At this juncture, it is absolutely necessary to understand the language employed in the proviso to the notification. If there was no proviso to the notification there would have been no difficulty whatsoever in holding that the exemption is qua the goods manufactured and was not curtailed or restricted to the sales made by the manufacturer dealer and would not apply to the second or subsequent sales made by a trader, who buys the goods from the manufacturer-dealer and sells the same in the course of inter-state trade or commerce. It is pertinent to note that, clause (ii) of sub-rule (n) refers to sale of finished products in the course of inter-state trade or commerce where the finished products are manufactured by eligible industrial unit. There is no stipulation that only the first sale or the sale by the eligible industrial unit in Inter State or Trade would be exempt. The confusion arises, as it seems to us, in the proviso to the notification which states that the manufacturer-dealer should not have charged tax. It needs no special emphasis to mention that provisos can serve various purposes. The normal function is to qualify something enacted therein but for the said proviso would fall within the purview of the enactment. It is in the nature of exception. [See : Kedarnath Jute Manufacturing Co. Ltd v. Commercial Tax Officer, AIR 1966 SC 12 ]. Hidayatullah, J. (as his Lordship then was) in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596 had observed that a proviso is generally added to an enactment to qualify or create an exception to what is in the enactment, and the proviso is not interpreted as stating a general rule. Further, except for instances dealt with in the proviso, the same should not be used for interpreting the main provision/enactment, so as to exclude something by implication. It is by nature of an addendum or dealing with a subject matter which is foreign to the main enactment. (See : CIT, Mysore etc. v Indo Mercantile Bank Ltd, AIR 1959 SC 713 ). Proviso should not be normally construed as nullifying the enactment or as taking away completely a right conferred. 20. Read in this manner, we do not think the proviso should be given a greater or more significant role in interpretation of the main part of the notification, except as carving out an exception. It means and implies that the requirement of the proviso should be satisfied i.e. manufacturing dealer should not have charged the tax. The proviso would not scuttle or negate the main provision by holding that the first transaction by the eligible manufacturing dealer in the course by way of inter-state sale would be exempt but if the inter-state sale is made by trader/purchaser, the same would not be exempt. That will not be the correct understanding of the proviso. Giving over due and extended implied interpretation to the proviso in the notification will nullify and unreasonably restrict the general and plain words of the main notification. Such construction is not warranted.21. Quite apart from the above, Rule 28A(4)(c) supports the interpretation and does not counter it. The said rule exempts all intra-state sales including subsequent sales. The reason for enacting this clause is obvious. The intention is to exempt all subsequent stages in the State of Haryana and the eligible product can be sold a number of times, without payment of tax. Intra-state sales refer to sale between two parties within the State of Haryana. Inter-state transaction results in movement of goods from State of Haryana to another State. Thus, clause (ii) of sub-rule 2(4) refers to inter-state trade or commerce and the notification does not refer to subsequent sales as in case of Rule 28A(4) (c). Whether or not tax should be paid on subsequent sales/purchase in the other State cannot be made subject matter of Rule 28A or the notification. Inter-State sale from the State of Haryana will be only once or not a repeated one. Therefore, there is no requirement of reference to subsequent sale. In this context, it is rightly submitted by the assessee that there is only one inter-State sale from the State of Haryana and the interpretation as suggested by the revenue would tantamount to making the exempted goods chargeable to tax, and the said goods would cease to enjoy the competitive edge given to the manufacturer in the State of Haryana. It will be counter-productive. 22. In view of aforesaid analysis, we | 1[ds]do not think the proviso should be given a greater or more significant role in interpretation of the main part of the notification, except as carving out an exception. It means and implies that the requirement of the proviso should be satisfied i.e. manufacturing dealer should not have charged the tax. The proviso would not scuttle or negate the main provision by holding that the first transaction by the eligible manufacturing dealer in the course by way of inter-state sale would be exempt but if the inter-state sale is made by trader/purchaser, the same would not be exempt. That will not be the correct understanding of the proviso. Giving over due and extended implied interpretation to the proviso in the notification will nullify and unreasonably restrict the general and plain words of the main notification. Such construction is not warranted.21. Quite apart from the above, Rule 28A(4)(c) supports the interpretation and does not counter it. The said rule exempts all intra-state sales including subsequent sales. The reason for enacting this clause is obvious. The intention is to exempt all subsequent stages in the State of Haryana and the eligible product can be sold a number of times, without payment of tax. Intra-state sales refer to sale between two parties within the State of Haryana. Inter-state transaction results in movement of goods from State of Haryana to another State. Thus, clause (ii) of sub-rule 2(4) refers to inter-state trade or commerce and the notification does not refer to subsequent sales as in case of Rule 28A(4) (c). Whether or not tax should be paid on subsequent sales/purchase in the other State cannot be made subject matter of Rule 28A or the notification. Inter-State sale from the State of Haryana will be only once or not a repeated one. Therefore, there is no requirement of reference to subsequent sale. In this context, it is rightly submitted by the assessee that there is only one inter-State sale from the State of Haryana and the interpretation as suggested by the revenue would tantamount to making the exempted goods chargeable to tax, and the said goods would cease to enjoy the competitive edge given to the manufacturer in the State of Haryana. It will be counter-productive. | 1 | 6,197 | 419 | ### 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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stages is exempt. The exemption, therefore, is good specific, subject of course to other conditions being satisfied. 18. It is not disputed that on all intra-state sales no tax has been charged as the said transactions were treated as exempt by the tax authorities. However, in the course of inter-state sales, it is submitted by the revenue that the exemption would be limited and available only if the manufacturer i.e. the eligible industrial unit makes sale in inter-state trade or commerce, but if a third party, who had procured the goods from the eligible industrial unit makes inter-state sale, such trade or commerce would not be exempt. The contention of the State suffers from incorrect appreciation and understanding of the purport and objective behind Rule 28A and the notification in question. The basic objective and purpose is to exempt the goods manufactured in the State when they are further transferred in the course of inter-state or intra-state trade or commerce. Therefore, reference is made to the eligible industries and the goods manufactured by the said industries, which are entitled to exemption. The exemption notification refers to the sale of goods manufactured by a dealer holding a valid exemption certificate. The emphasis is on the goods manufactured. However, it is confined by the condition that the said manufacture should be within the exemption period and by a dealer holding an exemption certificate. 19. We have reproduced the exemption notification above and referred to the language employed. At this juncture, it is absolutely necessary to understand the language employed in the proviso to the notification. If there was no proviso to the notification there would have been no difficulty whatsoever in holding that the exemption is qua the goods manufactured and was not curtailed or restricted to the sales made by the manufacturer dealer and would not apply to the second or subsequent sales made by a trader, who buys the goods from the manufacturer-dealer and sells the same in the course of inter-state trade or commerce. It is pertinent to note that, clause (ii) of sub-rule (n) refers to sale of finished products in the course of inter-state trade or commerce where the finished products are manufactured by eligible industrial unit. There is no stipulation that only the first sale or the sale by the eligible industrial unit in Inter State or Trade would be exempt. The confusion arises, as it seems to us, in the proviso to the notification which states that the manufacturer-dealer should not have charged tax. It needs no special emphasis to mention that provisos can serve various purposes. The normal function is to qualify something enacted therein but for the said proviso would fall within the purview of the enactment. It is in the nature of exception. [See : Kedarnath Jute Manufacturing Co. Ltd v. Commercial Tax Officer, AIR 1966 SC 12 ]. Hidayatullah, J. (as his Lordship then was) in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596 had observed that a proviso is generally added to an enactment to qualify or create an exception to what is in the enactment, and the proviso is not interpreted as stating a general rule. Further, except for instances dealt with in the proviso, the same should not be used for interpreting the main provision/enactment, so as to exclude something by implication. It is by nature of an addendum or dealing with a subject matter which is foreign to the main enactment. (See : CIT, Mysore etc. v Indo Mercantile Bank Ltd, AIR 1959 SC 713 ). Proviso should not be normally construed as nullifying the enactment or as taking away completely a right conferred. 20. Read in this manner, we do not think the proviso should be given a greater or more significant role in interpretation of the main part of the notification, except as carving out an exception. It means and implies that the requirement of the proviso should be satisfied i.e. manufacturing dealer should not have charged the tax. The proviso would not scuttle or negate the main provision by holding that the first transaction by the eligible manufacturing dealer in the course by way of inter-state sale would be exempt but if the inter-state sale is made by trader/purchaser, the same would not be exempt. That will not be the correct understanding of the proviso. Giving over due and extended implied interpretation to the proviso in the notification will nullify and unreasonably restrict the general and plain words of the main notification. Such construction is not warranted.21. Quite apart from the above, Rule 28A(4)(c) supports the interpretation and does not counter it. The said rule exempts all intra-state sales including subsequent sales. The reason for enacting this clause is obvious. The intention is to exempt all subsequent stages in the State of Haryana and the eligible product can be sold a number of times, without payment of tax. Intra-state sales refer to sale between two parties within the State of Haryana. Inter-state transaction results in movement of goods from State of Haryana to another State. Thus, clause (ii) of sub-rule 2(4) refers to inter-state trade or commerce and the notification does not refer to subsequent sales as in case of Rule 28A(4) (c). Whether or not tax should be paid on subsequent sales/purchase in the other State cannot be made subject matter of Rule 28A or the notification. Inter-State sale from the State of Haryana will be only once or not a repeated one. Therefore, there is no requirement of reference to subsequent sale. In this context, it is rightly submitted by the assessee that there is only one inter-State sale from the State of Haryana and the interpretation as suggested by the revenue would tantamount to making the exempted goods chargeable to tax, and the said goods would cease to enjoy the competitive edge given to the manufacturer in the State of Haryana. It will be counter-productive. 22. In view of aforesaid analysis, we
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do not think the proviso should be given a greater or more significant role in interpretation of the main part of the notification, except as carving out an exception. It means and implies that the requirement of the proviso should be satisfied i.e. manufacturing dealer should not have charged the tax. The proviso would not scuttle or negate the main provision by holding that the first transaction by the eligible manufacturing dealer in the course by way of inter-state sale would be exempt but if the inter-state sale is made by trader/purchaser, the same would not be exempt. That will not be the correct understanding of the proviso. Giving over due and extended implied interpretation to the proviso in the notification will nullify and unreasonably restrict the general and plain words of the main notification. Such construction is not warranted.21. Quite apart from the above, Rule 28A(4)(c) supports the interpretation and does not counter it. The said rule exempts all intra-state sales including subsequent sales. The reason for enacting this clause is obvious. The intention is to exempt all subsequent stages in the State of Haryana and the eligible product can be sold a number of times, without payment of tax. Intra-state sales refer to sale between two parties within the State of Haryana. Inter-state transaction results in movement of goods from State of Haryana to another State. Thus, clause (ii) of sub-rule 2(4) refers to inter-state trade or commerce and the notification does not refer to subsequent sales as in case of Rule 28A(4) (c). Whether or not tax should be paid on subsequent sales/purchase in the other State cannot be made subject matter of Rule 28A or the notification. Inter-State sale from the State of Haryana will be only once or not a repeated one. Therefore, there is no requirement of reference to subsequent sale. In this context, it is rightly submitted by the assessee that there is only one inter-State sale from the State of Haryana and the interpretation as suggested by the revenue would tantamount to making the exempted goods chargeable to tax, and the said goods would cease to enjoy the competitive edge given to the manufacturer in the State of Haryana. It will be counter-productive.
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Shri Krishna Singh Vs. Mathura Ahir and Others | by his Guru Swami Atmavivekanand, the then mahant, in 1937 and nominated to be his successor and accordingly upon his demise on August 23, 1949, had been duly installed as mahant of the math by the Sant Mat Sampradaya, i.e., by the mahants and sanyasis of the bhesh and given chadar mahanti according to the tenets of fraternity. It was alleged that according to the tenets of this particular sect, anyone, including a Sudra, could be a sanyasi, and further that succession to the office of mahant was from Guru to chela according to the custom or usage prevailing in the sect. One of the issues on which the parties went on trial was whether there was in existence a math at Garwaghat, and if so, whether the house in suit was an accretion thereto.82. The High Court agreeing with the learned Munsif has upheld the plaintiffs claim. It was held that the house in suit was required by Swami Atmavivekanand from out of the offerings (bhent) made by his disciples and, therefore, was not his secular property, but was an accretion to the Garwaghat Math. It has further been held that the plaintiff Harsewanand was the validly initiated chela of Swami Atmavivekanand and was dully installed as mahant of the math after his death, by the Sant Mat fraternity according to his wishes. The defendants have been held to be rank trespassers. The decree under appeal crystallizes the rights of the parties. The cause of action did not die with the plaintiff. In the circumstances, respondent 1, Harshankaranand, who now claims to be the mahant, has the right to contest the appeal as representing the math, being the de facto mahant, for preservation of its properties.83. According to the Hindu jurisprudence, religious institution such as a math is treated as a juristic entity with a legal personality capable of holding and acquiring property. It, therefore, follows that the suit instituted by the mahant for the time being, on its behalf, is properly constituted and cannot abate under the provisions of Order 22 of the Code of Civil Procedure, on the death of the mahant pending the decision of the suit or appeal, as the real party to the suit is the institution. The ownership is in the institution or the idol. From its very nature a math or an idol can act and assert its rights only through human agency known as a mahant, shebait or dharmakarta or sometimes known as trustee.84. Jenkins, C.J. in Babajirao v. Laxmandas ((1904) ILR 28 Bom 215 at 223) defines the true notion of a math in the following terms :A math, like an idol, is in Hindu law a judicial person capable of acquiring, holding and vindicating legal rights, though of necessity it can only act in relation to those rights through the medium of some human agency.It follows that merely because that mahant for the time being dies and is succeeded by another mahant, the suit does not abate.85. The correctness of the decision in Ramswarup Das v. Rameshwar Das ((1949) ILR 28 PAt 989 : AIR 1950 Pat 184 ) is thus open to question. It does not stand to reason that when a suit is brought for possession by a mahant of an asthal or math, or by a shebait of a debottar property, and the defendant is adjudged to be a trespasser, such a suit should abate with the death of the mahant or shebait. This would imply that after a long drawn litigation, as here, the new mahant or shebait has to be relegated to a separate suit. The definition of legal representative as contained in Section 2(11) of the Code reads :"Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.86. The general rule is that all rights of action and all demands whatsoever, existing in favour of or against a person at the time of his death survive to or against his legal representative. In Muhammad Hussain v. Khushalo (1887) ILR 9 All 131 (FB)) Edge, C.J., while delivering the judgment of the Full Bench, observed :"I have always understood the law to be that in those cases in which an action would abate upon the death of the plaintiff before judgment, the action would not abate if final judgment had been obtained before the death of the plaintiff, in which case the benefit of the judgment would go to his legal representative.That, in our opinion, lays down the correct test."87. In the instant case, the appellant himself has, of curse, without prejudice to his right to challenge the right of the original plaintiff, Harsewanand, to bring the suit, substituted respondent 1, Harshankaranand, as his heir and legal representative, while disputing his claim that he had been appointed as the mahant, as he felt that the appeal could not proceed without substitution of his name. In this reply, respondent 1, Harshankaranand alleges that after the demise of mahant Harsewanand he was duly installed as the Mahant of Garwaghat Math by the Sant Mat fraternity. He further asserts that he was in possession and enjoyment of the math and its properties. The fact that he is in management and control of the math properties is not in dispute. The issue as to whether he was so installed or not or whether he has any right to the office of the mahant, cannot evidently be decided in the appeal, but nevertheless, he has a right to be substituted in place of the deceased mahant Harsewanand as he is a legal representative within the meaning Section 2(11), as he indubitably is intermeddling with the estate. He has, therefore, the right to come in and prosecute the appeal on behalf of the math.88. | 0[ds]In the instant case, the evidence on record sufficiently establishes that a math came to be established at Garwaghat and the building known as Bangla Kuti and certain other buildings, including the house in suit constituted the endowment of the math itself.There is also aof the Puri division of the Dasnami sect. They have tenets much in common, based on the central idea that the Supreme Deity is incomprehensible or, as they say, unseeable. They denounce idolatry. This more or less conforms to the tenets of the Sant Mat sect. It is proved by the evidence on record that followers of this sect treat the Guru as the incarnation of God. They have no faith in inanimate idols installed in temples nor do they worship them in their cult. There are no caste restrictions and anyone can be admitted into the Sant Mat fraternity.We are clearly of the opinion that the appellant Sri Krishna Singh, impleaded as defendant 5, was precluded from contending that his father Baikunth Singh, who on his initiation by Swami Sarupanand was baptised as Swami Atmavivekanand, was not a Hindu sanyasi. On May 29, 1949 he along with his brother brought a suit for partition, being suit No. 389 of 1949 in the Court of Judicial Officer, Chandauli, against the other members of their family.It is argued that the nomination of a person as a mahant invests him with a status and, therefore, capacity to succeed to the office of mahant is an incident of that status. It is said that the claim to mahantship is, therefore, a personal right which does not survive the plaintiff; any suit claiming such a status must abate on the death of the plaintiff. Alternatively, the submission is that if the Court came to the conclusion that the plaintiff had sued in his capacity as a de facto mahant, it is obvious that the cause of action would be personal to him and would certainly not survive the plaintiff. In that event, the suit must of necessity abate as a right claimed on the basis of de facto ownership cannot survive the plaintiff. We are afraid, we cannot appreciate this line ofhave always understood the law to be that in those cases in which an action would abate upon the death of the plaintiff before judgment, the action would not abate if final judgment had been obtained before the death of the plaintiff, in which case the benefit of the judgment would go to his legal representative.That, in our opinion, lays down the correct test.In the instant case, the appellant himself has, of curse, without prejudice to his right to challenge the right of the original plaintiff, Harsewanand, to bring the suit, substituted respondent 1, Harshankaranand, as his heir and legal representative, while disputing his claim that he had been appointed as the mahant, as he felt that the appeal could not proceed without substitution of his name. In this reply, respondent 1, Harshankaranand alleges that after the demise of mahant Harsewanand he was duly installed as the Mahant of Garwaghat Math by the Sant Mat fraternity. He further asserts that he was in possession and enjoyment of the math and its properties. The fact that he is in management and control of the math properties is not in dispute. The issue as to whether he was so installed or not or whether he has any right to the office of the mahant, cannot evidently be decided in the appeal, but nevertheless, he has a right to be substituted in place of the deceased mahant Harsewanand as he is a legal representative within the meaning Section 2(11), as he indubitably is intermeddling with the estate. He has, therefore, the right to come in and prosecute the appeal on behalf of the math. | 0 | 15,110 | 704 | ### 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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by his Guru Swami Atmavivekanand, the then mahant, in 1937 and nominated to be his successor and accordingly upon his demise on August 23, 1949, had been duly installed as mahant of the math by the Sant Mat Sampradaya, i.e., by the mahants and sanyasis of the bhesh and given chadar mahanti according to the tenets of fraternity. It was alleged that according to the tenets of this particular sect, anyone, including a Sudra, could be a sanyasi, and further that succession to the office of mahant was from Guru to chela according to the custom or usage prevailing in the sect. One of the issues on which the parties went on trial was whether there was in existence a math at Garwaghat, and if so, whether the house in suit was an accretion thereto.82. The High Court agreeing with the learned Munsif has upheld the plaintiffs claim. It was held that the house in suit was required by Swami Atmavivekanand from out of the offerings (bhent) made by his disciples and, therefore, was not his secular property, but was an accretion to the Garwaghat Math. It has further been held that the plaintiff Harsewanand was the validly initiated chela of Swami Atmavivekanand and was dully installed as mahant of the math after his death, by the Sant Mat fraternity according to his wishes. The defendants have been held to be rank trespassers. The decree under appeal crystallizes the rights of the parties. The cause of action did not die with the plaintiff. In the circumstances, respondent 1, Harshankaranand, who now claims to be the mahant, has the right to contest the appeal as representing the math, being the de facto mahant, for preservation of its properties.83. According to the Hindu jurisprudence, religious institution such as a math is treated as a juristic entity with a legal personality capable of holding and acquiring property. It, therefore, follows that the suit instituted by the mahant for the time being, on its behalf, is properly constituted and cannot abate under the provisions of Order 22 of the Code of Civil Procedure, on the death of the mahant pending the decision of the suit or appeal, as the real party to the suit is the institution. The ownership is in the institution or the idol. From its very nature a math or an idol can act and assert its rights only through human agency known as a mahant, shebait or dharmakarta or sometimes known as trustee.84. Jenkins, C.J. in Babajirao v. Laxmandas ((1904) ILR 28 Bom 215 at 223) defines the true notion of a math in the following terms :A math, like an idol, is in Hindu law a judicial person capable of acquiring, holding and vindicating legal rights, though of necessity it can only act in relation to those rights through the medium of some human agency.It follows that merely because that mahant for the time being dies and is succeeded by another mahant, the suit does not abate.85. The correctness of the decision in Ramswarup Das v. Rameshwar Das ((1949) ILR 28 PAt 989 : AIR 1950 Pat 184 ) is thus open to question. It does not stand to reason that when a suit is brought for possession by a mahant of an asthal or math, or by a shebait of a debottar property, and the defendant is adjudged to be a trespasser, such a suit should abate with the death of the mahant or shebait. This would imply that after a long drawn litigation, as here, the new mahant or shebait has to be relegated to a separate suit. The definition of legal representative as contained in Section 2(11) of the Code reads :"Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.86. The general rule is that all rights of action and all demands whatsoever, existing in favour of or against a person at the time of his death survive to or against his legal representative. In Muhammad Hussain v. Khushalo (1887) ILR 9 All 131 (FB)) Edge, C.J., while delivering the judgment of the Full Bench, observed :"I have always understood the law to be that in those cases in which an action would abate upon the death of the plaintiff before judgment, the action would not abate if final judgment had been obtained before the death of the plaintiff, in which case the benefit of the judgment would go to his legal representative.That, in our opinion, lays down the correct test."87. In the instant case, the appellant himself has, of curse, without prejudice to his right to challenge the right of the original plaintiff, Harsewanand, to bring the suit, substituted respondent 1, Harshankaranand, as his heir and legal representative, while disputing his claim that he had been appointed as the mahant, as he felt that the appeal could not proceed without substitution of his name. In this reply, respondent 1, Harshankaranand alleges that after the demise of mahant Harsewanand he was duly installed as the Mahant of Garwaghat Math by the Sant Mat fraternity. He further asserts that he was in possession and enjoyment of the math and its properties. The fact that he is in management and control of the math properties is not in dispute. The issue as to whether he was so installed or not or whether he has any right to the office of the mahant, cannot evidently be decided in the appeal, but nevertheless, he has a right to be substituted in place of the deceased mahant Harsewanand as he is a legal representative within the meaning Section 2(11), as he indubitably is intermeddling with the estate. He has, therefore, the right to come in and prosecute the appeal on behalf of the math.88.
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In the instant case, the evidence on record sufficiently establishes that a math came to be established at Garwaghat and the building known as Bangla Kuti and certain other buildings, including the house in suit constituted the endowment of the math itself.There is also aof the Puri division of the Dasnami sect. They have tenets much in common, based on the central idea that the Supreme Deity is incomprehensible or, as they say, unseeable. They denounce idolatry. This more or less conforms to the tenets of the Sant Mat sect. It is proved by the evidence on record that followers of this sect treat the Guru as the incarnation of God. They have no faith in inanimate idols installed in temples nor do they worship them in their cult. There are no caste restrictions and anyone can be admitted into the Sant Mat fraternity.We are clearly of the opinion that the appellant Sri Krishna Singh, impleaded as defendant 5, was precluded from contending that his father Baikunth Singh, who on his initiation by Swami Sarupanand was baptised as Swami Atmavivekanand, was not a Hindu sanyasi. On May 29, 1949 he along with his brother brought a suit for partition, being suit No. 389 of 1949 in the Court of Judicial Officer, Chandauli, against the other members of their family.It is argued that the nomination of a person as a mahant invests him with a status and, therefore, capacity to succeed to the office of mahant is an incident of that status. It is said that the claim to mahantship is, therefore, a personal right which does not survive the plaintiff; any suit claiming such a status must abate on the death of the plaintiff. Alternatively, the submission is that if the Court came to the conclusion that the plaintiff had sued in his capacity as a de facto mahant, it is obvious that the cause of action would be personal to him and would certainly not survive the plaintiff. In that event, the suit must of necessity abate as a right claimed on the basis of de facto ownership cannot survive the plaintiff. We are afraid, we cannot appreciate this line ofhave always understood the law to be that in those cases in which an action would abate upon the death of the plaintiff before judgment, the action would not abate if final judgment had been obtained before the death of the plaintiff, in which case the benefit of the judgment would go to his legal representative.That, in our opinion, lays down the correct test.In the instant case, the appellant himself has, of curse, without prejudice to his right to challenge the right of the original plaintiff, Harsewanand, to bring the suit, substituted respondent 1, Harshankaranand, as his heir and legal representative, while disputing his claim that he had been appointed as the mahant, as he felt that the appeal could not proceed without substitution of his name. In this reply, respondent 1, Harshankaranand alleges that after the demise of mahant Harsewanand he was duly installed as the Mahant of Garwaghat Math by the Sant Mat fraternity. He further asserts that he was in possession and enjoyment of the math and its properties. The fact that he is in management and control of the math properties is not in dispute. The issue as to whether he was so installed or not or whether he has any right to the office of the mahant, cannot evidently be decided in the appeal, but nevertheless, he has a right to be substituted in place of the deceased mahant Harsewanand as he is a legal representative within the meaning Section 2(11), as he indubitably is intermeddling with the estate. He has, therefore, the right to come in and prosecute the appeal on behalf of the math.
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Bombay Metropolitan Region Development Authority, Bombay Vs. Gokak Patel Volkart Ltd. and Ors | attention to the decision of the court of Appeal in the case of R. v. Paddington Valuation Officer. In particular we were referred to the judgment of Salmon, L. J. wherein it was observed "I am not altogether satisfied that there would be any power to grant mandamus and keep the 1963 valuation list in force by the simple expedient of postponing certiorari until after a new list had been prepared. No doubt it would be convenient, if possible, to follow this course, were the appeal to be allowed; indeed grave inconvenience, if not chaos would follow if the 1956 valuation list were to be revived which both the appellants and respondents at first agreed would be the inevitable result of allowing the appeal. It may be that mandamus can be granted without certiorari, but mandamus cannot be granted if there is a valid valuation list in being. It is not enough that the valuation officer should have prepared the list badly or even very badly. In such a case, he could not be ordered by mandamus to correct his mistakes or make a new list. In order for mandamus to lie, it must be established that he has prepared the list illegally or in bad faith so that in effect he has not exercised his statutory function at all and that accordingly there is in reality no valid list in existence : R. v. Cotham ex parte William. Accordingly, it seems to me that a finding that the list in null and void is necessarily implicit in an order of mandamus. " * 22. We fail to see, how the respondents can derive any support for their case from these observations of Salmon, L. J. That was a case where it was found that the valuation officer had prepared a valuation list of 31, 656 dwellings at Paddington erroneously. There was a prayer for certiorari to quash the list altogether. There was also another prayer for a writ of mandamus directing the valuation officer to prepare a new list. Lord Denning, M. R. held that if the valuation list was entirely quashed there will be chaos. Therefore, the existing list could remain until it was replaced by a new list, when the new list was prepared the old list will be quashed by writ of certiorari. Lord Denning was of the view that certiorari was not a necessary prerequisite to mandamus 23. Lord Salmon, L. J. did not express any final opinion on the controversy. It was observed "Having regard to the view, however, that I take of the facts, the point as to whether the 1963 list could be temporarily kept alive were mandamus to issue does not arise for decision and I express no concluded opinion upon it. " * 24. In the case before us the decision taken by metropolitan Authority on the application of the respondent has been quashed. Direction has been given to dispose of the application afresh. This direction does not make any sense unless in reality there was an earlier order dealing with the application made by the respondent. It cannot be said that the Metropolitan Authority had not passed any order, erroneously or otherwise, within 60 days of the receipt of the application. The order that was passed may have become null and void in law but the fact of the matter is that an order had actually been passed, otherwise there would have been no question of issuance of a writ of certiorari for quashing of that order 25. In the case of Supdt. of Taxes v. Onkarmal Nathmal Trust this Court dealt with the question whether a notice under Section 7(2) of the Assam Taxation (On Goods Carried by Road or Inland Waterways) Act, 1961 was valid. The prescribed period of limitation under the Act was two years from the expiry of the relevant period. There was a difference of opinion on this point. The majority view was that the State was guilty of laches even though the State was restrained by an order from taking any action under the Act. The State did not pray for modification of the order. The State followed the policy of inactivity. Therefore, the notice under Section 7(2) issued in that case was held invalid 26. In the instant case, there is no question of any inactivity. The appellant had passed an order within 60 days, which was ultimately quashed by the High Court. The deeming clause under Section 13(3) comes into operation only when the Metropolitan Authority fails to pass an order within a period of 60 days from the receipt of the application. But if an order is passed and that order is quashed by the appellate authority or by the High Court, the deeming clause does not become operative straightaway. The appellate order will now hold the field and fresh order will have to be passed in terms of the order of the appellate authority or the Court27. The last contention of Mr. Nariman was that the impugned order dated 17-9-1984 had been passed under Section 13(3) of the BMRDA Act. The Metropolitan Authority had no jurisdiction to pass any order dealing with the application made by the respondent under any other provision except Section 13(3). If the order is not under Section 13(3) then the respondent will have no right to appeal against that order28. There can be no dispute about this preposition. The consequential order passed by the Metropolitan Authority after it was quashed by the High Court must be treated as an order under Section 13(3) of the Act for the purpose of appeal and the limitation must be counted from the date of the fresh order. But that does not answer the question whether the time-limit for passing an order under sub-section (3) of Section 13 will apply to the fresh order which will now have to be passed. That question has been answered in the case of Pooran Mall referred to earlier in the judgment | 1[ds]22. We fail to see, how the respondents can derive any support for their case from these observations of Salmon, L. J. That was a case where it was found that the valuation officer had prepared a valuation list of 31, 656 dwellings at Paddington erroneously. There was a prayer for certiorari to quash the list altogether. There was also another prayer for a writ of mandamus directing the valuation officer to prepare a new list. Lord Denning, M. R. held that if the valuation list was entirely quashed there will be chaos. Therefore, the existing list could remain until it was replaced by a new list, when the new list was prepared the old list will be quashed by writ of certiorari. Lord Denning was of the view that certiorari was not a necessary prerequisite toIn the case before us the decision taken by metropolitan Authority on the application of the respondent has been quashed. Direction has been given to dispose of the application afresh. This direction does not make any sense unless in reality there was an earlier order dealing with the application made by the respondent. It cannot be said that the Metropolitan Authority had not passed any order, erroneously or otherwise, within 60 days of the receipt of the application. The order that was passed may have become null and void in law but the fact of the matter is that an order had actually been passed, otherwise there would have been no question of issuance of a writ of certiorari for quashing of thatIn the instant case, there is no question of any inactivity. The appellant had passed an order within 60 days, which was ultimately quashed by the High Court. The deeming clause under Section 13(3) comes into operation only when the Metropolitan Authority fails to pass an order within a period of 60 days from the receipt of the application. But if an order is passed and that order is quashed by the appellate authority or by the High Court, the deeming clause does not become operative straightaway. The appellate order will now hold the field and fresh order will have to be passed in terms of the order of the appellate authority or the Court27. The last contention of Mr. Nariman was that the impugned order dated 17-9-1984 had been passed under Section 13(3) of the BMRDA Act. The Metropolitan Authority had no jurisdiction to pass any order dealing with the application made by the respondent under any other provision except Section 13(3). If the order is not under Section 13(3) then the respondent will have no right to appeal against that order28. There can be no dispute about this preposition. The consequential order passed by the Metropolitan Authority after it was quashed by the High Court must be treated as an order under Section 13(3) of the Act for the purpose of appeal and the limitation must be counted from the date of the fresh order. But that does not answer the question whether the time-limit for passing an order under sub-section (3) of Section 13 will apply to the fresh order which will now have to be passed. That question has been answered in the case of Pooran Mall referred to earlier in the judgment | 1 | 3,993 | 601 | ### 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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attention to the decision of the court of Appeal in the case of R. v. Paddington Valuation Officer. In particular we were referred to the judgment of Salmon, L. J. wherein it was observed "I am not altogether satisfied that there would be any power to grant mandamus and keep the 1963 valuation list in force by the simple expedient of postponing certiorari until after a new list had been prepared. No doubt it would be convenient, if possible, to follow this course, were the appeal to be allowed; indeed grave inconvenience, if not chaos would follow if the 1956 valuation list were to be revived which both the appellants and respondents at first agreed would be the inevitable result of allowing the appeal. It may be that mandamus can be granted without certiorari, but mandamus cannot be granted if there is a valid valuation list in being. It is not enough that the valuation officer should have prepared the list badly or even very badly. In such a case, he could not be ordered by mandamus to correct his mistakes or make a new list. In order for mandamus to lie, it must be established that he has prepared the list illegally or in bad faith so that in effect he has not exercised his statutory function at all and that accordingly there is in reality no valid list in existence : R. v. Cotham ex parte William. Accordingly, it seems to me that a finding that the list in null and void is necessarily implicit in an order of mandamus. " * 22. We fail to see, how the respondents can derive any support for their case from these observations of Salmon, L. J. That was a case where it was found that the valuation officer had prepared a valuation list of 31, 656 dwellings at Paddington erroneously. There was a prayer for certiorari to quash the list altogether. There was also another prayer for a writ of mandamus directing the valuation officer to prepare a new list. Lord Denning, M. R. held that if the valuation list was entirely quashed there will be chaos. Therefore, the existing list could remain until it was replaced by a new list, when the new list was prepared the old list will be quashed by writ of certiorari. Lord Denning was of the view that certiorari was not a necessary prerequisite to mandamus 23. Lord Salmon, L. J. did not express any final opinion on the controversy. It was observed "Having regard to the view, however, that I take of the facts, the point as to whether the 1963 list could be temporarily kept alive were mandamus to issue does not arise for decision and I express no concluded opinion upon it. " * 24. In the case before us the decision taken by metropolitan Authority on the application of the respondent has been quashed. Direction has been given to dispose of the application afresh. This direction does not make any sense unless in reality there was an earlier order dealing with the application made by the respondent. It cannot be said that the Metropolitan Authority had not passed any order, erroneously or otherwise, within 60 days of the receipt of the application. The order that was passed may have become null and void in law but the fact of the matter is that an order had actually been passed, otherwise there would have been no question of issuance of a writ of certiorari for quashing of that order 25. In the case of Supdt. of Taxes v. Onkarmal Nathmal Trust this Court dealt with the question whether a notice under Section 7(2) of the Assam Taxation (On Goods Carried by Road or Inland Waterways) Act, 1961 was valid. The prescribed period of limitation under the Act was two years from the expiry of the relevant period. There was a difference of opinion on this point. The majority view was that the State was guilty of laches even though the State was restrained by an order from taking any action under the Act. The State did not pray for modification of the order. The State followed the policy of inactivity. Therefore, the notice under Section 7(2) issued in that case was held invalid 26. In the instant case, there is no question of any inactivity. The appellant had passed an order within 60 days, which was ultimately quashed by the High Court. The deeming clause under Section 13(3) comes into operation only when the Metropolitan Authority fails to pass an order within a period of 60 days from the receipt of the application. But if an order is passed and that order is quashed by the appellate authority or by the High Court, the deeming clause does not become operative straightaway. The appellate order will now hold the field and fresh order will have to be passed in terms of the order of the appellate authority or the Court27. The last contention of Mr. Nariman was that the impugned order dated 17-9-1984 had been passed under Section 13(3) of the BMRDA Act. The Metropolitan Authority had no jurisdiction to pass any order dealing with the application made by the respondent under any other provision except Section 13(3). If the order is not under Section 13(3) then the respondent will have no right to appeal against that order28. There can be no dispute about this preposition. The consequential order passed by the Metropolitan Authority after it was quashed by the High Court must be treated as an order under Section 13(3) of the Act for the purpose of appeal and the limitation must be counted from the date of the fresh order. But that does not answer the question whether the time-limit for passing an order under sub-section (3) of Section 13 will apply to the fresh order which will now have to be passed. That question has been answered in the case of Pooran Mall referred to earlier in the judgment
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22. We fail to see, how the respondents can derive any support for their case from these observations of Salmon, L. J. That was a case where it was found that the valuation officer had prepared a valuation list of 31, 656 dwellings at Paddington erroneously. There was a prayer for certiorari to quash the list altogether. There was also another prayer for a writ of mandamus directing the valuation officer to prepare a new list. Lord Denning, M. R. held that if the valuation list was entirely quashed there will be chaos. Therefore, the existing list could remain until it was replaced by a new list, when the new list was prepared the old list will be quashed by writ of certiorari. Lord Denning was of the view that certiorari was not a necessary prerequisite toIn the case before us the decision taken by metropolitan Authority on the application of the respondent has been quashed. Direction has been given to dispose of the application afresh. This direction does not make any sense unless in reality there was an earlier order dealing with the application made by the respondent. It cannot be said that the Metropolitan Authority had not passed any order, erroneously or otherwise, within 60 days of the receipt of the application. The order that was passed may have become null and void in law but the fact of the matter is that an order had actually been passed, otherwise there would have been no question of issuance of a writ of certiorari for quashing of thatIn the instant case, there is no question of any inactivity. The appellant had passed an order within 60 days, which was ultimately quashed by the High Court. The deeming clause under Section 13(3) comes into operation only when the Metropolitan Authority fails to pass an order within a period of 60 days from the receipt of the application. But if an order is passed and that order is quashed by the appellate authority or by the High Court, the deeming clause does not become operative straightaway. The appellate order will now hold the field and fresh order will have to be passed in terms of the order of the appellate authority or the Court27. The last contention of Mr. Nariman was that the impugned order dated 17-9-1984 had been passed under Section 13(3) of the BMRDA Act. The Metropolitan Authority had no jurisdiction to pass any order dealing with the application made by the respondent under any other provision except Section 13(3). If the order is not under Section 13(3) then the respondent will have no right to appeal against that order28. There can be no dispute about this preposition. The consequential order passed by the Metropolitan Authority after it was quashed by the High Court must be treated as an order under Section 13(3) of the Act for the purpose of appeal and the limitation must be counted from the date of the fresh order. But that does not answer the question whether the time-limit for passing an order under sub-section (3) of Section 13 will apply to the fresh order which will now have to be passed. That question has been answered in the case of Pooran Mall referred to earlier in the judgment
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Smt. Sudha Devi Vs. M.P. Narayanan & Ors | meagre evidence led by her, failed to establish her case. 4. The fact that the plaintiff obtained an ex parte decree in the earlier suit against defendants 1 and 2 is established by the copy of the decree exhibited in the case. The allegation in the plaint so far as the third defendant is concerned, is in paragraph 7 in the following words: "7. Subsequent to the said decree on a date or dates which the plaintiff is unable to specify until after disclosure by the defendants, the first and/or second defendants wrongfully permitted and allowed the third defendant to occupy the said demised flat. The first and/or second defendants by themselves and/or by the third defendant are still in wrongful possession of the said demised flat." The only evidence relevant to this part of the case is to be found in the oral evidence of the plaintiffs sole witness Nand Kumar Tibrewal. The High Court (in appeal) has declined to rely on his evidence mainly on the ground that the witness has not disclosed his concern with the suit property or his relationship with the plaintiff. He has been rejected as incompetent. The learned counsel for the appellant contended that the witness (now deceased) was the husband of the plaintiff-appellant and thus he was fully conversant with the relevant facts. The criticism by the High Court that the witness did not state anything in his evidence which could connect him with the plaintiff or the property and thus make him competent was attempted to be met before us by relying on an affidavit filed in this Court. We are afraid, the plaintiff cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage. Besides, affidavit are not included in the definition of evidence in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure. This part of the argument of Mr Tapas Ray must, therefore, be rejected. 5. The learned counsel next urged that even ignoring the relationship of the witness with the plaintiff, his evidence is adequate to prove the plaintiffs case which has not been rebutted by any of the defendants either by filing a written statement or cross-examining the witness. Mr Bobde, the learned counsel representing defendant 3 (respondent 1 before us) contended that the witness contradicted the case pleaded in the plaint by positively stating that defendant 3 was in possession of the flat in question from before the date of the decree passed in the earlier suit. The plaintiffs assertion in paragraph 7 of the plaint is thus contradicted and the suit cannot be decreed on its basis. The learned counsel proceeded to analyse the situation arising out of the records of the case to show that if defendant 3 is held to be in possession since before the earlier decree, other issues would arise in the suit, on which the plaintiff will be required to lead further evidence. The learned counsel strenuously argued that in the facts and circumstances of the case, the prayer of the plaintiff made after the disposal of the appeal before the Letters Patent Bench for remanding the suit to the learned Single Judge (Original Side) for retrial was fit to be allowed and that Civil Appeal No. 4145 of 1986 should be allowed by this Court. 6. On the failure of the defendants to appear in the suit, the learned trial judge decided to proceed with the case ex parte. Even in absence of a defence the court cannot pass an ex parte decree without reliable relevant evidence. The fact that the plaintiff chose to examine some evidence in the case cannot by itself entitle her to a decree. The High Court (in appeal) was, therefore, perfectly justified in scrutinising the evidence from this angle. The suit was filed and the relief was claimed on the basis that the third defendant was inducted in the flat in question by the other two defendants after they had already suffered a decree, and there is not an iota of evidence led by the plaintiff to prove this story. On the other hand, the evidence of the sole witness disproves this part of the case. Having regard to the allegations in the plaint, the facts emerging from the documents and the oral evidence, it is clear that several other questions may arise for consideration if defendant 3 is assumed to be in possession from before the earlier decree. We, therefore, agree with Mr Bobde that the plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is. 7. After hearing the learned counsel for the parties at considerable length, we also agree with Mr Bobde that in the interest of justice the prayer made on behalf of the plaintiff before the High Court after the disposal of the appeal for remand and retrial of the suit is fit to be allowed. As nobody is disputing this position before us, we do not consider it necessary to further deal with this aspect. In view of the prayer made by the plaintiff in the High Court and in Civil Appeal No. 4145 of 1986 before this Court and the concession of defendant 3 before us, we hold that the suit should be sent back to the learned Single Judge for retrial. The plaintiff may file an application for amendment of her pleading, if so advised, and in that case the learned Single Judge shall dispose it of in accordance with law. The defendants will thereafter be allowed to file their written statements within a period to be indicated by the court. The suit will thereafter be taken up for further trial as expeditiously as may be possible. The evidence already led by the plaintiff shall continue to be evidence in the suit. | 1[ds]We, therefore, agree with Mr Bobde that the plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is7. After hearing the learned counsel for the parties at considerable length, we also agree with Mr Bobde that in the interest of justice the prayer made on behalf of the plaintiff before the High Court after the disposal of the appeal for remand and retrial of the suit is fit to be allowed. As nobody is disputing this position before us, we do not consider it necessary to further deal with this aspect. In view of the prayer made by the plaintiff in the High Court and in Civil Appeal No. 4145 of 1986 before this Court and the concession of defendant 3 before us, we hold that the suit should be sent back to the learned Single Judge for retrial. The plaintiff may file an application for amendment of her pleading, if so advised, and in that case the learned Single Judge shall dispose it of in accordance with law. The defendants will thereafter be allowed to file their written statements within a period to be indicated by the court. The suit will thereafter be taken up for further trial as expeditiously as may be possible. The evidence already led by the plaintiff shall continue to be evidence in the suit | 1 | 1,543 | 252 | ### 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.
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meagre evidence led by her, failed to establish her case. 4. The fact that the plaintiff obtained an ex parte decree in the earlier suit against defendants 1 and 2 is established by the copy of the decree exhibited in the case. The allegation in the plaint so far as the third defendant is concerned, is in paragraph 7 in the following words: "7. Subsequent to the said decree on a date or dates which the plaintiff is unable to specify until after disclosure by the defendants, the first and/or second defendants wrongfully permitted and allowed the third defendant to occupy the said demised flat. The first and/or second defendants by themselves and/or by the third defendant are still in wrongful possession of the said demised flat." The only evidence relevant to this part of the case is to be found in the oral evidence of the plaintiffs sole witness Nand Kumar Tibrewal. The High Court (in appeal) has declined to rely on his evidence mainly on the ground that the witness has not disclosed his concern with the suit property or his relationship with the plaintiff. He has been rejected as incompetent. The learned counsel for the appellant contended that the witness (now deceased) was the husband of the plaintiff-appellant and thus he was fully conversant with the relevant facts. The criticism by the High Court that the witness did not state anything in his evidence which could connect him with the plaintiff or the property and thus make him competent was attempted to be met before us by relying on an affidavit filed in this Court. We are afraid, the plaintiff cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage. Besides, affidavit are not included in the definition of evidence in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure. This part of the argument of Mr Tapas Ray must, therefore, be rejected. 5. The learned counsel next urged that even ignoring the relationship of the witness with the plaintiff, his evidence is adequate to prove the plaintiffs case which has not been rebutted by any of the defendants either by filing a written statement or cross-examining the witness. Mr Bobde, the learned counsel representing defendant 3 (respondent 1 before us) contended that the witness contradicted the case pleaded in the plaint by positively stating that defendant 3 was in possession of the flat in question from before the date of the decree passed in the earlier suit. The plaintiffs assertion in paragraph 7 of the plaint is thus contradicted and the suit cannot be decreed on its basis. The learned counsel proceeded to analyse the situation arising out of the records of the case to show that if defendant 3 is held to be in possession since before the earlier decree, other issues would arise in the suit, on which the plaintiff will be required to lead further evidence. The learned counsel strenuously argued that in the facts and circumstances of the case, the prayer of the plaintiff made after the disposal of the appeal before the Letters Patent Bench for remanding the suit to the learned Single Judge (Original Side) for retrial was fit to be allowed and that Civil Appeal No. 4145 of 1986 should be allowed by this Court. 6. On the failure of the defendants to appear in the suit, the learned trial judge decided to proceed with the case ex parte. Even in absence of a defence the court cannot pass an ex parte decree without reliable relevant evidence. The fact that the plaintiff chose to examine some evidence in the case cannot by itself entitle her to a decree. The High Court (in appeal) was, therefore, perfectly justified in scrutinising the evidence from this angle. The suit was filed and the relief was claimed on the basis that the third defendant was inducted in the flat in question by the other two defendants after they had already suffered a decree, and there is not an iota of evidence led by the plaintiff to prove this story. On the other hand, the evidence of the sole witness disproves this part of the case. Having regard to the allegations in the plaint, the facts emerging from the documents and the oral evidence, it is clear that several other questions may arise for consideration if defendant 3 is assumed to be in possession from before the earlier decree. We, therefore, agree with Mr Bobde that the plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is. 7. After hearing the learned counsel for the parties at considerable length, we also agree with Mr Bobde that in the interest of justice the prayer made on behalf of the plaintiff before the High Court after the disposal of the appeal for remand and retrial of the suit is fit to be allowed. As nobody is disputing this position before us, we do not consider it necessary to further deal with this aspect. In view of the prayer made by the plaintiff in the High Court and in Civil Appeal No. 4145 of 1986 before this Court and the concession of defendant 3 before us, we hold that the suit should be sent back to the learned Single Judge for retrial. The plaintiff may file an application for amendment of her pleading, if so advised, and in that case the learned Single Judge shall dispose it of in accordance with law. The defendants will thereafter be allowed to file their written statements within a period to be indicated by the court. The suit will thereafter be taken up for further trial as expeditiously as may be possible. The evidence already led by the plaintiff shall continue to be evidence in the suit.
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We, therefore, agree with Mr Bobde that the plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is7. After hearing the learned counsel for the parties at considerable length, we also agree with Mr Bobde that in the interest of justice the prayer made on behalf of the plaintiff before the High Court after the disposal of the appeal for remand and retrial of the suit is fit to be allowed. As nobody is disputing this position before us, we do not consider it necessary to further deal with this aspect. In view of the prayer made by the plaintiff in the High Court and in Civil Appeal No. 4145 of 1986 before this Court and the concession of defendant 3 before us, we hold that the suit should be sent back to the learned Single Judge for retrial. The plaintiff may file an application for amendment of her pleading, if so advised, and in that case the learned Single Judge shall dispose it of in accordance with law. The defendants will thereafter be allowed to file their written statements within a period to be indicated by the court. The suit will thereafter be taken up for further trial as expeditiously as may be possible. The evidence already led by the plaintiff shall continue to be evidence in the suit
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M/S. Sahni Silk Mills(P) Ltd. Vs. Employees State Insurance Corpn | Regional Directors, Assistant Regional Directors and other officers mentioned in the resolution by designations. Neither any grievance has been made nor can it be made so far as this resolution is concerned because the Corporation has directly delegated its power under Section 85-B to different officers with reference to their designations, throughout the country, and no power is given in this resolution to the Director General to authorise any other officer to levy and recover damages from the employers 12. It has to be borne in mind that the exercise of the power under Section 85-B(1) is quasi-judicial in nature, because there is always a scope for controversy and dispute and that is why the section itself requires that before recovering any such damages, a reasonable opportunity of being heard shall be given to the employer. The employer is entitled to raise any objection consistent with the provisions of the Act. Those objections have to be considered. After consideration of objections, if any, an order for recovery of damages has to be passed. The maxim delegatus non-potest delegare was originally invoked in the context of delegation of judicial powers saying that in the entire process of adjudication a judge must act personally except insofar as he is expressly absolved from his duty by a statute. The basic principle behind the aforesaid maxim is that "a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute". (Vide John Willis, "Delegatus non-potest delegare, (1943) 21 Can. Bar Rev. 257, 259) "13. It cannot be disputed that by the impugned resolution dated 28-2-1976 the Corporation not only delegated its power under Section 85-B(1) of the Act to the Director General, but also left it to the Director General to authorise any other officer to exercise the power under Section 85-B(1). From Section 94-A it does not appear that Parliament vested power in the Corporation to delegate its power on any officer or authority subordinate to the Corporation, and also vested power in the Corporation to empower such officer or authority, to authorise any other officer to exercise the said power under Section 85-B(1). If Section 94-A had a provision enabling the Corporation not only to delegate its power to any other officer or authority subordinate to the Corporation, but also to empower such officer or authority in its own turn to authorise any other officer to exercise that power, the resolution could have been sustained on the principle indicated in the cases Harishankar Bagla v. State of M. P. and Barium Chemicals Ltd. v. Company Law Board. As such it has to be held that the part of the resolution dated 28-2-1976, which authorises the Director General to permit any other officer to exercise the power under Section 85-B(1) of the Act is ultra vires Section 94-A14. It is an admitted position that the Regional Directors have exercised the power under Section 85-B(1) of the Act while passing the impugned orders for recovery of the damages from the appellants. The Regional Directors had been authorised to do so by the Director General of the Corporation by an office order dated 3-5-1976 made on the basis of the aforesaid resolution of the Corporation dated 28-2-1976. Once that part of the earlier resolution is held as invalid, the office order dated 3-5-1976 issued by the Director General also becomes invalid. The Regional Directors therefore could not have passed the impugned orders on the basis of the invalid office order dated 3-5-197615. Hence the view taken in the case of Rameshwar Jute Mills Ltd. v. Union of India by the Full Bench of the Patna High Court as well as in the case of Employees State Insurance Corpn. v. Dhanda Engineers Pvt. Ltd., by a Division Bench of the Punjab and Haryana High Court upholding the resolution dated 28-2-1976 and office order dated 3-5-1976 cannot be sustained and the opinion expressed in the case of Employees State Insurance Corpn., Bangalore v. Shoba Engineers, by a Division Bench of the Karnataka High Court, that the aforesaid resolution dated 28-2-1976 and office order dated 3-5-1976 was invalid has to be upheld16. Unfortunately, these appeals have remained pending in this Court for the last many years and in the meantime, on the basis of the resolution dated 28-2-1976 and office order dated 3-5-1976 the different Regional Directors of the Corporation in different parts of the country have exercised power under Section 85-B(1) of the Act for recovery of the damages from different employers. That exercise of power had been upheld by a Full Bench of Patna High Court and a Division Bench of the Punjab and Haryana High Court referred to above. In this background, it be improper to declare all such actions taken by the different Regional Directors as invalid. The Corporation has itself, later by its resolution dated 19-2-1983 superseded and recalled the aforesaid resolution dated 28-2-1976. As such, any exercise of power by the Regional Directors on and from 19-2-1983 cannot be questioned. The disputed period is only between 28-2-1976 and 19-2-1983. According to us, it will not be proper for this Court to upset and unsettle position at this late stage. Nor is it in public interest to do so. The orders passed are in no way erroneous on merits. Taking all facts and circumstances into consideration, we direct that no actions or proceedings shall be entertained for refund of amounts which have already been realised as damages from the employers concerned. However, if from some employers, the damages under Section 85-B(1), on the basis of orders passed by the Regional Directors between 3-5-1976 and 19-2-1983 have not yet been realised, they shall not be realised. In such cases, it will be open for the Regional Directors to issue fresh notices and assess and recover the damages, if any | 1[ds]10. So far as the present Section 94-A is concerned, it says that the Corporation subject to any regulation made by the Corporation in that behalf, may direct that particular or any of the powers and functions which may be exercised or performed by the Corporation, may, in relation to such matters and subject to such conditions, if any, as may be specified "be also exercisable by any officer or authority subordinate to the Corporation". Section 94-A does not specifically provide that any officer or authority subordinate to the Corporation to whom the power has been delegated by the Corporation, may in his turn authorise any other officer to exercise or perform that power or function. But by the resolution dated 28-2-1976 the Corporation has not only delegated its power under Section 85-B(1) of the Act to the Director General, but has also empowered the Director General to authorise any other officer to exercise the said power. Unless it is held that Section 94-A of the Act, enables the Corporation to delegate any of its powers and functions to any officer or authority subordinate to the Corporation, and he in his turn can sub-delegate the exercise of the said power to any other officer, the last part of the resolution dated 28-2-1976 cannot be held to be within the framework of Section 94-A. According to us, parliament while introducing Section 94-A in the Act, only conceived direct delegation by the Corporation to different officers or authorities, subordinate to the Corporation, and there is no scope for such delegate to sub-delegate that power, by authorising any other officer to exercise or perform the power soIt has to be borne in mind that the exercise of the power under Section 85-B(1) is quasi-judicial in nature, because there is always a scope for controversy and dispute and that is why the section itself requires that before recovering any such damages, a reasonable opportunity of being heard shall be given to the employer. The employer is entitled to raise any objection consistent with the provisions of the Act. Those objections have to be considered. After consideration of objections, if any, an order for recovery of damages has to be passed. The maxim delegatus non-potest delegare was originally invoked in the context of delegation of judicial powers saying that in the entire process of adjudication a judge must act personally except insofar as he is expressly absolved from his duty by a statute. The basic principle behind the aforesaid maxim is that "a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute". (Vide John Willis, "Delegatus non-potest delegare, (1943) 21 Can. Bar Rev. 257, 259) "13. It cannot be disputed that by the impugned resolution dated 28-2-1976 the Corporation not only delegated its power under Section 85-B(1) of the Act to the Director General, but also left it to the Director General to authorise any other officer to exercise the power under Section 85-B(1). From Section 94-A it does not appear that Parliament vested power in the Corporation to delegate its power on any officer or authority subordinate to the Corporation, and also vested power in the Corporation to empower such officer or authority, to authorise any other officer to exercise the said power under Section 85-B(1). If Section 94-A had a provision enabling the Corporation not only to delegate its power to any other officer or authority subordinate to the Corporation, but also to empower such officer or authority in its own turn to authorise any other officer to exercise that power, the resolution could have been sustained on the principle indicated in the cases Harishankar Bagla v. State of M. P. and Barium Chemicals Ltd. v. Company Law Board. As such it has to be held that the part of the resolution dated 28-2-1976, which authorises the Director General to permit any other officer to exercise the power under Section 85-B(1) of the Act is ultra vires Section 94-A14. It is an admitted position that the Regional Directors have exercised the power under Section 85-B(1) of the Act while passing the impugned orders for recovery of the damages from the appellants. The Regional Directors had been authorised to do so by the Director General of the Corporation by an office order dated 3-5-1976 made on the basis of the aforesaid resolution of the Corporation dated 28-2-1976. Once that part of the earlier resolution is held as invalid, the office order dated 3-5-1976 issued by the Director General also becomes invalid. The Regional Directors therefore could not have passed the impugned orders on the basis of the invalid office order dated 3-5-197615. Hence the view taken in the case of Rameshwar Jute Mills Ltd. v. Union of India by the Full Bench of the Patna High Court as well as in the case of Employees State Insurance Corpn. v. Dhanda Engineers Pvt. Ltd., by a Division Bench of the Punjab and Haryana High Court upholding the resolution dated 28-2-1976 and office order dated 3-5-1976 cannot be sustained and the opinion expressed in the case of Employees State Insurance Corpn., Bangalore v. Shoba Engineers, by a Division Bench of the Karnataka High Court, that the aforesaid resolution dated 28-2-1976 and office order dated 3-5-1976 was invalid has to be upheld16. Unfortunately, these appeals have remained pending in this Court for the last many years and in the meantime, on the basis of the resolution dated 28-2-1976 and office order dated 3-5-1976 the different Regional Directors of the Corporation in different parts of the country have exercised power under Section 85-B(1) of the Act for recovery of the damages from different employers. That exercise of power had been upheld by a Full Bench of Patna High Court and a Division Bench of the Punjab and Haryana High Court referred to above. In this background, it be improper to declare all such actions taken by the different Regional Directors as invalid. The Corporation has itself, later by its resolution dated 19-2-1983 superseded and recalled the aforesaid resolution dated 28-2-1976. As such, any exercise of power by the Regional Directors on and from 19-2-1983 cannot be questioned. The disputed period is only between 28-2-1976 and 19-2-1983. According to us, it will not be proper for this Court to upset and unsettle position at this late stage. Nor is it in public interest to do so. The orders passed are in no way erroneous on merits. Taking all facts and circumstances into consideration, we direct that no actions or proceedings shall be entertained for refund of amounts which have already been realised as damages from the employers concerned. However, if from some employers, the damages under Section 85-B(1), on the basis of orders passed by the Regional Directors between 3-5-1976 and 19-2-1983 have not yet been realised, they shall not be realised. In such cases, it will be open for the Regional Directors to issue fresh notices and assess and recover the damages, if any | 1 | 3,269 | 1,323 | ### 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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Regional Directors, Assistant Regional Directors and other officers mentioned in the resolution by designations. Neither any grievance has been made nor can it be made so far as this resolution is concerned because the Corporation has directly delegated its power under Section 85-B to different officers with reference to their designations, throughout the country, and no power is given in this resolution to the Director General to authorise any other officer to levy and recover damages from the employers 12. It has to be borne in mind that the exercise of the power under Section 85-B(1) is quasi-judicial in nature, because there is always a scope for controversy and dispute and that is why the section itself requires that before recovering any such damages, a reasonable opportunity of being heard shall be given to the employer. The employer is entitled to raise any objection consistent with the provisions of the Act. Those objections have to be considered. After consideration of objections, if any, an order for recovery of damages has to be passed. The maxim delegatus non-potest delegare was originally invoked in the context of delegation of judicial powers saying that in the entire process of adjudication a judge must act personally except insofar as he is expressly absolved from his duty by a statute. The basic principle behind the aforesaid maxim is that "a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute". (Vide John Willis, "Delegatus non-potest delegare, (1943) 21 Can. Bar Rev. 257, 259) "13. It cannot be disputed that by the impugned resolution dated 28-2-1976 the Corporation not only delegated its power under Section 85-B(1) of the Act to the Director General, but also left it to the Director General to authorise any other officer to exercise the power under Section 85-B(1). From Section 94-A it does not appear that Parliament vested power in the Corporation to delegate its power on any officer or authority subordinate to the Corporation, and also vested power in the Corporation to empower such officer or authority, to authorise any other officer to exercise the said power under Section 85-B(1). If Section 94-A had a provision enabling the Corporation not only to delegate its power to any other officer or authority subordinate to the Corporation, but also to empower such officer or authority in its own turn to authorise any other officer to exercise that power, the resolution could have been sustained on the principle indicated in the cases Harishankar Bagla v. State of M. P. and Barium Chemicals Ltd. v. Company Law Board. As such it has to be held that the part of the resolution dated 28-2-1976, which authorises the Director General to permit any other officer to exercise the power under Section 85-B(1) of the Act is ultra vires Section 94-A14. It is an admitted position that the Regional Directors have exercised the power under Section 85-B(1) of the Act while passing the impugned orders for recovery of the damages from the appellants. The Regional Directors had been authorised to do so by the Director General of the Corporation by an office order dated 3-5-1976 made on the basis of the aforesaid resolution of the Corporation dated 28-2-1976. Once that part of the earlier resolution is held as invalid, the office order dated 3-5-1976 issued by the Director General also becomes invalid. The Regional Directors therefore could not have passed the impugned orders on the basis of the invalid office order dated 3-5-197615. Hence the view taken in the case of Rameshwar Jute Mills Ltd. v. Union of India by the Full Bench of the Patna High Court as well as in the case of Employees State Insurance Corpn. v. Dhanda Engineers Pvt. Ltd., by a Division Bench of the Punjab and Haryana High Court upholding the resolution dated 28-2-1976 and office order dated 3-5-1976 cannot be sustained and the opinion expressed in the case of Employees State Insurance Corpn., Bangalore v. Shoba Engineers, by a Division Bench of the Karnataka High Court, that the aforesaid resolution dated 28-2-1976 and office order dated 3-5-1976 was invalid has to be upheld16. Unfortunately, these appeals have remained pending in this Court for the last many years and in the meantime, on the basis of the resolution dated 28-2-1976 and office order dated 3-5-1976 the different Regional Directors of the Corporation in different parts of the country have exercised power under Section 85-B(1) of the Act for recovery of the damages from different employers. That exercise of power had been upheld by a Full Bench of Patna High Court and a Division Bench of the Punjab and Haryana High Court referred to above. In this background, it be improper to declare all such actions taken by the different Regional Directors as invalid. The Corporation has itself, later by its resolution dated 19-2-1983 superseded and recalled the aforesaid resolution dated 28-2-1976. As such, any exercise of power by the Regional Directors on and from 19-2-1983 cannot be questioned. The disputed period is only between 28-2-1976 and 19-2-1983. According to us, it will not be proper for this Court to upset and unsettle position at this late stage. Nor is it in public interest to do so. The orders passed are in no way erroneous on merits. Taking all facts and circumstances into consideration, we direct that no actions or proceedings shall be entertained for refund of amounts which have already been realised as damages from the employers concerned. However, if from some employers, the damages under Section 85-B(1), on the basis of orders passed by the Regional Directors between 3-5-1976 and 19-2-1983 have not yet been realised, they shall not be realised. In such cases, it will be open for the Regional Directors to issue fresh notices and assess and recover the damages, if any
### Response:
1
### Explanation:
sub-delegate the exercise of the said power to any other officer, the last part of the resolution dated 28-2-1976 cannot be held to be within the framework of Section 94-A. According to us, parliament while introducing Section 94-A in the Act, only conceived direct delegation by the Corporation to different officers or authorities, subordinate to the Corporation, and there is no scope for such delegate to sub-delegate that power, by authorising any other officer to exercise or perform the power soIt has to be borne in mind that the exercise of the power under Section 85-B(1) is quasi-judicial in nature, because there is always a scope for controversy and dispute and that is why the section itself requires that before recovering any such damages, a reasonable opportunity of being heard shall be given to the employer. The employer is entitled to raise any objection consistent with the provisions of the Act. Those objections have to be considered. After consideration of objections, if any, an order for recovery of damages has to be passed. The maxim delegatus non-potest delegare was originally invoked in the context of delegation of judicial powers saying that in the entire process of adjudication a judge must act personally except insofar as he is expressly absolved from his duty by a statute. The basic principle behind the aforesaid maxim is that "a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute". (Vide John Willis, "Delegatus non-potest delegare, (1943) 21 Can. Bar Rev. 257, 259) "13. It cannot be disputed that by the impugned resolution dated 28-2-1976 the Corporation not only delegated its power under Section 85-B(1) of the Act to the Director General, but also left it to the Director General to authorise any other officer to exercise the power under Section 85-B(1). From Section 94-A it does not appear that Parliament vested power in the Corporation to delegate its power on any officer or authority subordinate to the Corporation, and also vested power in the Corporation to empower such officer or authority, to authorise any other officer to exercise the said power under Section 85-B(1). If Section 94-A had a provision enabling the Corporation not only to delegate its power to any other officer or authority subordinate to the Corporation, but also to empower such officer or authority in its own turn to authorise any other officer to exercise that power, the resolution could have been sustained on the principle indicated in the cases Harishankar Bagla v. State of M. P. and Barium Chemicals Ltd. v. Company Law Board. As such it has to be held that the part of the resolution dated 28-2-1976, which authorises the Director General to permit any other officer to exercise the power under Section 85-B(1) of the Act is ultra vires Section 94-A14. It is an admitted position that the Regional Directors have exercised the power under Section 85-B(1) of the Act while passing the impugned orders for recovery of the damages from the appellants. The Regional Directors had been authorised to do so by the Director General of the Corporation by an office order dated 3-5-1976 made on the basis of the aforesaid resolution of the Corporation dated 28-2-1976. Once that part of the earlier resolution is held as invalid, the office order dated 3-5-1976 issued by the Director General also becomes invalid. The Regional Directors therefore could not have passed the impugned orders on the basis of the invalid office order dated 3-5-197615. Hence the view taken in the case of Rameshwar Jute Mills Ltd. v. Union of India by the Full Bench of the Patna High Court as well as in the case of Employees State Insurance Corpn. v. Dhanda Engineers Pvt. Ltd., by a Division Bench of the Punjab and Haryana High Court upholding the resolution dated 28-2-1976 and office order dated 3-5-1976 cannot be sustained and the opinion expressed in the case of Employees State Insurance Corpn., Bangalore v. Shoba Engineers, by a Division Bench of the Karnataka High Court, that the aforesaid resolution dated 28-2-1976 and office order dated 3-5-1976 was invalid has to be upheld16. Unfortunately, these appeals have remained pending in this Court for the last many years and in the meantime, on the basis of the resolution dated 28-2-1976 and office order dated 3-5-1976 the different Regional Directors of the Corporation in different parts of the country have exercised power under Section 85-B(1) of the Act for recovery of the damages from different employers. That exercise of power had been upheld by a Full Bench of Patna High Court and a Division Bench of the Punjab and Haryana High Court referred to above. In this background, it be improper to declare all such actions taken by the different Regional Directors as invalid. The Corporation has itself, later by its resolution dated 19-2-1983 superseded and recalled the aforesaid resolution dated 28-2-1976. As such, any exercise of power by the Regional Directors on and from 19-2-1983 cannot be questioned. The disputed period is only between 28-2-1976 and 19-2-1983. According to us, it will not be proper for this Court to upset and unsettle position at this late stage. Nor is it in public interest to do so. The orders passed are in no way erroneous on merits. Taking all facts and circumstances into consideration, we direct that no actions or proceedings shall be entertained for refund of amounts which have already been realised as damages from the employers concerned. However, if from some employers, the damages under Section 85-B(1), on the basis of orders passed by the Regional Directors between 3-5-1976 and 19-2-1983 have not yet been realised, they shall not be realised. In such cases, it will be open for the Regional Directors to issue fresh notices and assess and recover the damages, if any
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Bajaj Auto Limited Vs. State of Maharashtra & Others | right as a fundamental right to the citizens of this country. This aspect needs to be kept in mind while interpreting the provisions of the Act.23. The relevant portion of Article 19 of the Constitution of India is as under:"19. Protection of certain rights regarding freedom of speech, etc. - (1) All citizens shall have the right (a) . . . .(b) . . . .(c) to form associations or unions or co-operative societies.(d) . . . .(e) . . . .(g) . . . .(2) . . . .(3) . . . .(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause."In the case reported as (2011) 9 SCC 286 (A.P. Dairy Development Corporation Federation v. B. Narasimha Reddy), the Apex Court has discussed the aforesaid portion of Article 19 and it is observed by the Apex Court that all the citizens have right to form association of their choice (underlined by us) voluntarily, subject to reasonable restrictions imposed by law. At para No.26 following observations are made:"26. Therefore, the freedom guaranteed under Article 19(1)(c) is not restricted merely to the formation of the association, but to the effective functioning of the association so as to enable it to achieve the lawful objectives."The aforesaid Article which gives fundamental right to the citizens of this country and the observations made by the Apex Court show that for effective functioning of the association/union if registration is necessary, registration needs to be allowed. In a case like the present one if registration is not allowed, the Union will not be able to achieve its lawful objectives. In the present matter it cannot be said that the objective of the Union which is already quoted was unlawful. When in section 22 of the Act the scope which is already discussed is also given, though it may be to the office bearers, it needs to be kept in mind that, that scope is much wider than what the members of the present Union are claiming. In view of these circumstances and as it is a fundamental right, it is difficult to accept that there should be strict compliance of the provision of section 4 of the Act. In the case like present one, ex-employees who want to enforce their right by proving that they were illegally terminated and they have right of reinstatement, they need to be treated as the employees, the persons described in section 4 of the Act.24. From the practical angle also present case needs to be seen. If on the date of the registration of the present Union, there were two registered Unions but of the permanent employees of the appellant-company, those registered Unions will not be interested to espouse the cause of the members of the respondent-Union. As already observed, the members of the respondent-Union cannot be compelled to join the Union of permanent employees who may have adverse interest against the temporary employees. The members of the respondent-Union had worked for more than 10 years as temporary employees and in view of the facts of the present matter there was no other alternative before them than to come together and form the Union like the respondent-Union. If the registration of such Union is denied, ordinarily it will amount to preventing such ex-employees from formation of Union which can act effectively. In view of the fact that it is a fundamental right of such persons, the construction which will give benefit to such persons needs to be accepted as that construction will be only the rational construction.25. At the time of interpretation of the provisions of the Act it also needs to be kept in mind that after the registration, the Trade Union gets many rights under many labour laws like Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. It is required to be kept in mind that the employees or the ex-employees who cannot approach court for any reason can get the protection of such Trade Union as the Trade Union, which is registered, can take appropriate steps for protecting the rights and interests of employees and also ex-employees. Further, the Trade Union if registered can represent all the employees in such undertaking. In section 10(b) of the Act it is provided that registration can be cancelled if Trade Union has ceased to exit or when the registered Trade Union fails to comply with the conditions laid down in the aforesaid provisions. For all these reasons this Court holds that the employer, in ordinary course, is not expected to object the registration of such Trade Union.26. The learned counsel for the respondent, registered Trade Union placed reliance on some observations made by the Apex Court in the case reported as (2015 (2) AIR BOM R (S.C.) 278 (R.G. Dsouza vs. Poona Employees Union & Anr) (cited supra). In this case the Apex Court has laid down in paragraphs 17, 18 and 19 that if certificate of registration is granted by the Registrar by mistake, due to incorrect assessment on non application of mind or mechanical act on the part of the authority, that circumstance is not covered by section 10 of the Act. There cannot be dispute over this proposition. In the present matter, different point is raised by the appellant like non fulfillment of conditions mentioned in sections 4 and 22 of the Act for allowing registration of Trade Union. In view of the aforesaid discussion this Court has no hesitation to observe that there are no merits in the Letters Patent Appeal and though the reasons are not exhaustively given by the learned Single Judge, the learned Single Judge has not committed any error in deciding the matter against the appellant. | 0[ds]The aforesaid Article which gives fundamental right to the citizens of this country and the observations made by the Apex Court show that for effective functioning of the association/union if registration is necessary, registration needs to be allowed. In a case like the present one if registration is not allowed, the Union will not be able to achieve its lawful objectives. In the present matter it cannot be said that the objective of the Union which is already quoted was unlawful. When in section 22 of the Act the scope which is already discussed is also given, though it may be to the office bearers, it needs to be kept in mind that, that scope is much wider than what the members of the present Union are claiming. In view of these circumstances and as it is a fundamental right, it is difficult to accept that there should be strict compliance of the provision of section 4 of the Act. In the case like present one,who want to enforce their right by proving that they were illegally terminated and they have right of reinstatement, they need to be treated as the employees, the persons described in section 4 of the Act.24. From the practical angle also present case needs to be seen. If on the date of the registration of the present Union, there were two registered Unions but of the permanent employees of thethose registered Unions will not be interested to espouse the cause of the members of theAs already observed, the members of thecannot be compelled to join the Union of permanent employees who may have adverse interest against the temporary employees. The members of thehad worked for more than 10 years as temporary employees and in view of the facts of the present matter there was no other alternative before them than to come together and form the Union like theIf the registration of such Union is denied, ordinarily it will amount to preventing suchfrom formation of Union which can act effectively. In view of the fact that it is a fundamental right of such persons, the construction which will give benefit to such persons needs to be accepted as that construction will be only the rational construction.25. At the time of interpretation of the provisions of the Act it also needs to be kept in mind that after the registration, the Trade Union gets many rights under many labour laws like Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. It is required to be kept in mind that the employees or thewho cannot approach court for any reason can get the protection of such Trade Union as the Trade Union, which is registered, can take appropriate steps for protecting the rights and interests of employees and alsoFurther, the Trade Union if registered can represent all the employees in such undertaking. In section 10(b) of the Act it is provided that registration can be cancelled if Trade Union has ceased to exit or when the registered Trade Union fails to comply with the conditions laid down in the aforesaid provisions. For all these reasons this Court holds that the employer, in ordinary course, is not expected to object the registration of such Trade Union.26. The learned counsel for the respondent, registered Trade Union placed reliance on some observations made by the Apex Court in the case reported as (2015 (2) AIR BOM R (S.C.) 278 (R.G. Dsouza vs. Poona Employees UnionAnr) (cited supra). In this case the Apex Court has laid down in paragraphs 17, 18 and 19 that if certificate of registration is granted by the Registrar by mistake, due to incorrect assessment on non application of mind or mechanical act on the part of the authority, that circumstance is not covered by section 10 of the Act. There cannot be dispute over this proposition. In the present matter, different point is raised by the appellant like non fulfillment of conditions mentioned in sections 4 and 22 of the Act for allowing registration of Trade Union. In view of the aforesaid discussion this Court has no hesitation to observe that there are no merits in the Letters Patent Appeal and though the reasons are not exhaustively given by the learned Single Judge, the learned Single Judge has not committed any error in deciding the matter against the appellant. | 0 | 5,786 | 793 | ### 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:
right as a fundamental right to the citizens of this country. This aspect needs to be kept in mind while interpreting the provisions of the Act.23. The relevant portion of Article 19 of the Constitution of India is as under:"19. Protection of certain rights regarding freedom of speech, etc. - (1) All citizens shall have the right (a) . . . .(b) . . . .(c) to form associations or unions or co-operative societies.(d) . . . .(e) . . . .(g) . . . .(2) . . . .(3) . . . .(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause."In the case reported as (2011) 9 SCC 286 (A.P. Dairy Development Corporation Federation v. B. Narasimha Reddy), the Apex Court has discussed the aforesaid portion of Article 19 and it is observed by the Apex Court that all the citizens have right to form association of their choice (underlined by us) voluntarily, subject to reasonable restrictions imposed by law. At para No.26 following observations are made:"26. Therefore, the freedom guaranteed under Article 19(1)(c) is not restricted merely to the formation of the association, but to the effective functioning of the association so as to enable it to achieve the lawful objectives."The aforesaid Article which gives fundamental right to the citizens of this country and the observations made by the Apex Court show that for effective functioning of the association/union if registration is necessary, registration needs to be allowed. In a case like the present one if registration is not allowed, the Union will not be able to achieve its lawful objectives. In the present matter it cannot be said that the objective of the Union which is already quoted was unlawful. When in section 22 of the Act the scope which is already discussed is also given, though it may be to the office bearers, it needs to be kept in mind that, that scope is much wider than what the members of the present Union are claiming. In view of these circumstances and as it is a fundamental right, it is difficult to accept that there should be strict compliance of the provision of section 4 of the Act. In the case like present one, ex-employees who want to enforce their right by proving that they were illegally terminated and they have right of reinstatement, they need to be treated as the employees, the persons described in section 4 of the Act.24. From the practical angle also present case needs to be seen. If on the date of the registration of the present Union, there were two registered Unions but of the permanent employees of the appellant-company, those registered Unions will not be interested to espouse the cause of the members of the respondent-Union. As already observed, the members of the respondent-Union cannot be compelled to join the Union of permanent employees who may have adverse interest against the temporary employees. The members of the respondent-Union had worked for more than 10 years as temporary employees and in view of the facts of the present matter there was no other alternative before them than to come together and form the Union like the respondent-Union. If the registration of such Union is denied, ordinarily it will amount to preventing such ex-employees from formation of Union which can act effectively. In view of the fact that it is a fundamental right of such persons, the construction which will give benefit to such persons needs to be accepted as that construction will be only the rational construction.25. At the time of interpretation of the provisions of the Act it also needs to be kept in mind that after the registration, the Trade Union gets many rights under many labour laws like Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. It is required to be kept in mind that the employees or the ex-employees who cannot approach court for any reason can get the protection of such Trade Union as the Trade Union, which is registered, can take appropriate steps for protecting the rights and interests of employees and also ex-employees. Further, the Trade Union if registered can represent all the employees in such undertaking. In section 10(b) of the Act it is provided that registration can be cancelled if Trade Union has ceased to exit or when the registered Trade Union fails to comply with the conditions laid down in the aforesaid provisions. For all these reasons this Court holds that the employer, in ordinary course, is not expected to object the registration of such Trade Union.26. The learned counsel for the respondent, registered Trade Union placed reliance on some observations made by the Apex Court in the case reported as (2015 (2) AIR BOM R (S.C.) 278 (R.G. Dsouza vs. Poona Employees Union & Anr) (cited supra). In this case the Apex Court has laid down in paragraphs 17, 18 and 19 that if certificate of registration is granted by the Registrar by mistake, due to incorrect assessment on non application of mind or mechanical act on the part of the authority, that circumstance is not covered by section 10 of the Act. There cannot be dispute over this proposition. In the present matter, different point is raised by the appellant like non fulfillment of conditions mentioned in sections 4 and 22 of the Act for allowing registration of Trade Union. In view of the aforesaid discussion this Court has no hesitation to observe that there are no merits in the Letters Patent Appeal and though the reasons are not exhaustively given by the learned Single Judge, the learned Single Judge has not committed any error in deciding the matter against the appellant.
### Response:
0
### Explanation:
The aforesaid Article which gives fundamental right to the citizens of this country and the observations made by the Apex Court show that for effective functioning of the association/union if registration is necessary, registration needs to be allowed. In a case like the present one if registration is not allowed, the Union will not be able to achieve its lawful objectives. In the present matter it cannot be said that the objective of the Union which is already quoted was unlawful. When in section 22 of the Act the scope which is already discussed is also given, though it may be to the office bearers, it needs to be kept in mind that, that scope is much wider than what the members of the present Union are claiming. In view of these circumstances and as it is a fundamental right, it is difficult to accept that there should be strict compliance of the provision of section 4 of the Act. In the case like present one,who want to enforce their right by proving that they were illegally terminated and they have right of reinstatement, they need to be treated as the employees, the persons described in section 4 of the Act.24. From the practical angle also present case needs to be seen. If on the date of the registration of the present Union, there were two registered Unions but of the permanent employees of thethose registered Unions will not be interested to espouse the cause of the members of theAs already observed, the members of thecannot be compelled to join the Union of permanent employees who may have adverse interest against the temporary employees. The members of thehad worked for more than 10 years as temporary employees and in view of the facts of the present matter there was no other alternative before them than to come together and form the Union like theIf the registration of such Union is denied, ordinarily it will amount to preventing suchfrom formation of Union which can act effectively. In view of the fact that it is a fundamental right of such persons, the construction which will give benefit to such persons needs to be accepted as that construction will be only the rational construction.25. At the time of interpretation of the provisions of the Act it also needs to be kept in mind that after the registration, the Trade Union gets many rights under many labour laws like Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. It is required to be kept in mind that the employees or thewho cannot approach court for any reason can get the protection of such Trade Union as the Trade Union, which is registered, can take appropriate steps for protecting the rights and interests of employees and alsoFurther, the Trade Union if registered can represent all the employees in such undertaking. In section 10(b) of the Act it is provided that registration can be cancelled if Trade Union has ceased to exit or when the registered Trade Union fails to comply with the conditions laid down in the aforesaid provisions. For all these reasons this Court holds that the employer, in ordinary course, is not expected to object the registration of such Trade Union.26. The learned counsel for the respondent, registered Trade Union placed reliance on some observations made by the Apex Court in the case reported as (2015 (2) AIR BOM R (S.C.) 278 (R.G. Dsouza vs. Poona Employees UnionAnr) (cited supra). In this case the Apex Court has laid down in paragraphs 17, 18 and 19 that if certificate of registration is granted by the Registrar by mistake, due to incorrect assessment on non application of mind or mechanical act on the part of the authority, that circumstance is not covered by section 10 of the Act. There cannot be dispute over this proposition. In the present matter, different point is raised by the appellant like non fulfillment of conditions mentioned in sections 4 and 22 of the Act for allowing registration of Trade Union. In view of the aforesaid discussion this Court has no hesitation to observe that there are no merits in the Letters Patent Appeal and though the reasons are not exhaustively given by the learned Single Judge, the learned Single Judge has not committed any error in deciding the matter against the appellant.
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M/S. Krishnamurthi & Co. Etc Vs. State Of Madras & Anr | 1949 and stated that the notification shall always be deemed to have meant like that. One of the contentions raised in that case was that the retrospective operation of the impugned section should be struck down as unconstitutional because it imposed unreasonable restrictions on the petitioners fundamental right under article 19 (1) (g).This contention did not find favour with this Court and it was observed that a legislation could not be struck down although the retrospective operation might operate harshly in some cases.12. In the case of J. K. Jute Mills Co. Ltd. v. State of Uttar Pradesh, (1962) 2 SCR 1 = (AIR 1961 SC 1534 ) this Court referred to the earlier case of Union of India v. Madan Gopal Kabra, 1954 SCR 541 = (AIR 1954 SC 158 ) and held that the power to make retrospective legislation in cases relating to tax on sale of goods was the same as in the case of income tax. It was observed:"The power of a legislature to enact a law with reference to a topic entrusted to it, is, as already stated, unqualified subject only to any limitation imposed by the Constitution. In the exercise of such a power, it will be competent for the legislature to enact a law, which is either prospective or retrospective. In the Union of India v. Madan Gopal (supra) it was held by this Court that the power to impose tax on income under entry 82 of List I in Schedule VII to the Constitution, comprehended the power to impose income-tax with retrospective operation even for a period prior to the Constitution. The position will be the same as regards laws imposing tax on sale of goods.13. Mr. Setalvad has referred to the fact that the appellants did not realise the sale tax on the sale of furnance oil at the rate of 6 per cent during at least some part of the period for which retrospective operation had been given to the amending Act. It is contended that this fact should weigh with this Court in striking down the provisions of the amending Act. There is, in our opinion, no force in this contention.The fact that a dealer is not in a position to pass on the sales tax to others does not affect the competence of the legislature to enact a law imposing sales tax retrospectively because that is a matter of legislative policy.A similar argument was advanced in the case of M/s. J. K. Jute Mills Co. Ltd. (1962) 2 SCR 1 = (AIR 1961 SC 1534 ) (supra). and was repelled in the following words:"And then it is argued that a sales tax being an indirect tax, the seller who pays that tax has the right to pass it on to the consumer, that a law which imposes a sales tax long after the sales had taken place deprives him of that right, that retrospective operation is, in consequence, an incident inconsistent with the true character of a sales tax law, and that the Validation Act is, therefore, not a law in respect of tax on the sale of goods, as recognised, and it is ultra vires entry 54. We see no force in this contention. It is no doubt true that a sales tax is, according to accepted notions, intended to be passed on to the buyer, and provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation. But it is not an essential characteristic of a sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the legislature to impose a tax on sales conditional on its making a provision for sellers to collect the tax from the purchasers. Whether a law should be enacted, imposing a sales tax, or validating the imposition of a sales tax, when the seller is not in a position to pass it on to the consumer, is a matter of policy and does not affect the competence of the legislature. This question is concluded by the decision of this Court in The Tata Iron and Steel Co. Ltd. v. State of Bihar, (1958) SCR 1355 = (AIR 1958 SC 452 ).14. In the case of Jaora Sugar Mills (P) Ltd. v. State of Madhya Pradesh, (1966) 1 SCR 523 = (AIR 196 SC 416) this Court dealt with the validity of S. 3 of the Sugar Cane Cess (Validation ) Act, 1961 (Central Act 38 of 1961). The said section concerned the levy of sugar cane cess and provided that "all cesses imposed, assessed or collected under any State Act before the commencement of this Act, shall be deemed to have been validly imposed, assessed or collected in accordance with law as if the provisions of the said Act and of notifications, orders and rules issued or made thereunder in so far as such provisions relate to the imposition, assessment and collection of such cess had been included in and formed part of the section and this section had been enforced at all material times when such cess was imposed, assessed or collected. Earlier the State Act under which the sugar cane cess had been levied was found to be invalid on the ground of want of legislative competence to deal with topics covered by it. The attack on the validity of Section 3 of that Act was repelled and it was held that the Parliament could, in exercise of its legislative competence, pass a law retrospectively validating the collections made under the State statutes. The present case is on a stronger footing from the point of view of the respondents because we are dealing in this case with retrospective legislation made by the same legislature which had enacted the earlier law. We are, therefore, of the opinion that the impugned provisions are a valid piece of legislation and do not contravene article 19 of the Constitution.15 | 0[ds]14. In the case of Jaora Sugar Mills (P) Ltd. v. State of Madhya Pradesh, (1966) 1 SCR 523 = (AIR 196 SC 416) this Court dealt with the validity of S. 3 of the Sugar Cane Cess (Validation ) Act, 1961 (Central Act 38 of 1961). The said section concerned the levy of sugar cane cess and provided that "all cesses imposed, assessed or collected under any State Act before the commencement of this Act, shall be deemed to have been validly imposed, assessed or collected in accordance with law as if the provisions of the said Act and of notifications, orders and rules issued or made thereunder in so far as such provisions relate to the imposition, assessment and collection of such cess had been included in and formed part of the section and this section had been enforced at all material times when such cess was imposed, assessed or collected. Earlier the State Act under which the sugar cane cess had been levied was found to be invalid on the ground of want of legislative competence to deal with topics covered by it. The attack on the validity of Section 3 of that Act was repelled and it was held that the Parliament could, in exercise of its legislative competence, pass a law retrospectively validating the collections made under the State statutes. The present case is on a stronger footing from the point of view of the respondents because we are dealing in this case with retrospective legislation made by the same legislature which had enacted the earlier law. We are, therefore, of the opinion that the impugned provisions are a valid piece of legislation and do not contravene article 19 of the Constitution. | 0 | 4,824 | 320 | ### Instruction:
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1949 and stated that the notification shall always be deemed to have meant like that. One of the contentions raised in that case was that the retrospective operation of the impugned section should be struck down as unconstitutional because it imposed unreasonable restrictions on the petitioners fundamental right under article 19 (1) (g).This contention did not find favour with this Court and it was observed that a legislation could not be struck down although the retrospective operation might operate harshly in some cases.12. In the case of J. K. Jute Mills Co. Ltd. v. State of Uttar Pradesh, (1962) 2 SCR 1 = (AIR 1961 SC 1534 ) this Court referred to the earlier case of Union of India v. Madan Gopal Kabra, 1954 SCR 541 = (AIR 1954 SC 158 ) and held that the power to make retrospective legislation in cases relating to tax on sale of goods was the same as in the case of income tax. It was observed:"The power of a legislature to enact a law with reference to a topic entrusted to it, is, as already stated, unqualified subject only to any limitation imposed by the Constitution. In the exercise of such a power, it will be competent for the legislature to enact a law, which is either prospective or retrospective. In the Union of India v. Madan Gopal (supra) it was held by this Court that the power to impose tax on income under entry 82 of List I in Schedule VII to the Constitution, comprehended the power to impose income-tax with retrospective operation even for a period prior to the Constitution. The position will be the same as regards laws imposing tax on sale of goods.13. Mr. Setalvad has referred to the fact that the appellants did not realise the sale tax on the sale of furnance oil at the rate of 6 per cent during at least some part of the period for which retrospective operation had been given to the amending Act. It is contended that this fact should weigh with this Court in striking down the provisions of the amending Act. There is, in our opinion, no force in this contention.The fact that a dealer is not in a position to pass on the sales tax to others does not affect the competence of the legislature to enact a law imposing sales tax retrospectively because that is a matter of legislative policy.A similar argument was advanced in the case of M/s. J. K. Jute Mills Co. Ltd. (1962) 2 SCR 1 = (AIR 1961 SC 1534 ) (supra). and was repelled in the following words:"And then it is argued that a sales tax being an indirect tax, the seller who pays that tax has the right to pass it on to the consumer, that a law which imposes a sales tax long after the sales had taken place deprives him of that right, that retrospective operation is, in consequence, an incident inconsistent with the true character of a sales tax law, and that the Validation Act is, therefore, not a law in respect of tax on the sale of goods, as recognised, and it is ultra vires entry 54. We see no force in this contention. It is no doubt true that a sales tax is, according to accepted notions, intended to be passed on to the buyer, and provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation. But it is not an essential characteristic of a sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the legislature to impose a tax on sales conditional on its making a provision for sellers to collect the tax from the purchasers. Whether a law should be enacted, imposing a sales tax, or validating the imposition of a sales tax, when the seller is not in a position to pass it on to the consumer, is a matter of policy and does not affect the competence of the legislature. This question is concluded by the decision of this Court in The Tata Iron and Steel Co. Ltd. v. State of Bihar, (1958) SCR 1355 = (AIR 1958 SC 452 ).14. In the case of Jaora Sugar Mills (P) Ltd. v. State of Madhya Pradesh, (1966) 1 SCR 523 = (AIR 196 SC 416) this Court dealt with the validity of S. 3 of the Sugar Cane Cess (Validation ) Act, 1961 (Central Act 38 of 1961). The said section concerned the levy of sugar cane cess and provided that "all cesses imposed, assessed or collected under any State Act before the commencement of this Act, shall be deemed to have been validly imposed, assessed or collected in accordance with law as if the provisions of the said Act and of notifications, orders and rules issued or made thereunder in so far as such provisions relate to the imposition, assessment and collection of such cess had been included in and formed part of the section and this section had been enforced at all material times when such cess was imposed, assessed or collected. Earlier the State Act under which the sugar cane cess had been levied was found to be invalid on the ground of want of legislative competence to deal with topics covered by it. The attack on the validity of Section 3 of that Act was repelled and it was held that the Parliament could, in exercise of its legislative competence, pass a law retrospectively validating the collections made under the State statutes. The present case is on a stronger footing from the point of view of the respondents because we are dealing in this case with retrospective legislation made by the same legislature which had enacted the earlier law. We are, therefore, of the opinion that the impugned provisions are a valid piece of legislation and do not contravene article 19 of the Constitution.15
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### Explanation:
14. In the case of Jaora Sugar Mills (P) Ltd. v. State of Madhya Pradesh, (1966) 1 SCR 523 = (AIR 196 SC 416) this Court dealt with the validity of S. 3 of the Sugar Cane Cess (Validation ) Act, 1961 (Central Act 38 of 1961). The said section concerned the levy of sugar cane cess and provided that "all cesses imposed, assessed or collected under any State Act before the commencement of this Act, shall be deemed to have been validly imposed, assessed or collected in accordance with law as if the provisions of the said Act and of notifications, orders and rules issued or made thereunder in so far as such provisions relate to the imposition, assessment and collection of such cess had been included in and formed part of the section and this section had been enforced at all material times when such cess was imposed, assessed or collected. Earlier the State Act under which the sugar cane cess had been levied was found to be invalid on the ground of want of legislative competence to deal with topics covered by it. The attack on the validity of Section 3 of that Act was repelled and it was held that the Parliament could, in exercise of its legislative competence, pass a law retrospectively validating the collections made under the State statutes. The present case is on a stronger footing from the point of view of the respondents because we are dealing in this case with retrospective legislation made by the same legislature which had enacted the earlier law. We are, therefore, of the opinion that the impugned provisions are a valid piece of legislation and do not contravene article 19 of the Constitution.
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The State (GNCT of Delhi) Narcotics Control Bureau Vs. Lokesh Chadha | grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. It was urged that in a case such as a present where the conviction is under the provisions of Sections 23(c) and 25A of the NDPS Act, the requirement of Section 37 that there are reasonable grounds for believing that he is not guilty of such offence must apply a fortiori because the trial Court after conducting a trial has, on the basis of the evidence which is adduced, come to the conclusion that the offence has been established. In the present case, it was urged that absolutely no reasons have been indicated by the learned Single Judge of the High Court for granting bail, save and except for a vague reference to the facts and circumstances of the case, the period undergone by the respondent and the fact that the appeal was not likely to be taken for hearing in the near future due to the disruption caused by the Covid-19 pandemic. 8. On the other hand, Ms Nidhi, learned counsel appearing through the Supreme Court Legal Services Committee to represent the respondent, has adverted to the judgment of the Trial Judge and submitted that prima facie the involvement of the respondent would not stand established. That apart, it has been submitted that the respondent has undergone about four years and four months of imprisonment and the High Court having exercised its discretion to grant bail, a case for interference has not been made out. 9. While considering the rival submissions, we must at the outset advert to the manner in which the learned Single Judge of the High Court has dealt with the application for suspension of sentence under Section 389(1) of CrPC. The offence of which the respondent has been convicted by the Special Judge arises out of the provisions of Sections 23(c) and 25A of the NDPS Act. The findings of the learned Special Judge which have been arrived at after a trial on the basis of evidence which has been adduced indicate that the respondent who was a proprietor of a courier agency was complicit with a foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act. At this stage, we will refer to the decision of a two-Judge Bench of this Court in Preet Pal Singh v State of Uttar Pradesh (2020) 8 SCC 645 where Justice Indira Banerjee, speaking for the Court, observed as follows: 35. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post-conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr. (supra). However, in case of post- conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C. 10. The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v Rajesh (2020) 12 SCC 122 . The High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) of CrPC was established. The order granting suspension of sentence under Section 389(1) of CrPC is unsustainable and would accordingly have to be set aside. 11. While concluding, however, we hasten to add that our observations are confined to the question as to whether a case for suspension of sentence was made out and shall not affect the merits of the case when the appeal comes up for hearing before the High Court. | 1[ds]9. While considering the rival submissions, we must at the outset advert to the manner in which the learned Single Judge of the High Court has dealt with the application for suspension of sentence under Section 389(1) of CrPC. The offence of which the respondent has been convicted by the Special Judge arises out of the provisions of Sections 23(c) and 25A of the NDPS Act. The findings of the learned Special Judge which have been arrived at after a trial on the basis of evidence which has been adduced indicate that the respondent who was a proprietor of a courier agency was complicit with a foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act. At this stage, we will refer to the decision of a two-Judge Bench of this Court in Preet Pal Singh v State of Uttar Pradesh (2020) 8 SCC 645 where Justice Indira Banerjee, speaking for the Court, observed as follows:35. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post-conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr. (supra). However, in case of post- conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C.10. The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v Rajesh (2020) 12 SCC 122 . The High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) of CrPC was established. The order granting suspension of sentence under Section 389(1) of CrPC is unsustainable and would accordingly have to be set aside.11. While concluding, however, we hasten to add that our observations are confined to the question as to whether a case for suspension of sentence was made out and shall not affect the merits of the case when the appeal comes up for hearing before the High Court. | 1 | 1,911 | 820 | ### Instruction:
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grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. It was urged that in a case such as a present where the conviction is under the provisions of Sections 23(c) and 25A of the NDPS Act, the requirement of Section 37 that there are reasonable grounds for believing that he is not guilty of such offence must apply a fortiori because the trial Court after conducting a trial has, on the basis of the evidence which is adduced, come to the conclusion that the offence has been established. In the present case, it was urged that absolutely no reasons have been indicated by the learned Single Judge of the High Court for granting bail, save and except for a vague reference to the facts and circumstances of the case, the period undergone by the respondent and the fact that the appeal was not likely to be taken for hearing in the near future due to the disruption caused by the Covid-19 pandemic. 8. On the other hand, Ms Nidhi, learned counsel appearing through the Supreme Court Legal Services Committee to represent the respondent, has adverted to the judgment of the Trial Judge and submitted that prima facie the involvement of the respondent would not stand established. That apart, it has been submitted that the respondent has undergone about four years and four months of imprisonment and the High Court having exercised its discretion to grant bail, a case for interference has not been made out. 9. While considering the rival submissions, we must at the outset advert to the manner in which the learned Single Judge of the High Court has dealt with the application for suspension of sentence under Section 389(1) of CrPC. The offence of which the respondent has been convicted by the Special Judge arises out of the provisions of Sections 23(c) and 25A of the NDPS Act. The findings of the learned Special Judge which have been arrived at after a trial on the basis of evidence which has been adduced indicate that the respondent who was a proprietor of a courier agency was complicit with a foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act. At this stage, we will refer to the decision of a two-Judge Bench of this Court in Preet Pal Singh v State of Uttar Pradesh (2020) 8 SCC 645 where Justice Indira Banerjee, speaking for the Court, observed as follows: 35. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post-conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr. (supra). However, in case of post- conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C. 10. The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v Rajesh (2020) 12 SCC 122 . The High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) of CrPC was established. The order granting suspension of sentence under Section 389(1) of CrPC is unsustainable and would accordingly have to be set aside. 11. While concluding, however, we hasten to add that our observations are confined to the question as to whether a case for suspension of sentence was made out and shall not affect the merits of the case when the appeal comes up for hearing before the High Court.
### Response:
1
### Explanation:
9. While considering the rival submissions, we must at the outset advert to the manner in which the learned Single Judge of the High Court has dealt with the application for suspension of sentence under Section 389(1) of CrPC. The offence of which the respondent has been convicted by the Special Judge arises out of the provisions of Sections 23(c) and 25A of the NDPS Act. The findings of the learned Special Judge which have been arrived at after a trial on the basis of evidence which has been adduced indicate that the respondent who was a proprietor of a courier agency was complicit with a foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act. At this stage, we will refer to the decision of a two-Judge Bench of this Court in Preet Pal Singh v State of Uttar Pradesh (2020) 8 SCC 645 where Justice Indira Banerjee, speaking for the Court, observed as follows:35. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post-conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr. (supra). However, in case of post- conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C.10. The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v Rajesh (2020) 12 SCC 122 . The High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) of CrPC was established. The order granting suspension of sentence under Section 389(1) of CrPC is unsustainable and would accordingly have to be set aside.11. While concluding, however, we hasten to add that our observations are confined to the question as to whether a case for suspension of sentence was made out and shall not affect the merits of the case when the appeal comes up for hearing before the High Court.
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MEDICAL COUNCIL OF INDIA Vs. LORD BUDDHA EDUCATION SOCIETY | that if the deficiencies of teaching faculty and/or residents are found to be more than 30% and/or bed occupancy less than 50%, College shall not be entitled to make them good and compliance of deficiencies will not be considered for issuance of letter of permission for same academic year. This Court held that compliance verification could not have been ordered in view of Regulation 8(3) (1)(a). The relevant observations in Vedantaa (supra) are extracted hereunder: 10. Though Regulation 8(3)(1)(a) was challenged in the writ petition filed by Respondents 1 and 2, they did not press the relief. They restricted their challenge to the manner in which the inspection was done and for a direction to the appellant-Council to carry out a fresh inspection. The interpretation of Regulation 8(3)(1)(a) by the High Court is patently erroneous inasmuch as the High Court did not take note of the proviso to Regulation 8(3)(1). Without a proper examination of the provision, the High Court fell in error in holding that Regulation 8(3)(1) (a) would be applicable only to the Colleges seeking second renewal i.e. admissions of the third batch. Admissions up to the second renewal i.e. admissions to the third batch would fall under Regulation 8(3)(1)(a). In other words, the proviso is not restricted only to second renewal cases. Even the first renewal is covered by proviso (a) to Regulation 8(3)(1) as the language used is up to second renewal. We do not see any conflict between Section 10-A (3) and (4) of the Act on one hand and Regulation 8(3)(1)(a) on the other. Regulation 8(3)(1) (a) is complementary to Section 10-A of the Act. Fixing minimum standards which have to be fulfilled for the purpose of enabling a medical College to seek fresh inspection would not be contrary to the scheme of Section 10-A. In fact, Regulation 8(3)(1) provides that an opportunity shall be given to the Medical College to rectify the defects. But, the proviso contemplates that certain minimum standards are to be satisfied i.e. there should not be a deficiency of teaching faculty and/or residents more than 30 percent and/or bed occupancy should not be less than 50%. This prescription of standards for availing an opportunity to seek reinspection is not ultra vires either the Regulation or Section 10-A of the Act. 11. On perusal of the material on record, we are of the opinion that the conclusion reached by the High Court regarding the manner in which inspection was conducted is also not correct. Bed occupancy at 45.30 percent on random verification was the claim of Respondents 1 and 2. However, the inspection report shows that out of the required minimum of 300 patients only 3 were available at 10.00 am on 25th September 2017. This Court in Medical Council of India v. Kalinga Institute of Medical Sciences, (2016) 11 SCC 530 has held that medical education must be taken very seriously and when an expert body certifies that the facilities in a medical College are inadequate, it is not for the Courts to interfere with the assessment, except for very cogent jurisdictional reasons such as malafide of the inspection team, ex facie perversity in the inspection, jurisdictional error on the part of the M.C.I., etc. The submission relating to the cyclone being a reason for the number of patients being less is not acceptable. We are in agreement with the submission made on behalf of the Appellant that the Resident Doctors are required to be in the hospital at all points of time. 25. It is apparent that the College had filed successive writ applications in the High Court of Delhi in 2018 but did not pray for fresh inspection in terms of the order passed by this Court knowing fully well that the MCI and the Oversight Committee had decided and again reiterated their decision that due to gross deficiencies found as per Regulation 8(3)(1)(a), compliance verification could not have been made. It was incumbent upon the College to timely press for the relief of considering compliance which it did not insist and thereafter it was too late in the day to order it by the High Court vide impugned order dated 1.8.2018 passed by the High Court even if it was permissible. 26. What this Court intended by passing the order on13.11.2017 was that the College be inspected afresh for the academic year 2018-19 but it was not even in contemplation of this Court at the time what would be the nature of deficiencies to be found on fresh inspection. The observation has to be considered only with respect to when deficiencies have been found to be such, more than 30% of faculty and of residents and/or the bed occupancy is less than 50%, no further compliance verification opportunity has to be given. The decision of this Court cannot be taken to be a decision with respect to it when deficiencies are found to be gross where the proviso to Regulation 8(3)(1) comes into play. The decision of this Court is based on the main provision that ordinarily an opportunity has to be given to removing the deficiencies which are removable not falling within the aforesaid percentage in Regulation 8(3)(1)(a). Thus, Court never intended to bye-pass the provision of Regulation 8(3)(1)(a). It was not ordered that notwithstanding the provision of Regulation 8(3)(1)(a), compliance opportunity is to be afforded. A decision is an authority for the question considered and decided. This Court had not decided the aforesaid aspect nor was it germane as fresh inspection had not been carried out by 13.11.2017. Thus, the observations made by this Court cannot be taken to mean that though deficiencies are found to be more than 30% of faculty and residents and bed occupancy is 50% and notwithstanding the provisions contained in Regulation 8(3)(1)(a), compliance opportunity should be given. Thus, the High Court has erred in law in considering purport of the order of this Court and the ratio of the decision in Vedantaa (supra) was clearly applicable in the case. | 1[ds]15. What emerges from the factual scenario of the case is that the College had never been granted permission by the MCI. The Government of India was compelled to grant permission on the conditional basis that too in view of the direction issued by the Oversight Committee. As there were deficiencies and it was a case of conditional permission, thus deficiencies were required to be removed and thereafter in the inspection that was made in the year 2016 and again in 2017, it was found that the College had not removed the deficiencies and did not fulfill conditions. After the Oversight Committee of this Court decided to grant conditional permission for the academic session 2016-17, the Government of India had to accept it as is apparent from the communication dated 20.8.2016. It was clearly a conditional permission by the Government of Indias order that in case the College was found to be deficient in complying with conditions then it shall be debarred for two academic years. Such conditional permissions are not ordinarily to be granted while a new College is required to be established. Nonetheless, it was granted in the wake of aforesaid facts and circumstances.21. It is apparent from the aforesaid that the petitioner wase that in view of the gross deficiencies found, an opportunity could not have been granted in view of Regulation 8(3)(1)(a). The College filed W.P. [C] No.4897/2018 which was decided by the High Court on 8.5.2018. Following is the order passed by the High Court :Vide the present petition, the petitioners/Institutes have sought to quash of the decision dated 24 th March 2018 passed by respondent no.2, recommending disapproval of the petitioners application to respondent no.1 for renewal/permission of the third batch of MBBS course (150 seats) for the Academic Year. The petitioners have also sought issuance of direction to respondent no.2, to accept the Scheme of the petitioners as submitted for renewal of permission in respect of the aforesaid batch and if necessary grant an opportunity to furnish compliance verification and, therefore, issue a letter of permission.At this stage, learned counsel for the petitioners submits that vide order dated 6 th March 2018, this Court had recorded the undertaking of respondent no. 2/MCI to decide the petitionerspending application and forward the same to respondent no.1 within five weeks. He submits that till date, the respondent no.1 has not informed the petitioners about any decision of respondent no.2.Ms. Arora, who appears on advance notice for the respondent no.1 submits that within ten days of receipt of the recommendations from respondent no.2, the respondent no.1 will pass a final order deciding the petitioners pending application.On the one hand, Mr. T.Singhdev, learned counsel for respondent no.2, submits that its recommendations in respect of the petitioners application have already been sent to respondent no.1 on 13 th April 2018 itself.In view of the categoric statement made by learned counsel for the respondent no.2 that the recommendations have already been forwarded on 13 th April 2018, the respondent no.1 is directed to take a final decision on the petitionersapplication within ten days from today.It is made clear that in case the respondent no.1 is still not in possession of recommendations made by respondent no.2 vide its order dated 13 th April 2018, respondent no.1 would be at liberty to seek immediately a fresh copy of the same from respondent no.2.Needless to say that the said final decision taken by respondent no.1, will be communicated to the petitioner who will be free to take legal recourse as permissible under law.The petition and pending applications are disposed of in the aforesaid terms.It is apparent from the aforesaid order that the College again did not insist that fresh inspection should be carried out and it may be permitted to comply with the deficiencies.23. In view of the gross deficiencies found, no compliance verification could have been made in view of Regulation 8(3)(1)(a). It was already a case of conditional permission which was granted subject to removal of deficiencies and in successive inspections, it was found that the College was not compliant and had not removed the deficiencies. When this Court has passed an order on 13.11.2017, no doubt about it that this Court has observed that inspection should be carried out and College should be given an opportunity to make compliance of deficiencies. In concluding portion it was observed that the decision has to be in accordance with law. This Court never decided the question in case deficiencies were found to be gross as contained in Regulation 8(3)(1)(a) whether the said Regulation has to be ignored. The observations which were made by this Court were obviously based upon the main provision which requires an opportunity to be given unless the deficiencies are such which can be termed to be gross as contemplated in proviso (a) to Regulation 8(3)(1)(a) that has been amended.25. It is apparent thatthe College had filed successive writ applications in the High Court of Delhi in 2018 but did not pray for fresh inspection in terms of the order passed by this Court knowing fully well that the MCI and the Oversight Committee had decided and again reiterated their decision that due to gross deficiencies found as per Regulation 8(3)(1)(a), compliance verification could not have been made. It was incumbent upon the College to timely press for the relief of considering compliance which it did not insist and thereafter it was too late in the day to order it by the High Court vide impugned order dated 1.8.2018 passed by the High Court even if it was permissible.this Court intended by passingafresh for the academic year 2018-19 but it was not even in contemplation of this Court at the time what would be the nature of deficiencies to be found on fresh inspection. The observation has to be considered only with respect to when deficiencies have been found to be such, more than 30% of faculty and of residents and/or the bed occupancy is less than 50%, no further compliance verification opportunity has to be given. The decision of this Court cannot be taken to be a decision with respect to it when deficiencies are found to be gross where the proviso to Regulation 8(3)(1) comes into play. The decision of this Court is based on the main provision that ordinarily an opportunity has to be given to removing the deficiencies which are removable not falling within the aforesaid percentage in Regulation 8(3)(1)(a). Thus, Court never intended to bye-pass the provision of Regulation 8(3)(1)(a). It was not ordered that notwithstanding the provision of Regulation 8(3)(1)(a), compliance opportunity is to be afforded. A decision is an authority for the question considered and decided. This Court had not decided the aforesaid aspect nor was it germane as fresh inspection had not been carried out by 13.11.2017. Thus, the observations made by this Court cannot be taken to mean that though deficiencies are found to be more than 30% of faculty and residents and bed occupancy is 50% and notwithstanding the provisions contained in Regulation 8(3)(1)(a), compliance opportunity should be given. Thus, the High Court has erred in law in considering purport of the order of this Court and the ratio of the decision inVedantaa (supra) was clearly applicable in the case. | 1 | 7,830 | 1,381 | ### 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:
that if the deficiencies of teaching faculty and/or residents are found to be more than 30% and/or bed occupancy less than 50%, College shall not be entitled to make them good and compliance of deficiencies will not be considered for issuance of letter of permission for same academic year. This Court held that compliance verification could not have been ordered in view of Regulation 8(3) (1)(a). The relevant observations in Vedantaa (supra) are extracted hereunder: 10. Though Regulation 8(3)(1)(a) was challenged in the writ petition filed by Respondents 1 and 2, they did not press the relief. They restricted their challenge to the manner in which the inspection was done and for a direction to the appellant-Council to carry out a fresh inspection. The interpretation of Regulation 8(3)(1)(a) by the High Court is patently erroneous inasmuch as the High Court did not take note of the proviso to Regulation 8(3)(1). Without a proper examination of the provision, the High Court fell in error in holding that Regulation 8(3)(1) (a) would be applicable only to the Colleges seeking second renewal i.e. admissions of the third batch. Admissions up to the second renewal i.e. admissions to the third batch would fall under Regulation 8(3)(1)(a). In other words, the proviso is not restricted only to second renewal cases. Even the first renewal is covered by proviso (a) to Regulation 8(3)(1) as the language used is up to second renewal. We do not see any conflict between Section 10-A (3) and (4) of the Act on one hand and Regulation 8(3)(1)(a) on the other. Regulation 8(3)(1) (a) is complementary to Section 10-A of the Act. Fixing minimum standards which have to be fulfilled for the purpose of enabling a medical College to seek fresh inspection would not be contrary to the scheme of Section 10-A. In fact, Regulation 8(3)(1) provides that an opportunity shall be given to the Medical College to rectify the defects. But, the proviso contemplates that certain minimum standards are to be satisfied i.e. there should not be a deficiency of teaching faculty and/or residents more than 30 percent and/or bed occupancy should not be less than 50%. This prescription of standards for availing an opportunity to seek reinspection is not ultra vires either the Regulation or Section 10-A of the Act. 11. On perusal of the material on record, we are of the opinion that the conclusion reached by the High Court regarding the manner in which inspection was conducted is also not correct. Bed occupancy at 45.30 percent on random verification was the claim of Respondents 1 and 2. However, the inspection report shows that out of the required minimum of 300 patients only 3 were available at 10.00 am on 25th September 2017. This Court in Medical Council of India v. Kalinga Institute of Medical Sciences, (2016) 11 SCC 530 has held that medical education must be taken very seriously and when an expert body certifies that the facilities in a medical College are inadequate, it is not for the Courts to interfere with the assessment, except for very cogent jurisdictional reasons such as malafide of the inspection team, ex facie perversity in the inspection, jurisdictional error on the part of the M.C.I., etc. The submission relating to the cyclone being a reason for the number of patients being less is not acceptable. We are in agreement with the submission made on behalf of the Appellant that the Resident Doctors are required to be in the hospital at all points of time. 25. It is apparent that the College had filed successive writ applications in the High Court of Delhi in 2018 but did not pray for fresh inspection in terms of the order passed by this Court knowing fully well that the MCI and the Oversight Committee had decided and again reiterated their decision that due to gross deficiencies found as per Regulation 8(3)(1)(a), compliance verification could not have been made. It was incumbent upon the College to timely press for the relief of considering compliance which it did not insist and thereafter it was too late in the day to order it by the High Court vide impugned order dated 1.8.2018 passed by the High Court even if it was permissible. 26. What this Court intended by passing the order on13.11.2017 was that the College be inspected afresh for the academic year 2018-19 but it was not even in contemplation of this Court at the time what would be the nature of deficiencies to be found on fresh inspection. The observation has to be considered only with respect to when deficiencies have been found to be such, more than 30% of faculty and of residents and/or the bed occupancy is less than 50%, no further compliance verification opportunity has to be given. The decision of this Court cannot be taken to be a decision with respect to it when deficiencies are found to be gross where the proviso to Regulation 8(3)(1) comes into play. The decision of this Court is based on the main provision that ordinarily an opportunity has to be given to removing the deficiencies which are removable not falling within the aforesaid percentage in Regulation 8(3)(1)(a). Thus, Court never intended to bye-pass the provision of Regulation 8(3)(1)(a). It was not ordered that notwithstanding the provision of Regulation 8(3)(1)(a), compliance opportunity is to be afforded. A decision is an authority for the question considered and decided. This Court had not decided the aforesaid aspect nor was it germane as fresh inspection had not been carried out by 13.11.2017. Thus, the observations made by this Court cannot be taken to mean that though deficiencies are found to be more than 30% of faculty and residents and bed occupancy is 50% and notwithstanding the provisions contained in Regulation 8(3)(1)(a), compliance opportunity should be given. Thus, the High Court has erred in law in considering purport of the order of this Court and the ratio of the decision in Vedantaa (supra) was clearly applicable in the case.
### Response:
1
### Explanation:
the gross deficiencies found, an opportunity could not have been granted in view of Regulation 8(3)(1)(a). The College filed W.P. [C] No.4897/2018 which was decided by the High Court on 8.5.2018. Following is the order passed by the High Court :Vide the present petition, the petitioners/Institutes have sought to quash of the decision dated 24 th March 2018 passed by respondent no.2, recommending disapproval of the petitioners application to respondent no.1 for renewal/permission of the third batch of MBBS course (150 seats) for the Academic Year. The petitioners have also sought issuance of direction to respondent no.2, to accept the Scheme of the petitioners as submitted for renewal of permission in respect of the aforesaid batch and if necessary grant an opportunity to furnish compliance verification and, therefore, issue a letter of permission.At this stage, learned counsel for the petitioners submits that vide order dated 6 th March 2018, this Court had recorded the undertaking of respondent no. 2/MCI to decide the petitionerspending application and forward the same to respondent no.1 within five weeks. He submits that till date, the respondent no.1 has not informed the petitioners about any decision of respondent no.2.Ms. Arora, who appears on advance notice for the respondent no.1 submits that within ten days of receipt of the recommendations from respondent no.2, the respondent no.1 will pass a final order deciding the petitioners pending application.On the one hand, Mr. T.Singhdev, learned counsel for respondent no.2, submits that its recommendations in respect of the petitioners application have already been sent to respondent no.1 on 13 th April 2018 itself.In view of the categoric statement made by learned counsel for the respondent no.2 that the recommendations have already been forwarded on 13 th April 2018, the respondent no.1 is directed to take a final decision on the petitionersapplication within ten days from today.It is made clear that in case the respondent no.1 is still not in possession of recommendations made by respondent no.2 vide its order dated 13 th April 2018, respondent no.1 would be at liberty to seek immediately a fresh copy of the same from respondent no.2.Needless to say that the said final decision taken by respondent no.1, will be communicated to the petitioner who will be free to take legal recourse as permissible under law.The petition and pending applications are disposed of in the aforesaid terms.It is apparent from the aforesaid order that the College again did not insist that fresh inspection should be carried out and it may be permitted to comply with the deficiencies.23. In view of the gross deficiencies found, no compliance verification could have been made in view of Regulation 8(3)(1)(a). It was already a case of conditional permission which was granted subject to removal of deficiencies and in successive inspections, it was found that the College was not compliant and had not removed the deficiencies. When this Court has passed an order on 13.11.2017, no doubt about it that this Court has observed that inspection should be carried out and College should be given an opportunity to make compliance of deficiencies. In concluding portion it was observed that the decision has to be in accordance with law. This Court never decided the question in case deficiencies were found to be gross as contained in Regulation 8(3)(1)(a) whether the said Regulation has to be ignored. The observations which were made by this Court were obviously based upon the main provision which requires an opportunity to be given unless the deficiencies are such which can be termed to be gross as contemplated in proviso (a) to Regulation 8(3)(1)(a) that has been amended.25. It is apparent thatthe College had filed successive writ applications in the High Court of Delhi in 2018 but did not pray for fresh inspection in terms of the order passed by this Court knowing fully well that the MCI and the Oversight Committee had decided and again reiterated their decision that due to gross deficiencies found as per Regulation 8(3)(1)(a), compliance verification could not have been made. It was incumbent upon the College to timely press for the relief of considering compliance which it did not insist and thereafter it was too late in the day to order it by the High Court vide impugned order dated 1.8.2018 passed by the High Court even if it was permissible.this Court intended by passingafresh for the academic year 2018-19 but it was not even in contemplation of this Court at the time what would be the nature of deficiencies to be found on fresh inspection. The observation has to be considered only with respect to when deficiencies have been found to be such, more than 30% of faculty and of residents and/or the bed occupancy is less than 50%, no further compliance verification opportunity has to be given. The decision of this Court cannot be taken to be a decision with respect to it when deficiencies are found to be gross where the proviso to Regulation 8(3)(1) comes into play. The decision of this Court is based on the main provision that ordinarily an opportunity has to be given to removing the deficiencies which are removable not falling within the aforesaid percentage in Regulation 8(3)(1)(a). Thus, Court never intended to bye-pass the provision of Regulation 8(3)(1)(a). It was not ordered that notwithstanding the provision of Regulation 8(3)(1)(a), compliance opportunity is to be afforded. A decision is an authority for the question considered and decided. This Court had not decided the aforesaid aspect nor was it germane as fresh inspection had not been carried out by 13.11.2017. Thus, the observations made by this Court cannot be taken to mean that though deficiencies are found to be more than 30% of faculty and residents and bed occupancy is 50% and notwithstanding the provisions contained in Regulation 8(3)(1)(a), compliance opportunity should be given. Thus, the High Court has erred in law in considering purport of the order of this Court and the ratio of the decision inVedantaa (supra) was clearly applicable in the case.
|
Maharaj Prithvisinghji Bhimsinghji Vs. State of Bombay | his attache case during the journey, particularly when a leather spectacle case was found in it, without the spectacles, and the appellant had on a pair of spectacles at Abu Road Station. As it has already been stated the opportunity to place the bottle in question in the waiting room at Abu Road station has not been considered by the High Court.10. Even assuming that this bottle with the label Gordons Dry gin in the attache case was there to the knowledge of the appellant, the further question which arises for consideration is whether it contained any intoxicant. If it is not established that the contents of this bottle were intoxicant within the meaning of the Act it will be impossible to make use of the finding of the bottle with a label Gordons Dry gin on it as a circumstance to indicate that the appellant had knowledge of the existence of the numerous bottles of foreign liquor in his trunks. Liquor has been defined in the act under S. 2(24) to include spirits of wine, denatured spirits wine, beer, toddy and all liquids consisting of or containing alcohol and any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purposes of the Act. Intoxicant, under S. 2(22) of the Act, means any liquor, intoxicating drug, opium or any other substance which the State Government may, by notification in the Official Gazette, declare to be intoxicant. What is prohibited under S. 65(a) is the import or export of any intoxicant or hemp in contravention of the provisions of the Act. Similarly, under S. 66(b) what is punishable is for any one, in contravention of the provisions of the Act, to consume, use, possess or transport any intoxicant or hemp. These sections do not make punishable the mere import or possession of alcohol. All the evidence in the present case to prove that the bottle in the attache case was an intoxicant within the meaning of the Act is the evidence that, on uncorking, the bottle smelt of liquor. The evidence of the District Inspector of Prohibition and Excise, Veljibhai Virsingbai Chodhari, P. W. 8 was that the contents of this bottle were not sufficient to enable a test to be done scientifically and that the test by smell cannot give the percentage of alcohol. There is, therefore, no clear proof that the liquid contained in this bottle found in the attache case was, in the first place, liquor and, in the second place, if liquor, that it was an intoxicant within the meaning of the Act. It is to be remembered that at least upto Sirohi Road station possession and consumption of intoxicating liquor was no offence. If the bottle smelt of alcohol when it was uncorked at Abu road station that would not necessarily prove that the liquid contained therein was, infect, any intoxicant. Even if water or any liquid other than liquor had been poured into a bottle which had recently contained liquor the smell of alcohol would still be there. It seems to us that this aspect of the matter has not been considered by the High Court in assessing the evidence. It is on the assumption that this bottle contained an intoxicant within the meaning of the Act that the High Court came to the conclusion that at least in respect of this bottle the appellant had full knowledge that it contained foreign liquor. Consequently, possession of this bottle and of importing it into an area where the Act applied would in itself be an offence punishable under S. 65(a) and S. 66(b) of the Act and an inference could be drawn that the appellant was also possessing and importing liquor in contravention of the provisions of the Act. On the other hand, if there is no clear proof that the contents of this bottle were intoxicant within the meaning of the Act the existence of this bottle in the attache case does not necessarily lead to the conclusion that the appellant had knowledge of the existence of the 76 bottles of foreign liquor in his trunks. Indeed, as we read the judgment of the High Court, it is the existence of this bottle in the attache case which has seriously affected its conclusion in drawing an inference against the appellant on the circumstantial evidence in the case.11. If no adverse inference can be drawn against the appellant from the existence of this bottle in the attache case, then can it be safely inferred that from the mere existence of the 76 bottles of foreign liquor in the trunks of the appellant that he had knowledge of their existence? It has been proved beyond any question that although the ownership of these trunks in the appellant, the entire handling of these trunks, their packing and unpacking, was in the hands of his servant Gangaram Makarji who had in his possession their keys. In one of these trunks the personal belongings of Gangaram Makarji were also found. The likelihood of Gangaram Makarji, taking advantage of his control and possession of his masters luggage, to bring into Abu Road a large quantity of liquor for his own purpose and profit cannot altogether be excluded. Gangaram Makarji may well have calculated that having regard to the status of his master his luggage was unlikely to be searched. In our opinion, the view of the Sessions Judge that Gangaram Makarji might have been bringing the liquor to Danta to make money and that the appellants luggage would not be searched cannot be said to be entirely unreasonable.The circumstantial evidence in the case is not of that kind from which the only inference that could reasonably be drawn was that the appellant had knowledge of the contents of his luggage and that he had accordingly possessed and imported an intoxicant, in contravention of the provisions of the Act. That being the position it is not possible to convict the appellant. | 1[ds]9. It would appear from the finding of the High Court that it would have hesitated to differ from the Sessions Judge on this vital issue whether Gangaram had an opportunity to place the bottle in the attache case were it not for the fact that there was no evidence to show that this accused entered the 1st Class compartment at Abu Road station. What was found in the attache case is the most important aspect of all the circumstances in determining whether the appellant was aware of the existence of so many bottles of liquor in his luggage. If Gangaram had no opportunity to place the bottle in the attache case, whatever may be said about the lack of knowledge on the part of the appellant regarding the contents of the trunks, the attache case being in his personal use during his journey from Delhi to Abu Road, the inference would be that he had knowledge of the existence of the bottle with the label Gordons Dry Gin on it in his attache case as the probabilities are that he would have used his attache case during the journey, particularly when a leather spectacle case was found in it, without the spectacles, and the appellant had on a pair of spectacles at Abu Road Station. As it has already been stated the opportunity to place the bottle in question in the waiting room at Abu Road station has not been considered by the High Court.10. Even assuming that this bottle with the label Gordons Dry gin in the attache case was there to the knowledge of the appellant, the further question which arises for consideration is whether it contained any intoxicant. If it is not established that the contents of this bottle were intoxicant within the meaning of the Act it will be impossible to make use of the finding of the bottle with a label Gordons Dry gin on it as a circumstance to indicate that the appellant had knowledge of the existence of the numerous bottles of foreign liquor in his trunks. Liquor has been defined in the act under S. 2(24) to include spirits of wine, denatured spirits wine, beer, toddy and all liquids consisting of or containing alcohol and any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purposes of the Act. Intoxicant, under S. 2(22) of the Act, means any liquor, intoxicating drug, opium or any other substance which the State Government may, by notification in the Official Gazette, declare to be intoxicant. What is prohibited under S. 65(a) is the import or export of any intoxicant or hemp in contravention of the provisions of the Act. Similarly, under S. 66(b) what is punishable is for any one, in contravention of the provisions of the Act, to consume, use, possess or transport any intoxicant or hemp. These sections do not make punishable the mere import or possession of alcohol. All the evidence in the present case to prove that the bottle in the attache case was an intoxicant within the meaning of the Act is the evidence that, on uncorking, the bottle smelt of liquor. The evidence of the District Inspector of Prohibition and Excise, Veljibhai Virsingbai Chodhari, P. W. 8 was that the contents of this bottle were not sufficient to enable a test to be done scientifically and that the test by smell cannot give the percentage of alcohol. There is, therefore, no clear proof that the liquid contained in this bottle found in the attache case was, in the first place, liquor and, in the second place, if liquor, that it was an intoxicant within the meaning of the Act. It is to be remembered that at least upto Sirohi Road station possession and consumption of intoxicating liquor was no offence. If the bottle smelt of alcohol when it was uncorked at Abu road station that would not necessarily prove that the liquid contained therein was, infect, any intoxicant. Even if water or any liquid other than liquor had been poured into a bottle which had recently contained liquor the smell of alcohol would still be there. It seems to us that this aspect of the matter has not been considered by the High Court in assessing the evidence. It is on the assumption that this bottle contained an intoxicant within the meaning of the Act that the High Court came to the conclusion that at least in respect of this bottle the appellant had full knowledge that it contained foreign liquor. Consequently, possession of this bottle and of importing it into an area where the Act applied would in itself be an offence punishable under S. 65(a) and S. 66(b) of the Act and an inference could be drawn that the appellant was also possessing and importing liquor in contravention of the provisions of the Act. On the other hand, if there is no clear proof that the contents of this bottle were intoxicant within the meaning of the Act the existence of this bottle in the attache case does not necessarily lead to the conclusion that the appellant had knowledge of the existence of the 76 bottles of foreign liquor in his trunks. Indeed, as we read the judgment of the High Court, it is the existence of this bottle in the attache case which has seriously affected its conclusion in drawing an inference against the appellant on the circumstantial evidence in the case.If no adverse inference can be drawn against the appellant from the existence of this bottle in the attache case, then can it be safely inferred that from the mere existence of the 76 bottles of foreign liquor in the trunks of the appellant that he had knowledge of their existence?It has been proved beyond any question that although the ownership of these trunks in the appellant, the entire handling of these trunks, their packing and unpacking, was in the hands of his servant Gangaram Makarji who had in his possession their keys. In one of these trunks the personal belongings of Gangaram Makarji were also found. The likelihood of Gangaram Makarji, taking advantage of his control and possession of his masters luggage, to bring into Abu Road a large quantity of liquor for his own purpose and profit cannot altogether be excluded. Gangaram Makarji may well have calculated that having regard to the status of his master his luggage was unlikely to be searched. In our opinion, the view of the Sessions Judge that Gangaram Makarji might have been bringing the liquor to Danta to make money and that the appellants luggage would not be searched cannot be said to be entirely unreasonable.The circumstantial evidence in the case is not of that kind from which the only inference that could reasonably be drawn was that the appellant had knowledge of the contents of his luggage and that he had accordingly possessed and imported an intoxicant, in contravention of the provisions of the Act. That being the position it is not possible to convict the appellant. | 1 | 3,506 | 1,285 | ### 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:
his attache case during the journey, particularly when a leather spectacle case was found in it, without the spectacles, and the appellant had on a pair of spectacles at Abu Road Station. As it has already been stated the opportunity to place the bottle in question in the waiting room at Abu Road station has not been considered by the High Court.10. Even assuming that this bottle with the label Gordons Dry gin in the attache case was there to the knowledge of the appellant, the further question which arises for consideration is whether it contained any intoxicant. If it is not established that the contents of this bottle were intoxicant within the meaning of the Act it will be impossible to make use of the finding of the bottle with a label Gordons Dry gin on it as a circumstance to indicate that the appellant had knowledge of the existence of the numerous bottles of foreign liquor in his trunks. Liquor has been defined in the act under S. 2(24) to include spirits of wine, denatured spirits wine, beer, toddy and all liquids consisting of or containing alcohol and any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purposes of the Act. Intoxicant, under S. 2(22) of the Act, means any liquor, intoxicating drug, opium or any other substance which the State Government may, by notification in the Official Gazette, declare to be intoxicant. What is prohibited under S. 65(a) is the import or export of any intoxicant or hemp in contravention of the provisions of the Act. Similarly, under S. 66(b) what is punishable is for any one, in contravention of the provisions of the Act, to consume, use, possess or transport any intoxicant or hemp. These sections do not make punishable the mere import or possession of alcohol. All the evidence in the present case to prove that the bottle in the attache case was an intoxicant within the meaning of the Act is the evidence that, on uncorking, the bottle smelt of liquor. The evidence of the District Inspector of Prohibition and Excise, Veljibhai Virsingbai Chodhari, P. W. 8 was that the contents of this bottle were not sufficient to enable a test to be done scientifically and that the test by smell cannot give the percentage of alcohol. There is, therefore, no clear proof that the liquid contained in this bottle found in the attache case was, in the first place, liquor and, in the second place, if liquor, that it was an intoxicant within the meaning of the Act. It is to be remembered that at least upto Sirohi Road station possession and consumption of intoxicating liquor was no offence. If the bottle smelt of alcohol when it was uncorked at Abu road station that would not necessarily prove that the liquid contained therein was, infect, any intoxicant. Even if water or any liquid other than liquor had been poured into a bottle which had recently contained liquor the smell of alcohol would still be there. It seems to us that this aspect of the matter has not been considered by the High Court in assessing the evidence. It is on the assumption that this bottle contained an intoxicant within the meaning of the Act that the High Court came to the conclusion that at least in respect of this bottle the appellant had full knowledge that it contained foreign liquor. Consequently, possession of this bottle and of importing it into an area where the Act applied would in itself be an offence punishable under S. 65(a) and S. 66(b) of the Act and an inference could be drawn that the appellant was also possessing and importing liquor in contravention of the provisions of the Act. On the other hand, if there is no clear proof that the contents of this bottle were intoxicant within the meaning of the Act the existence of this bottle in the attache case does not necessarily lead to the conclusion that the appellant had knowledge of the existence of the 76 bottles of foreign liquor in his trunks. Indeed, as we read the judgment of the High Court, it is the existence of this bottle in the attache case which has seriously affected its conclusion in drawing an inference against the appellant on the circumstantial evidence in the case.11. If no adverse inference can be drawn against the appellant from the existence of this bottle in the attache case, then can it be safely inferred that from the mere existence of the 76 bottles of foreign liquor in the trunks of the appellant that he had knowledge of their existence? It has been proved beyond any question that although the ownership of these trunks in the appellant, the entire handling of these trunks, their packing and unpacking, was in the hands of his servant Gangaram Makarji who had in his possession their keys. In one of these trunks the personal belongings of Gangaram Makarji were also found. The likelihood of Gangaram Makarji, taking advantage of his control and possession of his masters luggage, to bring into Abu Road a large quantity of liquor for his own purpose and profit cannot altogether be excluded. Gangaram Makarji may well have calculated that having regard to the status of his master his luggage was unlikely to be searched. In our opinion, the view of the Sessions Judge that Gangaram Makarji might have been bringing the liquor to Danta to make money and that the appellants luggage would not be searched cannot be said to be entirely unreasonable.The circumstantial evidence in the case is not of that kind from which the only inference that could reasonably be drawn was that the appellant had knowledge of the contents of his luggage and that he had accordingly possessed and imported an intoxicant, in contravention of the provisions of the Act. That being the position it is not possible to convict the appellant.
### Response:
1
### Explanation:
have used his attache case during the journey, particularly when a leather spectacle case was found in it, without the spectacles, and the appellant had on a pair of spectacles at Abu Road Station. As it has already been stated the opportunity to place the bottle in question in the waiting room at Abu Road station has not been considered by the High Court.10. Even assuming that this bottle with the label Gordons Dry gin in the attache case was there to the knowledge of the appellant, the further question which arises for consideration is whether it contained any intoxicant. If it is not established that the contents of this bottle were intoxicant within the meaning of the Act it will be impossible to make use of the finding of the bottle with a label Gordons Dry gin on it as a circumstance to indicate that the appellant had knowledge of the existence of the numerous bottles of foreign liquor in his trunks. Liquor has been defined in the act under S. 2(24) to include spirits of wine, denatured spirits wine, beer, toddy and all liquids consisting of or containing alcohol and any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purposes of the Act. Intoxicant, under S. 2(22) of the Act, means any liquor, intoxicating drug, opium or any other substance which the State Government may, by notification in the Official Gazette, declare to be intoxicant. What is prohibited under S. 65(a) is the import or export of any intoxicant or hemp in contravention of the provisions of the Act. Similarly, under S. 66(b) what is punishable is for any one, in contravention of the provisions of the Act, to consume, use, possess or transport any intoxicant or hemp. These sections do not make punishable the mere import or possession of alcohol. All the evidence in the present case to prove that the bottle in the attache case was an intoxicant within the meaning of the Act is the evidence that, on uncorking, the bottle smelt of liquor. The evidence of the District Inspector of Prohibition and Excise, Veljibhai Virsingbai Chodhari, P. W. 8 was that the contents of this bottle were not sufficient to enable a test to be done scientifically and that the test by smell cannot give the percentage of alcohol. There is, therefore, no clear proof that the liquid contained in this bottle found in the attache case was, in the first place, liquor and, in the second place, if liquor, that it was an intoxicant within the meaning of the Act. It is to be remembered that at least upto Sirohi Road station possession and consumption of intoxicating liquor was no offence. If the bottle smelt of alcohol when it was uncorked at Abu road station that would not necessarily prove that the liquid contained therein was, infect, any intoxicant. Even if water or any liquid other than liquor had been poured into a bottle which had recently contained liquor the smell of alcohol would still be there. It seems to us that this aspect of the matter has not been considered by the High Court in assessing the evidence. It is on the assumption that this bottle contained an intoxicant within the meaning of the Act that the High Court came to the conclusion that at least in respect of this bottle the appellant had full knowledge that it contained foreign liquor. Consequently, possession of this bottle and of importing it into an area where the Act applied would in itself be an offence punishable under S. 65(a) and S. 66(b) of the Act and an inference could be drawn that the appellant was also possessing and importing liquor in contravention of the provisions of the Act. On the other hand, if there is no clear proof that the contents of this bottle were intoxicant within the meaning of the Act the existence of this bottle in the attache case does not necessarily lead to the conclusion that the appellant had knowledge of the existence of the 76 bottles of foreign liquor in his trunks. Indeed, as we read the judgment of the High Court, it is the existence of this bottle in the attache case which has seriously affected its conclusion in drawing an inference against the appellant on the circumstantial evidence in the case.If no adverse inference can be drawn against the appellant from the existence of this bottle in the attache case, then can it be safely inferred that from the mere existence of the 76 bottles of foreign liquor in the trunks of the appellant that he had knowledge of their existence?It has been proved beyond any question that although the ownership of these trunks in the appellant, the entire handling of these trunks, their packing and unpacking, was in the hands of his servant Gangaram Makarji who had in his possession their keys. In one of these trunks the personal belongings of Gangaram Makarji were also found. The likelihood of Gangaram Makarji, taking advantage of his control and possession of his masters luggage, to bring into Abu Road a large quantity of liquor for his own purpose and profit cannot altogether be excluded. Gangaram Makarji may well have calculated that having regard to the status of his master his luggage was unlikely to be searched. In our opinion, the view of the Sessions Judge that Gangaram Makarji might have been bringing the liquor to Danta to make money and that the appellants luggage would not be searched cannot be said to be entirely unreasonable.The circumstantial evidence in the case is not of that kind from which the only inference that could reasonably be drawn was that the appellant had knowledge of the contents of his luggage and that he had accordingly possessed and imported an intoxicant, in contravention of the provisions of the Act. That being the position it is not possible to convict the appellant.
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Dalco Engineering Pvt. Ltd Vs. Satish Prabhakar Padhye | In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court (1981) 1 SCR 789 , we had occasion to say, Semantic luxuries are misplaced in the interpretation of "bread and butter" statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions." 14.3) He next relied upon the following observations in Kunal Singh v. Union of India - 2003 (4) SCC 524 , where this Court, referring to the very section under consideration, observed thus : "Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service." 15. We agree that the socio-economic legislations should be interpreted liberally. It is also true that Courts should adopt different yardsticks and measures for interpreting socio-economic statutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in a socio-economic legislation by judicial interpretation, to levels unintended by the legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations. In this case, there is a clear indication in the statute, that the benefit is intended to be restricted to a particular class of employees, that is employees of enumerated establishments (which fall within the scope of `state under Article 12). Express limitations placed by the socio-economic statute can not be ignored, so as to include in its application, those who are clearly excluded by such statute itself. We should not lose sight of the fact that the words "corporation established by or under a Central, Provincial or State Act" is a term used in several enactments, intended to convey a standard meaning. It is not a term which has any special significance or meaning in the context of the Disabilities Act or any other socio-economic legislations. It is a term used in various enactments, to refer to statutory corporations as contrasted from non-statutory companies. Any interpretation of the said term, to include private sector, will not only amount to overruling the clear enunciation in Dhanoa which has held the field for nearly three decades, but more importantly lead to the erasure of the distinction maintained in the Constitution between statutory corporations which are `state and non-statutory bodies and corporations, for purposes of enforcement of fundamental rights. The interpretation put forth by the employee would make employees of all companies, public servants, amenable to punishment under the provisions of Indian Penal Code and Prevention of Corruption Act; and would also result in all non-statutory companies and private sector companies being included in the definition of `State thereby requiring them to comply with the requirements of non-discrimination, equality in employment, reservations etc. 16. The appellant next contended that the scheme of the Act, does not confine its applicability to government or statutory corporations. Reference is invited to some provisions of the Act to contend that obligations/duties/responsibilities are fixed with reference to persons with disabilities, on establishments other than those falling under section 2(k) of the Act. It was submitted that section 39 casts an obligation on all educational institutions, to reserve not less than three percent of the seats for persons with disabilities. In fact, it is not so. Though, the marginal note of section 29 uses the words `all educational institutions with reference to reservation of seats for persons with disabilities, the section makes it clear that only government educational institutions and educational institutions receiving aid from the government shall reserve not less than three percent seats for persons with disabilities. It is well recognized that an aided private school would be included within the definition of `State in regard to its acts and functions as an instrumentality of the State. Therefore, care is taken to apply the provisions of the Act to only educational institutions belonging to the government or receiving aid from the government and not to unaided private educational institutions. Further, section 39 of the Act, does not use the word `establishment. Reference is next made to the section 44 which requires non-discrimination in transport. This section requires establishments in the transport sector to take special measures (within the limits of their economic capacity) to permit easy access to persons with disabilities. The employee contends that this would mean that all establishments whether statutory corporations falling under the definition of section 2(k) of the Act or non-statuary corporations, or even individuals operating in the transport sector should comply with section 44 of the Act. We do not propose to consider whether Section 44 applies to non-statutory corporations in the transport sector, as that issue does not arise in this case. Further the use of the words "within the limits of their economic capacity" makes it virtually directory. Be that as it may. Re : Question (ii) 17. As the appellant in CA No. 1886/2007 and the third respondent in CA No. 1858/2007, are not establishments, within the meaning of that expression in Section 2(k) of the Act, section 47 of the Act will not apply. In so far the CA No. 1858 of 2007, there is an additional factor. Third respondent therein was not the employer of any persons with disability. Therefore, in that case, the entire question is academic. In neither of the cases, any relief can be granted under section 47 of the Act. | 1[ds]15. We agree that thec legislations should be interpreted liberally. It is also true that Courts should adopt different yardsticks and measures for interpretingc statutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in ac legislation by judicial interpretation, to levels unintended by the legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations. In this case, there is a clear indication in the statute, that the benefit is intended to be restricted to a particular class of employees, that is employees of enumerated establishments (which fall within the scope of `state under Article 12). Express limitations placed by thec statute can not be ignored, so as to include in its application, those who are clearly excluded by such statute itself. We should not lose sight of the fact that the words "corporation established by or under a Central, Provincial or State Act" is a term used in several enactments, intended to convey a standard meaning. It is not a term which has any special significance or meaning in the context of the Disabilities Act or any otherc legislations. It is a term used in various enactments, to refer to statutory corporations as contrasted fromy companies. Any interpretation of the said term, to include private sector, will not only amount to overruling the clear enunciation in Dhanoa which has held the field for nearly three decades, but more importantly lead to the erasure of the distinction maintained in the Constitution between statutory corporations which are `state andy bodies and corporations, for purposes of enforcement of fundamental rights. The interpretation put forth by the employee would make employees of all companies, public servants, amenable to punishment under the provisions of Indian Penal Code and Prevention of Corruption Act; and would also result in ally companies and private sector companies being included in the definition of `State thereby requiring them to comply with the requirements of, equality in employment, reservations etc16. The appellant next contended that the scheme of the Act, does not confine its applicability to government or statutory corporations. Reference is invited to some provisions of the Act to contend that obligations/duties/responsibilities are fixed with reference to persons with disabilities, on establishments other than those falling under section 2(k) of the Act. It was submitted that section 39 casts an obligation on all educational institutions, to reserve not less than three percent of the seats for persons withdisabilities.In fact, it is not so. Though, the marginal note of section 29 uses the words `all educational institutions with reference to reservation of seats for persons with disabilities, the section makes it clear that only government educational institutions and educational institutions receiving aid from the government shall reserve not less than three percent seats for persons withdisabilities.It is well recognized that an aided private school would be included within the definition of `State in regard to its acts and functions as an instrumentality of the State. Therefore, care is taken to apply the provisions of the Act to only educational institutions belonging to the government or receiving aid from the government and not to unaided private educational institutions. Further, section 39 of the Act, does not use the word `establishment. Reference is next made to the section 44 which requiresn in transport. This section requires establishments in the transport sector to take special measures (within the limits of their economic capacity) to permit easy access to persons withdisabilities.The employee contends that this would mean that all establishments whether statutory corporations falling under the definition of section 2(k) of the Act ory corporations, or even individuals operating in the transport sector should comply with section 44 of the Act. We do not propose to consider whether Section 44 applies toy corporations in the transport sector, as that issue does not arise in this case. Further the use of the words "within the limits of their economic capacity" makes it virtually directory. Be that as it mayRe : Question (ii)17. As the appellant in CA No. 1886/2007 and the third respondent in CA No. 1858/2007, are not establishments, within the meaning of that expression in Section 2(k) of the Act, section 47 of the Act will not apply. In so far the CA No. 1858 of 2007, there is an additional factor. Third respondent therein was not the employer of any persons with disability. Therefore, in that case, the entire question is academic. In neither of the cases, any relief can be granted under section 47 of the Act. | 1 | 5,756 | 868 | ### Instruction:
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In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court (1981) 1 SCR 789 , we had occasion to say, Semantic luxuries are misplaced in the interpretation of "bread and butter" statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions." 14.3) He next relied upon the following observations in Kunal Singh v. Union of India - 2003 (4) SCC 524 , where this Court, referring to the very section under consideration, observed thus : "Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service." 15. We agree that the socio-economic legislations should be interpreted liberally. It is also true that Courts should adopt different yardsticks and measures for interpreting socio-economic statutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in a socio-economic legislation by judicial interpretation, to levels unintended by the legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations. In this case, there is a clear indication in the statute, that the benefit is intended to be restricted to a particular class of employees, that is employees of enumerated establishments (which fall within the scope of `state under Article 12). Express limitations placed by the socio-economic statute can not be ignored, so as to include in its application, those who are clearly excluded by such statute itself. We should not lose sight of the fact that the words "corporation established by or under a Central, Provincial or State Act" is a term used in several enactments, intended to convey a standard meaning. It is not a term which has any special significance or meaning in the context of the Disabilities Act or any other socio-economic legislations. It is a term used in various enactments, to refer to statutory corporations as contrasted from non-statutory companies. Any interpretation of the said term, to include private sector, will not only amount to overruling the clear enunciation in Dhanoa which has held the field for nearly three decades, but more importantly lead to the erasure of the distinction maintained in the Constitution between statutory corporations which are `state and non-statutory bodies and corporations, for purposes of enforcement of fundamental rights. The interpretation put forth by the employee would make employees of all companies, public servants, amenable to punishment under the provisions of Indian Penal Code and Prevention of Corruption Act; and would also result in all non-statutory companies and private sector companies being included in the definition of `State thereby requiring them to comply with the requirements of non-discrimination, equality in employment, reservations etc. 16. The appellant next contended that the scheme of the Act, does not confine its applicability to government or statutory corporations. Reference is invited to some provisions of the Act to contend that obligations/duties/responsibilities are fixed with reference to persons with disabilities, on establishments other than those falling under section 2(k) of the Act. It was submitted that section 39 casts an obligation on all educational institutions, to reserve not less than three percent of the seats for persons with disabilities. In fact, it is not so. Though, the marginal note of section 29 uses the words `all educational institutions with reference to reservation of seats for persons with disabilities, the section makes it clear that only government educational institutions and educational institutions receiving aid from the government shall reserve not less than three percent seats for persons with disabilities. It is well recognized that an aided private school would be included within the definition of `State in regard to its acts and functions as an instrumentality of the State. Therefore, care is taken to apply the provisions of the Act to only educational institutions belonging to the government or receiving aid from the government and not to unaided private educational institutions. Further, section 39 of the Act, does not use the word `establishment. Reference is next made to the section 44 which requires non-discrimination in transport. This section requires establishments in the transport sector to take special measures (within the limits of their economic capacity) to permit easy access to persons with disabilities. The employee contends that this would mean that all establishments whether statutory corporations falling under the definition of section 2(k) of the Act or non-statuary corporations, or even individuals operating in the transport sector should comply with section 44 of the Act. We do not propose to consider whether Section 44 applies to non-statutory corporations in the transport sector, as that issue does not arise in this case. Further the use of the words "within the limits of their economic capacity" makes it virtually directory. Be that as it may. Re : Question (ii) 17. As the appellant in CA No. 1886/2007 and the third respondent in CA No. 1858/2007, are not establishments, within the meaning of that expression in Section 2(k) of the Act, section 47 of the Act will not apply. In so far the CA No. 1858 of 2007, there is an additional factor. Third respondent therein was not the employer of any persons with disability. Therefore, in that case, the entire question is academic. In neither of the cases, any relief can be granted under section 47 of the Act.
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1
### Explanation:
15. We agree that thec legislations should be interpreted liberally. It is also true that Courts should adopt different yardsticks and measures for interpretingc statutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in ac legislation by judicial interpretation, to levels unintended by the legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations. In this case, there is a clear indication in the statute, that the benefit is intended to be restricted to a particular class of employees, that is employees of enumerated establishments (which fall within the scope of `state under Article 12). Express limitations placed by thec statute can not be ignored, so as to include in its application, those who are clearly excluded by such statute itself. We should not lose sight of the fact that the words "corporation established by or under a Central, Provincial or State Act" is a term used in several enactments, intended to convey a standard meaning. It is not a term which has any special significance or meaning in the context of the Disabilities Act or any otherc legislations. It is a term used in various enactments, to refer to statutory corporations as contrasted fromy companies. Any interpretation of the said term, to include private sector, will not only amount to overruling the clear enunciation in Dhanoa which has held the field for nearly three decades, but more importantly lead to the erasure of the distinction maintained in the Constitution between statutory corporations which are `state andy bodies and corporations, for purposes of enforcement of fundamental rights. The interpretation put forth by the employee would make employees of all companies, public servants, amenable to punishment under the provisions of Indian Penal Code and Prevention of Corruption Act; and would also result in ally companies and private sector companies being included in the definition of `State thereby requiring them to comply with the requirements of, equality in employment, reservations etc16. The appellant next contended that the scheme of the Act, does not confine its applicability to government or statutory corporations. Reference is invited to some provisions of the Act to contend that obligations/duties/responsibilities are fixed with reference to persons with disabilities, on establishments other than those falling under section 2(k) of the Act. It was submitted that section 39 casts an obligation on all educational institutions, to reserve not less than three percent of the seats for persons withdisabilities.In fact, it is not so. Though, the marginal note of section 29 uses the words `all educational institutions with reference to reservation of seats for persons with disabilities, the section makes it clear that only government educational institutions and educational institutions receiving aid from the government shall reserve not less than three percent seats for persons withdisabilities.It is well recognized that an aided private school would be included within the definition of `State in regard to its acts and functions as an instrumentality of the State. Therefore, care is taken to apply the provisions of the Act to only educational institutions belonging to the government or receiving aid from the government and not to unaided private educational institutions. Further, section 39 of the Act, does not use the word `establishment. Reference is next made to the section 44 which requiresn in transport. This section requires establishments in the transport sector to take special measures (within the limits of their economic capacity) to permit easy access to persons withdisabilities.The employee contends that this would mean that all establishments whether statutory corporations falling under the definition of section 2(k) of the Act ory corporations, or even individuals operating in the transport sector should comply with section 44 of the Act. We do not propose to consider whether Section 44 applies toy corporations in the transport sector, as that issue does not arise in this case. Further the use of the words "within the limits of their economic capacity" makes it virtually directory. Be that as it mayRe : Question (ii)17. As the appellant in CA No. 1886/2007 and the third respondent in CA No. 1858/2007, are not establishments, within the meaning of that expression in Section 2(k) of the Act, section 47 of the Act will not apply. In so far the CA No. 1858 of 2007, there is an additional factor. Third respondent therein was not the employer of any persons with disability. Therefore, in that case, the entire question is academic. In neither of the cases, any relief can be granted under section 47 of the Act.
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Sisir Kumar Dutta Vs. State Of West Bengalunion Of India-Intervener | that the British Parliament invested the Constituent Assembly with all the powers of the Dominion Legislature "for the purpose of making provision as to the constitution of the Dominion." That power it exercised and drew up the Indian Constitution, but in doing so it decided to bring the Constitution into being in two instalments and it did that by enacting Art. 394 and enacting in it that that Article and certain others. including Art. 379, should come into force "at once"- at once being 26/11/1949- while the remaining Articles were to come into force on 26/01/1950.(11) Now Art. 379 (1) provides that: "Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the Provisional Parliament and shall exercise all the powers that perform all the duties conferred by the Provisions of this Constitution on Parliament." It was argued on behalf of the appellant that because of this Article the Constituent Assembly disappeared as a law making body on and after 26/11/1949 and that its place was taken by the Provisional Parliament referred to by that Article, and as the Resolution of 20/12/1949 purports to be a resolution of the Constituent Assembly (Legislative) and not of the provisional Parliament, it is a resolution of a body which no longer had authority to enact laws or pass a resolution of this kind affecting the laws of the land.(12) The learned Attorney-General argues, on the other hand, that the Constituent Assembly continued to function as such and to retain its right to exercise its dual functions of constitution making and law making right up to the last stroke of midnight on 25/01/1950. The every next second, when a new day ushered in a new era for this country, it ceased to exist as a Constituent Assembly and its place was taken by the provisional Parliament of India.(13) We need not decide this point, for even if the provisional Parliament was intended to function on 26/11/1949 and not from 26/01/1950, it is clear that the Constituent Assembly was to continue in existence till "the commencement of the Constitution" which, by Art. 394, is 26/01/1950. Consequently, the power conferred on it as a designated body by the English statute. as adapted by the Governor-General, could be validly exercised on 20/12/1949 and was so exercised when it passed the resolution of that date. The provisional Parliament was not a body authorised to exercise the special power of approving the extension of the period mentioned in S. 4 of the English Statute as that was not one of "the powers conferred by this Constitution on Parliament," nor can bringing the provisional Parliament into existence on 26/11/1949 (assuming that to be the case) be regarded as "other provision" trade by the Constituent Assembly within the meaning of S. 4-A of the English Act. It follows the Constituent Assembly was not deprived of these specially designated powers on the date of the Resolution.(14) The next question is whether the Constituent Assembly had the power to extend the life of this particular piece of legislation beyond 26/01/1950. The question was posed on this way. It was conceded that the Essential Supplies Act was validly extended up to 31/03/1950. The Resolution which extended its life for another year beyond this was passed on 20/12/1949, but it was argued that it could not take effect till after the expiry of the previous extension, that is, not until 1/04/1950. But by that time the Constitution had come into being and so neither the Constituent Assembly nor the provisional Parliament could have extended the life of the temporary Act after its expiration on 31/03/1950 because of Expln. III to Art. 372. It follows that the Constituent Assembly which purported to effect the extension ahead of time could not do, in anticipation, what the Constitution says cannot be done after its commencement.(15) There is nothing in this contention. The Resolution of 20/12/1949 took immediate effect and its effect was to alter the date fixed for the expiration of the period mentioned in S. 4 of the English Statute from 31/03/1950 to 31/03/1951. The Essssential Supplies Act fixed the date for its own expiration as the date fixed for the expiration of the period mentioned in S. 4 above. Accordingly, it was an Act which was alive immediately before 26/01/1950 and which was due, at that time, to expire of its own force not on 31/03/1950 but on 31/03/1951, and as this was a law in force immediately before the commencement of the Constitution it continued in force, because of Art. 372 (1) and Expln. III, until it was due to expire.(16) That exhausts the constitutional points. We hold that there was a body in existence at all material times competent to extend the life of the Act up till 31/03/1951 and that it did so extend its life on 20/12/1949. The Act continued in force until after the Constitution and therefore was a living Act at the date of the offences, namely, 24/10/1950.(17) Counsel then sought to attack the conviction on other grounds but as the leave to appeal was confined to the constitutional points he cannot, so far as that is concerned, be permitted to travel further. Of course, it would have been competent for him to file a separate petition for special leave to appeal on the other points but had he done so it would have followed the usual course and he would have been obliged to obtain special leave in the usual way. We therefore treated this part of the argument as one asking for special leave to appeal. We heard him fully and are of opinion that these remaining points are not ones on which special leave to appeal should be granted. We therefore reject this irregular petition for special leave to appeal on its merits. | 0[ds](9) Now S. 4-A provides that the Constituent Assembly shall have the powers of the Dominion Legislature under the British Act "until other provision is made by or in accordance with a law made by the Constituent Assembly under sub-s. (1) of S. 8, Indian Independence Act,Turning to sub-s. (1) of S. 8 we find that the British Parliament invested the Constituent Assembly with all the powers of the Dominion Legislature "for the purpose of making provision as to the constitution of the Dominion." That power it exercised and drew up the Indian Constitution, but in doing so it decided to bring the Constitution into being in two instalments and it did that by enacting Art. 394 and enacting in it that that Article and certain others. including Art. 379, should come into force "at once"- at once being 26/11/1949- while the remaining Articles were to come into force onis clear that the Constituent Assembly was to continue in existence till "the commencement of the Constitution" which, by Art. 394, is 26/01/1950. Consequently, the power conferred on it as a designated body by the English statute. as adapted by the Governor-General, could be validly exercised on 20/12/1949 and was so exercised when it passed the resolution of that date. The provisional Parliament was not a body authorised to exercise the special power of approving the extension of the period mentioned in S. 4 of the English Statute as that was not one of "the powers conferred by this Constitution on Parliament," nor can bringing the provisional Parliament into existence on 26/11/1949 (assuming that to be the case) be regarded as "other provision" trade by the Constituent Assembly within the meaning of S. 4-A of the English Act. It follows the Constituent Assembly was not deprived of these specially designated powers on the date of theResolution of 20/12/1949 took immediate effect and its effect was to alter the date fixed for the expiration of the period mentioned in S. 4 of the English Statute from 31/03/1950 to 31/03/1951. The Essssential Supplies Act fixed the date for its own expiration as the date fixed for the expiration of the period mentioned in S. 4 above. Accordingly, it was an Act which was alive immediately before 26/01/1950 and which was due, at that time, to expire of its own force not on 31/03/1950 but on 31/03/1951, and as this was a law in force immediately before the commencement of the Constitution it continued in force, because of Art. 372 (1) and Expln. III, until it was due tohold that there was a body in existence at all material times competent to extend the life of the Act up till 31/03/1951 and that it did so extend its life on 20/12/1949. The Act continued in force until after the Constitution and therefore was a living Act at the date of the offences, namely,heard him fully and are of opinion that these remaining points are not ones on which special leave to appeal should be granted. We therefore reject this irregular petition for special leave to appeal on its merits. | 0 | 2,066 | 576 | ### Instruction:
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that the British Parliament invested the Constituent Assembly with all the powers of the Dominion Legislature "for the purpose of making provision as to the constitution of the Dominion." That power it exercised and drew up the Indian Constitution, but in doing so it decided to bring the Constitution into being in two instalments and it did that by enacting Art. 394 and enacting in it that that Article and certain others. including Art. 379, should come into force "at once"- at once being 26/11/1949- while the remaining Articles were to come into force on 26/01/1950.(11) Now Art. 379 (1) provides that: "Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the Provisional Parliament and shall exercise all the powers that perform all the duties conferred by the Provisions of this Constitution on Parliament." It was argued on behalf of the appellant that because of this Article the Constituent Assembly disappeared as a law making body on and after 26/11/1949 and that its place was taken by the Provisional Parliament referred to by that Article, and as the Resolution of 20/12/1949 purports to be a resolution of the Constituent Assembly (Legislative) and not of the provisional Parliament, it is a resolution of a body which no longer had authority to enact laws or pass a resolution of this kind affecting the laws of the land.(12) The learned Attorney-General argues, on the other hand, that the Constituent Assembly continued to function as such and to retain its right to exercise its dual functions of constitution making and law making right up to the last stroke of midnight on 25/01/1950. The every next second, when a new day ushered in a new era for this country, it ceased to exist as a Constituent Assembly and its place was taken by the provisional Parliament of India.(13) We need not decide this point, for even if the provisional Parliament was intended to function on 26/11/1949 and not from 26/01/1950, it is clear that the Constituent Assembly was to continue in existence till "the commencement of the Constitution" which, by Art. 394, is 26/01/1950. Consequently, the power conferred on it as a designated body by the English statute. as adapted by the Governor-General, could be validly exercised on 20/12/1949 and was so exercised when it passed the resolution of that date. The provisional Parliament was not a body authorised to exercise the special power of approving the extension of the period mentioned in S. 4 of the English Statute as that was not one of "the powers conferred by this Constitution on Parliament," nor can bringing the provisional Parliament into existence on 26/11/1949 (assuming that to be the case) be regarded as "other provision" trade by the Constituent Assembly within the meaning of S. 4-A of the English Act. It follows the Constituent Assembly was not deprived of these specially designated powers on the date of the Resolution.(14) The next question is whether the Constituent Assembly had the power to extend the life of this particular piece of legislation beyond 26/01/1950. The question was posed on this way. It was conceded that the Essential Supplies Act was validly extended up to 31/03/1950. The Resolution which extended its life for another year beyond this was passed on 20/12/1949, but it was argued that it could not take effect till after the expiry of the previous extension, that is, not until 1/04/1950. But by that time the Constitution had come into being and so neither the Constituent Assembly nor the provisional Parliament could have extended the life of the temporary Act after its expiration on 31/03/1950 because of Expln. III to Art. 372. It follows that the Constituent Assembly which purported to effect the extension ahead of time could not do, in anticipation, what the Constitution says cannot be done after its commencement.(15) There is nothing in this contention. The Resolution of 20/12/1949 took immediate effect and its effect was to alter the date fixed for the expiration of the period mentioned in S. 4 of the English Statute from 31/03/1950 to 31/03/1951. The Essssential Supplies Act fixed the date for its own expiration as the date fixed for the expiration of the period mentioned in S. 4 above. Accordingly, it was an Act which was alive immediately before 26/01/1950 and which was due, at that time, to expire of its own force not on 31/03/1950 but on 31/03/1951, and as this was a law in force immediately before the commencement of the Constitution it continued in force, because of Art. 372 (1) and Expln. III, until it was due to expire.(16) That exhausts the constitutional points. We hold that there was a body in existence at all material times competent to extend the life of the Act up till 31/03/1951 and that it did so extend its life on 20/12/1949. The Act continued in force until after the Constitution and therefore was a living Act at the date of the offences, namely, 24/10/1950.(17) Counsel then sought to attack the conviction on other grounds but as the leave to appeal was confined to the constitutional points he cannot, so far as that is concerned, be permitted to travel further. Of course, it would have been competent for him to file a separate petition for special leave to appeal on the other points but had he done so it would have followed the usual course and he would have been obliged to obtain special leave in the usual way. We therefore treated this part of the argument as one asking for special leave to appeal. We heard him fully and are of opinion that these remaining points are not ones on which special leave to appeal should be granted. We therefore reject this irregular petition for special leave to appeal on its merits.
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### Explanation:
(9) Now S. 4-A provides that the Constituent Assembly shall have the powers of the Dominion Legislature under the British Act "until other provision is made by or in accordance with a law made by the Constituent Assembly under sub-s. (1) of S. 8, Indian Independence Act,Turning to sub-s. (1) of S. 8 we find that the British Parliament invested the Constituent Assembly with all the powers of the Dominion Legislature "for the purpose of making provision as to the constitution of the Dominion." That power it exercised and drew up the Indian Constitution, but in doing so it decided to bring the Constitution into being in two instalments and it did that by enacting Art. 394 and enacting in it that that Article and certain others. including Art. 379, should come into force "at once"- at once being 26/11/1949- while the remaining Articles were to come into force onis clear that the Constituent Assembly was to continue in existence till "the commencement of the Constitution" which, by Art. 394, is 26/01/1950. Consequently, the power conferred on it as a designated body by the English statute. as adapted by the Governor-General, could be validly exercised on 20/12/1949 and was so exercised when it passed the resolution of that date. The provisional Parliament was not a body authorised to exercise the special power of approving the extension of the period mentioned in S. 4 of the English Statute as that was not one of "the powers conferred by this Constitution on Parliament," nor can bringing the provisional Parliament into existence on 26/11/1949 (assuming that to be the case) be regarded as "other provision" trade by the Constituent Assembly within the meaning of S. 4-A of the English Act. It follows the Constituent Assembly was not deprived of these specially designated powers on the date of theResolution of 20/12/1949 took immediate effect and its effect was to alter the date fixed for the expiration of the period mentioned in S. 4 of the English Statute from 31/03/1950 to 31/03/1951. The Essssential Supplies Act fixed the date for its own expiration as the date fixed for the expiration of the period mentioned in S. 4 above. Accordingly, it was an Act which was alive immediately before 26/01/1950 and which was due, at that time, to expire of its own force not on 31/03/1950 but on 31/03/1951, and as this was a law in force immediately before the commencement of the Constitution it continued in force, because of Art. 372 (1) and Expln. III, until it was due tohold that there was a body in existence at all material times competent to extend the life of the Act up till 31/03/1951 and that it did so extend its life on 20/12/1949. The Act continued in force until after the Constitution and therefore was a living Act at the date of the offences, namely,heard him fully and are of opinion that these remaining points are not ones on which special leave to appeal should be granted. We therefore reject this irregular petition for special leave to appeal on its merits.
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K.MARAPPAN (DEAD) THROUGH SOLE LR. BALASUBRAMANIAN Vs. THE SUPERINTENDING ENGINEER T.B.P.H.L.C. CIRCLE ANANTAPUR | of the appellant to produce the ledger has fatal consequences. The matter becomes further aggravated by the failure on the part of the appellant to even produce vouchers or bills in support of the claim to purchase the cement from outside sources. This is even if we are to ignore the fact that there is no written permission for purchase of cement from outside. We proceed on the basis that a contractor may without written permission but for the purpose of the work purchased cement from outside. But certainly, the fact that there are neither vouchers nor any ledger entries nor bills produced which persuades us to hold that the matter may warrant interference with the award under Section 30. We are not inclined to accept the claim. CLAIM NO.VII 87. As regards this claim, the claim appears to be that appellant collected materials and it was lying at the site. Admittedly, the appellant has not used this material for the purpose of doing the work. Only the case set up by the appellant is that he was given an assurance that he will be permitted to carry out the work and therefore, since he has spent money for the same, he must get the amount which is claimed for having spent on the material. We are of the view that insofar as the appellant has not used any of the materials to carry out the work and sets up the claim only on the basis of assurance which has not been admitted, the action of the appellant in purchasing the materials cannot result in establishing his claim for compensation. It is to be noticed that the appellant raised a claim for enhanced compensation. He alleged that there was delay on the part of the respondent on various grounds. This is apart from alleging other factors like breakout of malaria, unfavourable weather and delay in taking decision by the departmental officers, which contributed to escalation in cost. Correspondence was exchanged with the Executive Engineer and the Superintending Engineer, the Superintending Engineer and the Chief Engineer and finally between the Chief Engineer and the Government. It appears that at that stage appellant invoked the arbitration clause and a panel of arbitrators gave their award. In fact, the work itself was stopped. Clause 59 prevents the Court from awarding compensation on account of any factor relating to the delay which may be due to any cause whatsoever. In such circumstances, we are of the view that the appellant has also not made out any cause for compensation in regard to this claim. CLAIM NO.IX 88. As far as the question relating to interest is concerned, the arbitrator has awarded interest at 12% from the date of the claim but excluded interest from commencement of proceeding till date of award. The question relating to interest is no longer res integra as we find that the issue has been dealt with in a recent judgment of this Court in Assam State Electricity Board & Ors. v. Buildworth (P) Ltd. reported in 2017 (8) SCC 146 to which one of us was a party. As long as the agreement between the parties does not prohibit grant of interest and the matter is referred to the arbitrator, arbitrator would have power to grant interest pendente lite. The Court inter alia held as follows: 21. The next aspect of the matter relates to the award of interest for the period from 7-3-1986 to 31-12-1997. The arbitrator awarded a lump sum of Rs.20 lakhs for a period of 11 years. The High Court set aside the award of interest on the ground that Section 29 of the Arbitration Act, 1940 contemplates the award of interest only from the date of the decree. The issue as to whether interest could be awarded for the pre-reference period and pendente lite under the Act of 1940 is not res integra. In Irrigation Deptt., State of Orissa and Ors. v. G.C. Roy (1992) 1 SCC 508 , a Constitution Bench of this Court held that: (SCC pp.533-34, para 44) 44….. Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount of independently) is referred to the arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes – or refer the dispute as to interest as such – to the arbitrator, he shall have the power to award interest. This does not mean that in every case the arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view. 89. The sub Court set aside the award of interest for the period from 26.4.1988 till the date of the award namely 19.8.1988 which is the pendente lite interest. This is on the basis that arbitrator has no power to award interest on amounts found due. This is purportedly followed in the judgment of this Court in Smt. Aruna Kumari vs Government Of Andhra Pradesh And Anr. reported in AIR 1988 SC 873. This Court took the view that entering upon reference is to be taken as the date of commencement of arbitration proceedings for calculation of interest. And this Court took the view therein that there is no power to grant interest from the date of commencement of arbitration. However, in view of the decision in Jugal Kishore Prabhatilal Sharma vs. Vijayendra Prabhatilal Sharma 1992 (1) SCC 508 as followed in The National Highways Authority vs. Afcons-Apil Joint Venture 2017 (8) SCC 146 , the sub Court was not justified in setting aside interest and the interest as awarded by the arbitrator is restored. | 1[ds]26. It is our view that it will not be open to a contractor to claim compensation which arises on account of the fact that the work is delayed or hindrance caused to the work from any cause whatsoever. To demystify this further, it means that should the work be delayed on account of reasons which are attributable either partially or entirely to the employer namely the respondent herein, the claim for compensation is barred. Equally, the clause interdicts raising claim for compensation by the contractor if the employer poses hindrance to the work. If work gets delayed on account of the contractor himself, it is axiomatic that he cannot claim compensation as it would amount to a person taking advantage of his own wrong. Delay from any cause cannot found a claim for compensation. It may also happen that the work may get delayed not due to the fault of the employer. There may be natural causes such as natural calamities which may cause delay in carrying out the work. Even in such cases, in our view, Clause 59 would cast an embargo against a claim by the contractor. This interpretation gives full play to the words delays from any cause whatsoever. Equally, if there is hindrance to the work from any cause whatever, a claim for compensation would not lie29. Claim No.I as we have already noted relates to claim for extra lead for carrying out the work of quarrying stone and metal from a quarry located at a greater distance from the work site. As far as the said claim is concerned, we would think that it cannot be associated with a delay to the work for any cause whatever within the meaning of Clause 59. What is involved in the claim is the right to claim compensation by reason of the fact that the appellant-contractor though had to quarry from the specified quarry under the contract which was located nearer to the work site was compelled to carry out the work of quarrying, both stone and metal, from a quarry located at a greater distance and to transport the same to the work site. The claim is based on the expenditure which the appellant had purported to incur on this score. Though case of delay within the meaning of Clause 59 is sought to be set up, there is no support sought to be drawn from the second limb of Clause 59 which deals with hindrance to the work from any cause whatsoever. Therefore, we can safely confine our focus on the question whether the claim stands barred by virtue of Clause 59 on account of it arising out of delay. In this case, we must further notice that, in fact, before the arbitrator apparently Clause 59 was not as such pressed or at any rate seriously pressed. Before the civil court, in the counter affidavit filed, the State did not lay store by the said contention. It is in the additional counter affidavit filed that the contention based on Clause 59 was apparently raised by the State. Be that as it may, since the arbitrator is the creature of the contract, and therefore, he is bound by the contract, though late in the day, it may be, that the objection was raised, we cannot rule out the said contention as it is a matter that goes to the root of the matter. In fact, we would approve of the view taken by the High Court in regard to effect of Clause 59 qua Claim Nos.2 and 5. The appellant has, also, not pressed these claims before us. The only aspect which remains is the contention which is urged on behalf of the respondent that Clause 59 would be infringed as escalated amounts are given beyond original period are canvassed by the appellant30. We would think that while it is true that the case under Claim No.I extends to the period beyond the original period of the contract (namely 18 months from the date of handing over of site), the claim cannot be one which is on account of delay from any cause whatsoever. The claim, on the other hand is, on account of the appellant carrying out work of quarrying from a site which was located further away than the site which was specified under the contract. Be it for the original period of the contract or for the period beyond the contract, the appellant has had to quarry from the site located further away. Necessarily in regard to expenses, he must be paid for the difference in the rate.33. Under Clause (c), an award can be modified if it contains a clerical mistake or there is an error which arises from an accidental slip or omission. There cannot be any doubt that this is not a case where there is clerical mistake or an error arises from an accidental slip or omission. Lastly, the power of the court to modify extend to a case where the award is imperfect in form. Certainly, it is not the situation in the facts of the case. Of course, where the award contains an obvious error which can be amended without affecting such decision. Court has power to modify. When the Sub court modified the sale at which the amount is to be calculated would affect the decision of the arbitrator. It is not the sale of Rs. 15/ C.M., not an essential part of the decision of the arbitrator34. In the light of the above discussion and proceeding on the basis that there is no power to modify the award we would consider the legality and correctness of the civil court decreeing the claim in regard to Claim No.1 by modifying the award of the arbitrator40. Thereafter, the sub court referred to the actual calculation made in Exhibit B.3 the letter dated 23.11.1982 written by the Executive Engineer to the Superintending Engineer which is in fact relied upon by the appellant himself. The sub Court proceeded to find that the difference in rates for 2 kms and 6 kms works out to 3.23 per cu.m. and that the cost of conveyance of material of all kinds RR stones and spass as provided in the estimate is Rs.9.81 per cu.m. which was in accordance with the standard schedule rate for 2 km. lead. The rate fixed for 6 kms lead was Rs.15/- over and above the quoted rates of Rs.8.80 which is arrived apparently after deducting actual rate by which the appellant had quoted his rates which was nearly 10-12% less than the estimated rates. The result was that the arbitrator gave Rs.24/- per cu.m. as against Rs.13.75 which is without deduction. In the written submission before us, the appellant has not questioned the applicability of the clause relating to supplemental item in regard to the extra lead. Therefore, we need not be detained by the question whether the provision as such is applicable in respect of claim based on extra lead. If that be so, the question would be whether it is a case whether arbitrator has awarded Rs.15/- in place of Rs.13.75 in which case we would be inclined to agree with the appellant that the award in this regard should be sustained in its entirety. But the question is whether the arbitrator has actually awarded Rs.15/- cu.m. over and above the amount which the appellant already received on the basis of the actual lead in the contract41. The arbitrator, in fact, found that the claim of the appellant for higher rates at Rs.15/- per cu.m. is reasonable and legal and on the basis of the tabular statement which was prepared by the appellant and awarded different sums under the three different contracts. It would appear that the claim for Rs.15/- per cu.m. is based on abnormal increase in transport charges due to increase in cost of fuel, automobile spare parts etc. If escalated rates are claimed, then it may attract the wrath of Clause 59. We would think that the claim of extra lead cannot be denied. The claim of Rs.15/- per cu.m., if it is over and above the amount which is already received will be in the teeth of the contractual provision which is relied on by the sub Court for which he has not taken any exception to in which case we would think that the amount as ordered by the sub Court is to be awarded to him under this claim. This means the amount is to be worked out as provided in the letter dated 13.11.1982. In other words, the amount must be awarded on the basis of the cost of conveyance being calculated at the rate of Rs.13.75 and the amount must be calculated and paid. Mindful though we are of the limitation under Section 15 (b) of the Act to modify, we would in the facts of the case, rely on Article 142 to sustain the decision of the Sub Court under this claim42. Coming to Claim No.III, namely, on account of non-supply of food grain, we have already found that while the arbitrator has awarded the amount of compensation, the sub Court has set aside the award. The main contention of the State which found favour with the sub Court is that the clause actually provided for supply of food grain provided it is available. The arbitrator found that food grains were not supplied despite the fact that they were available and this finding by the arbitrator was found to be perverse. The claim of the appellant was that under the agreement, the appellant was to supply the labourers a certain quantity of foodgrains as part of the wages. The labourers were also making such demand as it would be beneficial to them also. The appellant therefore had to supply food grains from the market at the market value which led him to incur extra expenditure. The labourers according to appellant were not willing to work otherwise. It is necessary to advert to the actual contractual provisions in relation to supply of food grain.43. It was further provided that the labourers were to be supplied wheat at a rate not exceeding Rs.125 per quintal but the quantity to be supplied to the labourers and rates are subject to the approval of the Executive Engineer46. At first blush, the claim relating to food grain even as understood by the High court does not appear to have anything to do with compensation for delay. The case based on hindrance also does not appear to be made. We shall, however, consider the matter in some detail47. The High Court has not adverted to the clause in the contract under the heading negotiation which we have referred to. Instead the High court has proceeded on the clause which undoubtedly contemplated supply of food grain only subject to availability. The clause after the negotiation was carried out however brought about the following changes:In place of wheat, the appellant agrees to take either wheat or rice and the price at which it was to be supplied to the workers was also stipulated. The other conditions in the contract relating to the food grain remained unchanged. This means that it could be said that it was subject to availability and we have also referred to clause which provides that appellant is bound to accept the quantity at the stipulated rate, if offered. However, a significant change which was brought about was that in case of short supply of either wheat or rice compared to a specific quantity of 17,500 quintals, the appellant was given the right to claim for compensation. Therefore, this clause, in our view, brings about the change which has not been considered by the High court. Since the sub Court has given other reasons, it may be necessary to consider what sub Court has held48. The sub Court takes note of the provisions under the heading negotiation which we have referred to except the condition that in case of short supply the appellant will have the right to claim compensation on this account. The sub Court proceeds to hold the conditions are incorporated with a view to cast a duty to receive a particular quantity of food grain in lieu of cash and to supply them to labourers at a stipulated rate and it is for the benefit of the State as the State would receive the food grains under the food for work programmes under the Government of India scheme free of cost. Further, it is for the benefit of the labourers. The sub Court proceeded to further hold that the purpose of the food for work programme was to create employment and the contractor is not to get any benefit out of this condition. The contractor is bound to make record of the food grains received from the Government and supplied to the labourers at the specified rate. He cannot sell the food grains at the market rate. He is the happiest person and need not discharge the burden cast under the condition relating to food grains if food grains are not supplied. The appellant was trying to take advantage of this. There is no promise to supply a particular quantity of food grain. The appellant has no obligation to supply food grains to the labourers if the Government did not provide him food grains. The Sub Court also did not find favour with the contention of the appellant that taking the attractive clause of supply at subsidized rate, he quoted lesser rate and, therefore, for non-supply he is entitled to be compensated. It is found that the appellant is not entitled to compensation as it is not an attractive clause. The Court further found that the arbitrator was carried away by the letters written by the Engineers wherein they have opined that the contractor quoted lesser rates on account of this attractive clause. It would become an attractive clause only if the Engineers concerned permitted the appellant to misutilise the grain by selling the food grain by the contractor in the open market. The appellant is bound to pay fair wages under the contract (It is true that under the contract clause the appellant shall not pay less than the fair wages)49. It is found that department officers misunderstood the food for work in their letters. The arbitrator relied on such letters as if the Engineers are the master to interpret the term of the contract. It was further found that there is absolutely no basis that food grains were in plenty with the Government. The sub Court further finds that the reliance placed by the arbitrator at Exhibit A.22 for availability was not justified. He referred to Exhibit A.22 with annexure also. The contention of the appellant was that he promised to the labourers that he would pay a portion of their wages by way of food grain at specified rate and he had to supply the food grains at the subsidized rates as promised by purchasing the food grains at higher rates. The sub Court finds that there is no evidence produced before the arbitrator to show that he purchased food grains from the open market and supplied those food grains to the labourers at the subsidized rates. In case of supply of food grains, the appellant was bound to maintain record of proper distribution but the appellant has not produced any such register, it is reasoned by the sub Court. Next it is found that the appellant even it is true that he agreed that the workers are to be supplied a certain portion of the wages in food grains, he cannot fix wages in such a manner that the contractor would get any advantage out of it as it is not contemplated under the scheme. He has to pay the fair wages and besides fair wages he had to provide additional facilities by providing food grains at the subsidized rates. The question of supply of food grains to worker by appellant in the event of non- supply of the same by the Government did not arise. It is further found that there is no provision in the agreement to the effect that in case of failure to supply food grains the Government is liable to compensate the loss that may be sustained on account of failure of the department to supply food grains, and the arbitrator patently exceeded jurisdiction50. The first thing that stands out in the reasoning of the sub-Court is the absence of any reference to the clauses specifically under the heading negotiation which specifically confers a right of compensation in case of short supply of either wheat or rice compared to the quantity of 17,500 quintals (Agreement NO.11/78-79). This means that while the parties contemplated that a part of the wages was to be paid by way of supply of food grains at the stipulated price, the obligation of the appellant was to take the food grain supply from the Food Corporation godown and carry it to the work site. He was to further supply the said food grains to the workers at a higher specified rate in view of the fact that he would incur certain expenses. This undoubtedly was subject to availability. But introduction of the clause in the contract that in case of short supply of either wheat or rice in comparison to the actual quantity which was agreed to be supplied, the appellant will have a claim for compensation on the said count has been missed by the sub Court as also the High Court52. A perusal of the aforesaid averments will reveal that the tender document contemplated supply of wheat of a particular quantity at Rs. 115/- per quintal and the contractor was to supply at Rs.125/- per quintal to workers. Thereafter, it is stated that on a representation made by the contractor there was negotiation and an agreement was arrived at between the contractor and the department. The contractor was to receive the quantity of food grains either as wheat or rice or both. In other words, reference is made to the clause coming under negotiation. It is thereafter stated that in short, the agreement stipulated that the food grains will be supplied at specific rate which were competitive rates as against the rates in the open market. It is further alleged that the contractor took this important and attractive aspect into consideration and submitted his tender at the most competitive rate only on account of the advantage he would derive from the department53. It is to be noted that even according to the appellant, the tender documents provided for supply of wheat. The contract was settled by calling tenders. The appellant submitted his tender which turned out to be the lowest. At the time of submitting his tender the condition relating to the negotiated settlement could not have been there. If that is so, the original tender conditions contemplated supply of wheat at Rs.115/- per quintal, if available. The appellant was to supply the food grains only if the food grains were made available by the Government. Therefore, it is totally untenable for the appellant to set up a case that attracted by the clause which resulted from the representation and negotiation, he submitted his tender. May be at the time of entering into the contract following his representation and negotiation the clause was incorporated which provided for supply of rice or wheat and other terms. In other words, at the time when appellant submitted his tender which may have been lesser than the estimated rate by about 10 to 12%, the negotiated clause was not there. On this score, the case sought to be built up around the clause being attractive cannot be accepted54. Secondly, as regards the supply of food grains, the appellant is not correct in having contended that the appellant was duty bound to supply food grain even if the food grains were not supplied by the department. The sub-Court is correct in concluding that appellant was duty bound to supply food grains only if it was supplied to him by the department. This is because despite the clause resulting from negotiation, the other conditions remained intact. A perusal of the clause relating to supply of food grain would show that food grains would be supplied, if available. Again, the words if offered is conspicuous. The words in the clause which provided that the appellant shall supply food grain to the labourers is not to be considered in isolation55. The sub-Court is not correct in coming to the conclusion that the appellant was bound to pay the fair wages to the workers and he was also liable to offer food grains apart from fair wages. A perusal of the clause makes it clear that what was contemplated was if the food grains were available and supplied, the appellant was to make use of the same supplied it to the workers in lieu of wages56. There are a few aspects which remain. Firstly, what is urged before us is that the under the negotiated clause the department agreed to supply a definite quantity of food grains. In agreement No.11, it was 17500 quintals. We proceed on the basis that in other two agreements, different quantities as claimed by the appellant was mentioned. We notice that in the claim while the appellant has referred to the negotiated clause relating to supply of rice and also providing for the quantity, there is no reference to the clause that appellant will be entitled to compensation if there is short supply of food grains. This clause is also not considered either by the sub court or by the High Court.63. We are of the view that the sub Court is right in holding that the correspondence referred to by the arbitrator did not show that the food grains were actually available with the department and department was only trying to get the food grains from the administration with which the food grains was available. As long as there is some material which substantiated appellants claim before the Arbitrator, the Court hearing the petition under Article 30 and 32 would not reappraise the material to come to the conclusion that the arbitrator went wrong in arriving at a finding of fact. At the same time, if virtually there were no material then it becomes a case of no evidence. No doubt the contractual provision which provides that the appellant is to keep accounts and produce accounts relating to receipts and distribution may assume relevance when appellant receives food grains from the department and distributes. But at the same time the appellant is putting up the claim for compensation and that too a claim which runs into a fairly large sum. There would certainly be material to evidence the actual purchase and further actual supply to the workers or payment as alleged. Even assuming everything that the appellant says is correct about the fact of the negotiated settlement, there is virtually no material except the appellants statement that the appellant paid for the price of food grains to the workers. Further, the claim involves payment of price of rice at escalated rates for period beyond the contract also and it invites the wrath of Clause 59. We would therefore think that the award of the claim by the arbitrator cannot be sustained64. As regards, claim No. 4 is concerned, it arises from alleged short supply of cement. First of all, we have to find as to whether it is hit by the embargo contained in Clause 59 and also advert to the finding of the High Court. In this regard, the High Court holds that the obligation is similar in nature to the earlier claim, namely, claim no. 3 and nothing is pointed out on behalf of the appellant on facts or in details as to how it can be taken out of Clause 59. We have to ascertain what exactly is the claim raised by the contractor65. The claim in brief is as follows:Cement is one of the items to be supplied by the Department at specific issue rates. The appellant, accordingly, perceiving the same as attractive quoted 10 to 12% lesser than the estimate rate. Cement was to be supplied at the issue rate of Rs.416/- per metric tonne. Right from the beginning, there was short supply. The appellant had no other option but to get cement from other sources. Large quantities were so brought from other sources. The Department being aware agreed specifically and by conduct that they will recoup the cement. The appellant had no intention to give cement free to the Department. The quantity of cement used by the contractor for the project had been quantified and noted in the measurement book and the USR (Unstamped Receipt). The quantity of cement supplied by the Department is correctly noted in the cement issue register maintained by the Department. Recoveries had been effected without the actual issue of such quantity by the Department as evidenced by the document like USR and other entries. The appellant appended a tabular statement of quantity of cement used for the work, the quantity which was issued by the Department and the balance quantity which constituted the basis of the claim66. The arbitrator in regard to the said claim finds inter alia that in the letter dated 17.08.1980, the Engineer had stated that there is short supply and he was bringing cement from other sources and action may be taken to return the extra quantity of cement. He notes that in the counter of the Department, there is no denial about the quantity of work done by the appellant and also the quantity of cement used by him by bringing from other sources. He further finds that it is stated that the exact short supply of cement can be shown only after taking all measurements. The details in the claim statement which also include, apparently, the tabular details was not denied in the counter. Though, the cement issue register and the USR were called for by the appellant, they were not produced. Adverse inference was drawn. The arbitrator further noted that in the bill the quantity of cement used has been recovered, though the quantity has not been issued and in the last bill, more quantity was given representing part reimbursement. The letters of the Department were also found to support the case of the appellant. Referring to the objection in the counter that no vouchers were produced by the appellant, it was brushed aside as immaterial as it is found that it is proved that he was bringing cement from other sources to complete the work except a small quantity under Agreement No.14. Reliance is placed on Section 70 of the Contract Act. The argument without a plea in the counter by the Government pleader that the appellant was saving cement out of the quantity supplied by the Department was found untenable on the basis that engineers would not have permitted it. As far as, clause 10 of the Agreement prohibiting any claim for compensation for non-supply or delayed supply, the arbitrator found that appellant is only asking for return of cement brought by him and used in the construction on the assurance of the Department that it will be reimbursed. In total 3790 metric tonnes of cement were found to be brought by the appellant. Rejecting the claim of the appellant for market rate and applying the departmental issue rate of Rs.416/- per tonne different amounts were awarded under the three different contracts67. We would think that this claim cannot be said to be hit by clause 59 as appellant is not claiming compensation for any delay. On the other hand, his case is that, contrary to the agreement that he would be supplied the cement it was not supplied and he had to use cement by spending money from his pocket and he only wanted that cement actually used which is in excess of the cement issued to be given to him. More importantly, the amount awarded is at the rate fixed in the original contract and no escalation is given70. Let us see what the contract has really provided for. We are doing this for the reason that the Sub-Court set aside the award in regard to this claim. The appellant filed revisions against the judgment of the Sub-Court. We have noticed that essentially, the High Court proceeded based on the Bar under Clause 59. The matter has not been dealt with as such by the High Court. Here also after finding that Clause 59 will not come in the way of the claim, we could have remitted back the matter to the High Court for consideration of the matter. Having regard to the long efflux of time, we are undertaking the task of considering the matter71. A perusal of the contractual provisions which we have referred to yields the following inevitable result. Cement is a scarce material to be supplied by the Department. The appellant was to maintain separate ledger for the item for which cement was supplied by the Department. The issue price was Rs.416/- per metric tonne. The cost of cement at the said rate was to be recovered from the appellants bill at the issue rate. Thus, if the value of the work is Rs.100/- and the value of the cement is Rs.5/-, the appellant would get only Rs.95/-72. The next question is the effect of the other provisions which we have quoted. We have already noted that there are theoretical requirements in regard to the use of cement. It is not unnatural for the Department to prescribe for the theoretical requirement. This is to ensure that it is used exactly as per the theoretical requirement so that the structure on the one hand is built in a safe manner and at the same time nothing in excess is used so as to avoid wastage of scarce material. There are three situations which are contemplated. In the first situation, it is provided that if materials are drawn according to the schedule and are short used then the excess quantity is to be returned to the Department in good condition and for the same the contractor will not get any payment. Furthermore, if the short- used material is not returned to the Department, their cost will be recovered at the market rate or at the issue rate which is greater plus wastage charges and sales tax. An example which we may take, would be if the requisite specifications is that 10 metric tonnes of cement is to be drawn and he draws 10 metric tonnes but he actually used only 8 metric tonnes there will be a short use of 2 metric tonnes which he would have to return to the Department73. The second situation is where the materials are drawn in excess of theoretical requirements. The contract contemplates that in such a situation, the excess drawn quantity must be returned to the Department in good condition and otherwise there will be recovery at the issue rate plus 100% surcharge or market rate whichever is higher plus storage and taxes74. The third situation contemplated is that if the materials are short drawn or short used it is specifically provided that in such a situation, the saving due to short drawal/ use should be secured to the Government by recovering the cost thereto at issue rate from the contractor. Thus, in the example, we have taken if 10 metric tonnes is actual quantity as per the specifications which can be drawn but if only 8 metric tonne is drawn by the contractor while he was to use 10 metric tonnes, the saving due to short drawal was secured to the Government by recovering the cost thereto at the issue rate from the contractor. This means that instead of 10 metric tonnes, if 8 metric tonnes is drawn, the contractor would still be liable for recovery from his bill for the entire 10 metric tonnes, though, he has actually drawn only 8 metric tonnes. In respect of short used material, though, properly drawn the recovery would be in addition to the recovery for the cost of materials which is returned as we have noted above. Further, the contract contemplates that if materials are required to be procured by the contractor, he must maintain separate ledger for each of the item which are so required to be procured by the contractor75. This would mean that if the appellant had indeed secured cement from outside, the appellant was obliged under the Contract to maintain a separate ledger. Further the Contract contemplates that there could be recovery from the bill of the Contractor for the cost of cement which is actually not supplied to the contractor and it will be based on the theoretical requirement as we have already referred to above. Thus, the mere fact that there has been excess recovery meaning thereby that without issuing the cement to the appellant the amounts have been recovered would not mean that the appellant would be able to substantiate his claim that there was inadequate supply of cement. That is a matter which must be substantiated with reference to other material76. But there are two situations which can arise. Cement may be available with the Department and the Contractor draws only lesser quantity than provided in the specifications which is based on technical requirements. In such a case, undoubtedly the Clauses which we have adverted to would apply. What however would be the position if cement is not available and consequently the Contractor is not supplied and he is not in a position to draw cement. In such a scenario also, will it be a case of drawal of cement by the Contractor which is less than the specified quantum? It would be so, but it may have different implications77. At this juncture, we may look at the correspondence which may throw light. In the letter dated 30.06.1979 written by the appellant to the Executive Engineer, we find there is no mention even about the inadequate supply of cement. Next letter is dated 26.07.1980. This is a letter where reference is made to all the three contracts. There is a reference in this letter no doubt about the purchase of cement from other sources. He seeks return of the cement so that extra quantity of cement may be reimbursed. There is no reference to any particular quantity and there is no reference to which the other sources are78. The next letter is dated 16.07.1981. Here the reference is made to Agreement No.10/78-79. In this letter there is no complaint about the cement. Finally, there is letter dated 07.10.1982 which is addressed by the appellant to the Superintending Engineer. Here the reference is made to the Agreement No.11/78-79. No doubt in the body of the letter he also adverts to the other contracts. Substantially, the letter is one where he makes various complaints and finally, he makes a claim for enhancement. Here he says in this letter that there is inadequate and irregular supply of cement which affected his steady progress of work during 1979, 1980 and 1981. He says inadequate supply caused him substantial loss to the work done. A look at the correspondence by the departmental officers at this juncture may be not out of place80. From the correspondence, it would appear that the officers proceeded on the basis that there is a shortage of cement. Therefore, this appears to be a case where sufficient cement may not have been supplied to the appellant. However, it is to be remembered under Clause 10 of the agreement no right to compensation lies for short supply of cement. Here the case of the contractor appellant which is accepted by the arbitrator is that this is not a case where compensation for short supply of cement is made by the appellant. All that the appellant is seeking is to be given, is the quantity of cement, which he brought from other sources or the monetary equivalent81. We proceed on the basis that the claim for return of the cement does not involve infraction of Clause 10 which forbids compensation on account of short supply of cement. The question, however, arises whether the arbitrator has misconducted himself in arriving at the amount of cement supposedly brought from other sources by the appellant to carry out the work. As far as the monetary equivalent is concerned as we have already noted it is at the issue price fixed under the contract itself and it is not an escalated amount so the measure of the amount of reimbursement may not attract Clause 59. The only point, therefore, which remains is whether there was any basis for the arbitrator to have found that the appellant had indeed brought the quantity of cement from other sources and used it for the works in question82. The arbitrator has proceeded on the basis of the admitted correspondence between the officers to find that there is shortage of cement. The sub-court on the other hand finds that none of the correspondence by the officers indicate that the appellant was given permission to buy cement from outside. There is no indication in any of the letters written by the appellant which the other sources were from which he was procuring cement. The most important obstacle for the appellant is the clause in the contract which has been referred to by us and which is referred to by the sub-Court, namely, for procuring cement by the contractor, he must maintain ledger and which may be open to scrutiny by the officer as and when demanded. In this case, the appellant has not produced any ledger showing purchase of cement from other sources. There is no written permission produced to purchase cement from other sources. No voucher has been produced by the appellant to establish purchase of cement from outside83. The arbitrator, however, has found that even non-production of vouchers is not material as it is proved that appellant has purchased cement from outside. There are two things which apparently the arbitrator has taken note of. The arbitrator finds that there is no denial about the quantity of the work done by the contractor and also about the quantity of cement used for bringing from other sources. It is stated in the counter affidavit that exact short supply of cement can be shown only after taking over of measurement. It is further found that measurement was already taken. The second aspect is arbitrator finds that as the unstamped receipt and the cement issue register though called for by the appellant was not produced, adverse inference must be drawn. If the matter as alleged is not denied or is admitted then it may not be necessary to adduce evidence to prove the same. This principle is equally applicable before the arbitrator as it is before the court of law. Perhaps it is all the more applicable in the case of proceedings before an arbitrator84. We are in one sense handicapped by the fact that the appellant has not produced the counter affidavit filed by the State before the arbitrator. It is true that if the case pleaded by the State amounts to admission that the cement was brought from outside by the appellant and the matter was only regarding the measurement to be carried out that may give the impression that the arbitrator particularly having regard to the non-production of the unstamped receipt and cement issue register despite being called for had some justification for coming to the conclusion that the appellant had procured cement from outside. Then the further question would be the only quantity of cement which was purported to be bought from outside by the appellant85. State definitely has a case, however, that there is no evidence by the appellant having procured cement from outside sources as he has not produced vouchers as that is seen dealt with by the arbitrator. The exact quantity of cement purchased from outside is not pleaded. Instead what the appellant contended for and what was accepted by the arbitrator was that the quantum of cement which was used could be found out from the quantum of work done. This is clear from the statement even on the basis that when a particular quantum of work is done, as per the theoretical requirement for cement involved in such work, the quantity of cement actually used by the appellant has been arrived at and after deducting the quantum of cement which was actually issued, the balance amount of cement which the appellant has used for the work from outside source has been arrived at. We have referred to the contractual provision and it would be hazardous to arrive at the amount of cement, used from other sources based on quantum of work done86. But arbitrator overlooks the fact that under the contract the appellant was supposed to make entries in the ledger. A party is supposed to produce the best evidence or rather the evidence which under the contract is contemplated. The failure on the part of the appellant to produce the ledger has fatal consequences. The matter becomes further aggravated by the failure on the part of the appellant to even produce vouchers or bills in support of the claim to purchase the cement from outside sources. This is even if we are to ignore the fact that there is no written permission for purchase of cement from outside. We proceed on the basis that a contractor may without written permission but for the purpose of the work purchased cement from outside. But certainly, the fact that there are neither vouchers nor any ledger entries nor bills produced which persuades us to hold that the matter may warrant interference with the award under Section 30. We are not inclined to accept the claim87. As regards this claim, the claim appears to be that appellant collected materials and it was lying at the site. Admittedly, the appellant has not used this material for the purpose of doing the work. Only the case set up by the appellant is that he was given an assurance that he will be permitted to carry out the work and therefore, since he has spent money for the same, he must get the amount which is claimed for having spent on the material. We are of the view that insofar as the appellant has not used any of the materials to carry out the work and sets up the claim only on the basis of assurance which has not been admitted, the action of the appellant in purchasing the materials cannot result in establishing his claim for compensation. It is to be noticed that the appellant raised a claim for enhanced compensation. He alleged that there was delay on the part of the respondent on various grounds. This is apart from alleging other factors like breakout of malaria, unfavourable weather and delay in taking decision by the departmental officers, which contributed to escalation in cost. Correspondence was exchanged with the Executive Engineer and the Superintending Engineer, the Superintending Engineer and the Chief Engineer and finally between the Chief Engineer and the Government. It appears that at that stage appellant invoked the arbitration clause and a panel of arbitrators gave their award. In fact, the work itself was stopped. Clause 59 prevents the Court from awarding compensation on account of any factor relating to the delay which may be due to any cause whatsoever. In such circumstances, we are of the view that the appellant has also not made out any cause for compensation in regard to this claim. CLAIM NO.IX88. As far as the question relating to interest is concerned, the arbitrator has awarded interest at 12% from the date of the claim but excluded interest from commencement of proceeding till date of award. The question relating to interest is no longer res integra as we find that the issue has been dealt with in a recent judgment of this Court in Assam State Electricity Board & Ors. v. Buildworth (P) Ltd. reported in 2017 (8) SCC 146 to which one of us was a party. As long as the agreement between the parties does not prohibit grant of interest and the matter is referred to the arbitrator, arbitrator would have power to grant interest pendente lite.89. The sub Court set aside the award of interest for the period from 26.4.1988 till the date of the award namely 19.8.1988 which is the pendente lite interest. This is on the basis that arbitrator has no power to award interest on amounts found due. This is purportedly followed in the judgment of this Court in Smt. Aruna Kumari vs Government Of Andhra Pradesh And Anr. reported in AIR 1988 SC 873. This Court took the view that entering upon reference is to be taken as the date of commencement of arbitration proceedings for calculation of interest. And this Court took the view therein that there is no power to grant interest from the date of commencement of arbitration. However, in view of the decision in Jugal Kishore Prabhatilal Sharma vs. Vijayendra Prabhatilal Sharma 1992 (1) SCC 508 as followed in The National Highways Authority vs. Afcons-Apil Joint Venture 2017 (8) SCC 146 , the sub Court was not justified in setting aside interest and the interest as awarded by the arbitrator is restored. | 1 | 16,969 | 8,131 | ### Instruction:
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of the appellant to produce the ledger has fatal consequences. The matter becomes further aggravated by the failure on the part of the appellant to even produce vouchers or bills in support of the claim to purchase the cement from outside sources. This is even if we are to ignore the fact that there is no written permission for purchase of cement from outside. We proceed on the basis that a contractor may without written permission but for the purpose of the work purchased cement from outside. But certainly, the fact that there are neither vouchers nor any ledger entries nor bills produced which persuades us to hold that the matter may warrant interference with the award under Section 30. We are not inclined to accept the claim. CLAIM NO.VII 87. As regards this claim, the claim appears to be that appellant collected materials and it was lying at the site. Admittedly, the appellant has not used this material for the purpose of doing the work. Only the case set up by the appellant is that he was given an assurance that he will be permitted to carry out the work and therefore, since he has spent money for the same, he must get the amount which is claimed for having spent on the material. We are of the view that insofar as the appellant has not used any of the materials to carry out the work and sets up the claim only on the basis of assurance which has not been admitted, the action of the appellant in purchasing the materials cannot result in establishing his claim for compensation. It is to be noticed that the appellant raised a claim for enhanced compensation. He alleged that there was delay on the part of the respondent on various grounds. This is apart from alleging other factors like breakout of malaria, unfavourable weather and delay in taking decision by the departmental officers, which contributed to escalation in cost. Correspondence was exchanged with the Executive Engineer and the Superintending Engineer, the Superintending Engineer and the Chief Engineer and finally between the Chief Engineer and the Government. It appears that at that stage appellant invoked the arbitration clause and a panel of arbitrators gave their award. In fact, the work itself was stopped. Clause 59 prevents the Court from awarding compensation on account of any factor relating to the delay which may be due to any cause whatsoever. In such circumstances, we are of the view that the appellant has also not made out any cause for compensation in regard to this claim. CLAIM NO.IX 88. As far as the question relating to interest is concerned, the arbitrator has awarded interest at 12% from the date of the claim but excluded interest from commencement of proceeding till date of award. The question relating to interest is no longer res integra as we find that the issue has been dealt with in a recent judgment of this Court in Assam State Electricity Board & Ors. v. Buildworth (P) Ltd. reported in 2017 (8) SCC 146 to which one of us was a party. As long as the agreement between the parties does not prohibit grant of interest and the matter is referred to the arbitrator, arbitrator would have power to grant interest pendente lite. The Court inter alia held as follows: 21. The next aspect of the matter relates to the award of interest for the period from 7-3-1986 to 31-12-1997. The arbitrator awarded a lump sum of Rs.20 lakhs for a period of 11 years. The High Court set aside the award of interest on the ground that Section 29 of the Arbitration Act, 1940 contemplates the award of interest only from the date of the decree. The issue as to whether interest could be awarded for the pre-reference period and pendente lite under the Act of 1940 is not res integra. In Irrigation Deptt., State of Orissa and Ors. v. G.C. Roy (1992) 1 SCC 508 , a Constitution Bench of this Court held that: (SCC pp.533-34, para 44) 44….. Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount of independently) is referred to the arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes – or refer the dispute as to interest as such – to the arbitrator, he shall have the power to award interest. This does not mean that in every case the arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view. 89. The sub Court set aside the award of interest for the period from 26.4.1988 till the date of the award namely 19.8.1988 which is the pendente lite interest. This is on the basis that arbitrator has no power to award interest on amounts found due. This is purportedly followed in the judgment of this Court in Smt. Aruna Kumari vs Government Of Andhra Pradesh And Anr. reported in AIR 1988 SC 873. This Court took the view that entering upon reference is to be taken as the date of commencement of arbitration proceedings for calculation of interest. And this Court took the view therein that there is no power to grant interest from the date of commencement of arbitration. However, in view of the decision in Jugal Kishore Prabhatilal Sharma vs. Vijayendra Prabhatilal Sharma 1992 (1) SCC 508 as followed in The National Highways Authority vs. Afcons-Apil Joint Venture 2017 (8) SCC 146 , the sub Court was not justified in setting aside interest and the interest as awarded by the arbitrator is restored.
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receipt and cement issue register despite being called for had some justification for coming to the conclusion that the appellant had procured cement from outside. Then the further question would be the only quantity of cement which was purported to be bought from outside by the appellant85. State definitely has a case, however, that there is no evidence by the appellant having procured cement from outside sources as he has not produced vouchers as that is seen dealt with by the arbitrator. The exact quantity of cement purchased from outside is not pleaded. Instead what the appellant contended for and what was accepted by the arbitrator was that the quantum of cement which was used could be found out from the quantum of work done. This is clear from the statement even on the basis that when a particular quantum of work is done, as per the theoretical requirement for cement involved in such work, the quantity of cement actually used by the appellant has been arrived at and after deducting the quantum of cement which was actually issued, the balance amount of cement which the appellant has used for the work from outside source has been arrived at. We have referred to the contractual provision and it would be hazardous to arrive at the amount of cement, used from other sources based on quantum of work done86. But arbitrator overlooks the fact that under the contract the appellant was supposed to make entries in the ledger. A party is supposed to produce the best evidence or rather the evidence which under the contract is contemplated. The failure on the part of the appellant to produce the ledger has fatal consequences. The matter becomes further aggravated by the failure on the part of the appellant to even produce vouchers or bills in support of the claim to purchase the cement from outside sources. This is even if we are to ignore the fact that there is no written permission for purchase of cement from outside. We proceed on the basis that a contractor may without written permission but for the purpose of the work purchased cement from outside. But certainly, the fact that there are neither vouchers nor any ledger entries nor bills produced which persuades us to hold that the matter may warrant interference with the award under Section 30. We are not inclined to accept the claim87. As regards this claim, the claim appears to be that appellant collected materials and it was lying at the site. Admittedly, the appellant has not used this material for the purpose of doing the work. Only the case set up by the appellant is that he was given an assurance that he will be permitted to carry out the work and therefore, since he has spent money for the same, he must get the amount which is claimed for having spent on the material. We are of the view that insofar as the appellant has not used any of the materials to carry out the work and sets up the claim only on the basis of assurance which has not been admitted, the action of the appellant in purchasing the materials cannot result in establishing his claim for compensation. It is to be noticed that the appellant raised a claim for enhanced compensation. He alleged that there was delay on the part of the respondent on various grounds. This is apart from alleging other factors like breakout of malaria, unfavourable weather and delay in taking decision by the departmental officers, which contributed to escalation in cost. Correspondence was exchanged with the Executive Engineer and the Superintending Engineer, the Superintending Engineer and the Chief Engineer and finally between the Chief Engineer and the Government. It appears that at that stage appellant invoked the arbitration clause and a panel of arbitrators gave their award. In fact, the work itself was stopped. Clause 59 prevents the Court from awarding compensation on account of any factor relating to the delay which may be due to any cause whatsoever. In such circumstances, we are of the view that the appellant has also not made out any cause for compensation in regard to this claim. CLAIM NO.IX88. As far as the question relating to interest is concerned, the arbitrator has awarded interest at 12% from the date of the claim but excluded interest from commencement of proceeding till date of award. The question relating to interest is no longer res integra as we find that the issue has been dealt with in a recent judgment of this Court in Assam State Electricity Board & Ors. v. Buildworth (P) Ltd. reported in 2017 (8) SCC 146 to which one of us was a party. As long as the agreement between the parties does not prohibit grant of interest and the matter is referred to the arbitrator, arbitrator would have power to grant interest pendente lite.89. The sub Court set aside the award of interest for the period from 26.4.1988 till the date of the award namely 19.8.1988 which is the pendente lite interest. This is on the basis that arbitrator has no power to award interest on amounts found due. This is purportedly followed in the judgment of this Court in Smt. Aruna Kumari vs Government Of Andhra Pradesh And Anr. reported in AIR 1988 SC 873. This Court took the view that entering upon reference is to be taken as the date of commencement of arbitration proceedings for calculation of interest. And this Court took the view therein that there is no power to grant interest from the date of commencement of arbitration. However, in view of the decision in Jugal Kishore Prabhatilal Sharma vs. Vijayendra Prabhatilal Sharma 1992 (1) SCC 508 as followed in The National Highways Authority vs. Afcons-Apil Joint Venture 2017 (8) SCC 146 , the sub Court was not justified in setting aside interest and the interest as awarded by the arbitrator is restored.
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Food Corporation Of India Etc. Etc Vs. State Of Kerala | at one point viz. from the Food Corporation of India. Credit is however given where Food Corporation of India furnishes proof that it ha s already paid the tax to Food Department (RFCs) and its agencies and they (Food department and its agencies) have deposited that tax. By this procedure assessing authority has given credit of the following sums:- Year Amount of Tax 1969-70 Rs. 931249.92 1971-72 Rs. 2132428.63 1972-73 Rs. 8059065.00 ---------------------------------- Total R s. 11122743.55 In future also if Food Corporation of India gives the proof that it has paid further tax to Food Department (RFCs) and its agencies and they have deposited that tax to sales tax department (excluding the period between 15.11.71 to 18.5.73 because in this period tax was not at all points of purchases) the above procedure will be followed and after verification benefit of the deposit of tax will be given to Food Corporation of India. Thus, there is no question of multiple taxation for any period other than 15.11.1971 to 18.5.1973." 32. In view of the above, the appellants ca n work out remedy before the concerned authorities in accordance with law. There is nothing to be decided by this Court. 33. Now coming to the fourth proposition, the grievance appears to be that the appellant has been singled out for harsh treatment and there was no other dealer in foodgrains in the State of U.P. whose annual turnover would exceed Rs.10 crores. It is now well-settled that it is within the competency of the State Legislature to classify the dealers and to impose surcharge upon those who were placed in one category taking into consideration their economic superiority. A classification on the basis of gross turnover was held by this Court in the earlier case as reasonable one vide M/s Hoechst Pharmaceuticals Ltd. vs. State of Bihar. 34. We do not think that we should spend more time on this as the High Court had dealt with fairly elaborately on this issue and we see no reason to differ from the view taken by the High Court. Accordingly, the fourth proposition also is answered against the appellant. We have already dealt with the fifth and sixth propositions. 35. There is a group of special leave petitions preferred by millers. They challenged before the High Court the demand of market fee under the U.P. Krishi Utpadan Mandi Adhiniyam. 1964 on rice. The basis of their challenge was that there was no safe to demand the market fee when the rice was procured under the levy orders. According to the appellants in these matters there was compulsory acquisition of stocks under the levy orders and therefore, there was no safe. In the earlier paragraphs, we have dealt with and have arrived at a finding that the disputed transactions are sales. The same view was taken by the High Court and consequently, the writ petitions filed by the millers were dismissed. We affirm the view of the High Court. 36. The Food Corporation of India have distributed fertilizers to the State Governments/their nominees under Fertilizer (Control) Order. The levy of sales tax on such distribution of fertilizers was challenged by the food Corporation of India. The High Courts of Andhra Pradesh and Kerala upheld the levy and aggrieved by that, the Food Corporation of India have filed civil appeals. The argument advanced before the High Court on behalf of the FCI was discharging a statutory obligation vested in it under the Control Order and there is no element of volition or consensus of agreement in those transactions. This was negatived by the High Courts holding that there is no provision in the Control Order excluding the exercise of violation of the freedom of contract totally. Only the price of fertilizers was controlled, quoted standard has been prescribed for mixture of fertilizers and persons carrying on the business of selling fertilizers are required to obtain licences. It was also noticed by the High Court that there was no statutory compulsion in the matter of sale or purchase of fertilizers and parties are left to enter into consensual contractual agreement in the exercise of their volition subject only to the restrictions regarding price fixation, quota requirements etc. 37. We have in the earlier paragraphs noticed that the appellants have conceded that there are sales in the transactions falling under Control Orders. The challenge was only regarding transaction falling under Levy Orders. Wee have held that the transaction falling under Levy Orders would amount to sales. Therefore, we have no difficulty or hesitation in approving the view taken by the high Court that the activity of distribution of fertilizers amounts to sale exigible to sale tax. 38. We have noticed in the course of the discussion that the Punjab and Haryana high Court has taken a different view and we have also held that the view taken by the Punjab and Haryana High Court was not the correct one, the State of Punjab aggrieved by the decision of the Punjab and Haryana High Court has filed appeals. Our discussion concerning the six propositions would equally apply to the appeals filed by the State of Punjab and one additional point arises in the appeals filed by the State of Punjab, namely, whether the gunny bags used in the course of the disputed transactions as a packing material are liable to be included in the taxable turnover or not? The Punjab and Haryana High Court held that the gunny bag in these transactions are not exigible to tax as the contents, namely, rice/paddy are not liable to tax as there was no sale at all. An additional ground given by the High Court was that there was nothing to show whether there was any agreement between the parties for the sale of gunny bags. Now that we have held that the disputed transactions are exigible to tax, one reason given by the High Court as mentioned above, cannot be supported. Further, the facts are not clear regarding the agreement. | 0[ds]"This case, in our opinion, is squarely covered by a recent decision of this Court delivered by a Bench of seven Judges in Vishnu Agencies (Pvt. Ltd.) vs. Commercial Tax Officer. The High Court in the case of Jagatjit Distilling and Allied Industries Ltd. had mainly relied upon the decision of this Court to hold that the transactions in that case were not sales. The said decisions are New India Sugar Mills Ltd. vs. Commissioner of Sales Tax, Bihar and Chittar Mal Narain Das vs. Commissioner of Sales Tax, U.P. In the case of Vishnu Agencies, the former case was considered in paragraphs 37 to 39 of AIR volume at pages 463-464 (pages 51-52 of 42 STC) and it was held that the view expressed in the majority judgment was not good law and the one contained in the minority judgment was approvedtherefore, answer the principal common point holding that the levy procurement is a sale/purchase and therefore, falls within the purview of Entry 54. List II of Seventh Schedule to the Constitution. The States were competent to levy sales/purchase tax on such transactionsIn the light of the rulings of this Court referred to above in detail, we are unable to agree with the submission of the learned Senior Counsel for the appellants that there was no area left for consensual agreement in the parties to the procurement transactions. The view taken by the Full Bench of the Allahabad High Court in Ram Bilas Ram Gopal case is the correct view, and the High Court of Allahabad (Lucknow Bench) was right in applying the same in the judgment under appeal. We also hold that the view of the Punjab and Haryana High Court challenged before us in some of these cases taking a different view does not lay down the correct law. To put the matter beyond controversy, we hold, with respect, that the decision in Chitter Mals case is no longer good law in the light of later larger Bench decisions of this Court referred tow coming to the second proposition regarding the constitutionality of Explanation (II) added to Section 3(D)(1) of the U.P. Sales Tax Act, it must be answered against the assessee following our answer to proposition No.1 and in favour of the Revenue. We have held that the transactions in questions are all sale and exigible to tax under the State Sales Tax Act. The contention that the Explanation newly added was ultra vires Entry 54 List II of the Seventh Schedule to the Constitution, on the assumption that the disputed transactions are not sales and, therefore, by a fiction the impugned Explanation cannot deem a sale which is not a sale, is without substance. The learned counsel fairly concedes that it is open to the State Legislature to shape a point at which tax is levied, if may be equally permissible to the legislature to treat a particular sale or purchase as the first sale or purchase, but it cannot by legislative device or fiction of law make something as a sale/purchase which in fact is not. This argument has to fail in view of our answer to proposition No.1 in favour of the Revenue. We, therefore, do not find any substance in the proposition No.2 advanced by the learned Senior counsel for the appellantsRegarding the third proposition concerning retrospective effect and consequently, compelling the appellants to pay tax twice on the same transaction, the learned counsel appearing for the State has filed a written note explaining the position in the following manner:-"2. From 15.11.1971 to 18.5.1973, on the one hand State Government and its agencies were liable to pay tax on their purchase and on the other hand Food Corporation of India was also liable to pay tax on his purchase as tax on Foodgrains, was at all points of purchasesTherefore, Explanation-II of Section 3D(i) of U.P. Sales Tax Act which deals only with first purchase, does not affect this period. From 2.9.1976 to 30.4.1977 tax on foodgrains was at the point of sale to consumer. The Explanation II of Section 3D(i) of U.P. Sales Tax Act, which deals only with first purchase does not affect this period. However, if any tax has been levied upon Food Corporation of India for this period, it is on account of their failure to supply the requisite forms etc., whereupon the liability, under the law, devolves on them. There is no challenge specifically to any such assessment3. For the period commencing from 1968-69 and afterwards (excluding the period 15.11.71 to 18.5 .73 and 2.9.76 to 30.4.77) provision of Explanation-II of section 3D(i) is applicable because this Explanation-II in section 3D(i) has been inserted with complete retrospective effect by the U.P. Sales Tax (Amendment and validation) Act, 1976 (U.P. Act No.23 of 1976) published on 20.5.76. Therefore, Food Corporation of India had been taxed rightly because under the provision of Explanation-II of section 3D(i), the tax is collected only at one point viz. from the Food Corporation of India. Credit is however given where Food Corporation of India furnishes proof that it ha s already paid the tax to Food Department (RFCs) and its agencies and they (Food department and its agencies) have deposited that tax. By this procedure assessing authority has given credit of the following sums:-Year Amount of Tax 1969-70 Rs. 931249.92 1971-72 Rs. 2132428.63 1972-73 Rs. 8059065.00---------------------------------- Total R s. 11122743.55In future also if Food Corporation of India gives the proof that it has paid further tax to Food Department (RFCs) and its agencies and they have deposited that tax to sales tax department (excluding the period between 15.11.71 to 18.5.73 because in this period tax was not at all points of purchases) the above procedure will be followed and after verification benefit of the deposit of tax will be given to Food Corporation of India. Thus, there is no question of multiple taxation for any period other than 15.11.1971 to 18.5.1973."In view of the above, the appellants ca n work out remedy before the concerned authorities in accordance with law. There is nothing to be decided by this Court.Now coming to the fourth proposition, the grievance appears to be that the appellant has been singled out for harsh treatment and there was no other dealer in foodgrains in the State of U.P. whose annual turnover would exceed Rs.10 crores. It is now well-settled that it is within the competency of the State Legislature to classify the dealers and to impose surcharge upon those who were placed in one category taking into consideration their economic superiority. A classification on the basis of gross turnover was held by this Court in the earlier case as reasonable one vide M/s Hoechst Pharmaceuticals Ltd. vs. State ofe do not think that we should spend more time on this as the High Court had dealt with fairly elaborately on this issue and we see no reason to differ from the view taken by the High Court. Accordingly, the fourth proposition also is answered against the appellant. We have already dealt with the fifth and sixth propositionsThere is a group of special leave petitions preferred by millers. They challenged before the High Court the demand of market fee under the U.P. Krishi Utpadan Mandi Adhiniyam. 1964 on rice. The basis of their challenge was that there was no safe to demand the market fee when the rice was procured under the levy orders. According to the appellants in these matters there was compulsory acquisition of stocks under the levy orders and therefore, there was no safe. In the earlier paragraphs, we have dealt with and have arrived at a finding that the disputed transactions are sales. The same view was taken by the High Court and consequently, the writ petitions filed by the millers were dismissed. We affirm the view of the High CourtThe Food Corporation of India have distributed fertilizers to the State Governments/their nominees under Fertilizer (Control) Order. The levy of sales tax on such distribution of fertilizers was challenged by the food Corporation of India. The High Courts of Andhra Pradesh and Kerala upheld the levy and aggrieved by that, the Food Corporation of India have filed civil appeals. The argument advanced before the High Court on behalf of the FCI was discharging a statutory obligation vested in it under the Control Order and there is no element of volition or consensus of agreement in those transactions. This was negatived by the High Courts holding that there is no provision in the Control Order excluding the exercise of violation of the freedom of contract totally. Only the price of fertilizers was controlled, quoted standard has been prescribed for mixture of fertilizers and persons carrying on the business of selling fertilizers are required to obtain licences. It was also noticed by the High Court that there was no statutory compulsion in the matter of sale or purchase of fertilizers and parties are left to enter into consensual contractual agreement in the exercise of their volition subject only to the restrictions regarding price fixation, quota requirementse have in the earlier paragraphs noticed that the appellants have conceded that there are sales in the transactions falling under Control Orders. The challenge was only regarding transaction falling under Levy Orders. Wee have held that the transaction falling under Levy Orders would amount to sales. Therefore, we have no difficulty or hesitation in approving the view taken by the high Court that the activity of distribution of fertilizers amounts to sale exigible to sale taxWe have noticed in the course of the discussion that the Punjab and Haryana high Court has taken a different view and we have also held that the view taken by the Punjab and Haryana High Court was not the correct one, the State of Punjab aggrieved by the decision of the Punjab and Haryana High Court has filed appeals. Our discussion concerning the six propositions would equally apply to the appeals filed by the State of Punjab and one additional point arises in the appeals filed by the State of Punjab, namely, whether the gunny bags used in the course of the disputed transactions as a packing material are liable to be included in the taxable turnover or not? The Punjab and Haryana High Court held that the gunny bag in these transactions are not exigible to tax as the contents, namely, rice/paddy are not liable to tax as there was no sale at all. An additional ground given by the High Court was that there was nothing to show whether there was any agreement between the parties for the sale of gunny bags. Now that we have held that the disputed transactions are exigible to tax, one reason given by the High Court as mentioned above, cannot be supported. Further, the facts are not clear regarding the agreement. In the circumstances, we consider that the matter has to be left open to be decided by the Assessing Officer while finalising the assessment in the light of then the result all the civil appeals except Civil Appeal Nos. 890, 892, 893 and 1995 of 1978 file d by the State of Punjab and Haryana are dismissed. The appeals filed by the States of Punjab and Haryana are allowed as indicated above. There will be no order as to costsThe issue as to who has to pay the market fee has been argued and answered by the High Court but was not argued before us. Hence, it was not decided. Therefore, the civil appeals arising out of S.L.P.(C)Nos. 8772-74/87, 6775/91, 747/91, 7478/91, 8541/91, 15719/94 and 13131/91 preferred by the Rice Miller will be posted for further arguments on this issue in Court. | 0 | 11,248 | 2,161 | ### Instruction:
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at one point viz. from the Food Corporation of India. Credit is however given where Food Corporation of India furnishes proof that it ha s already paid the tax to Food Department (RFCs) and its agencies and they (Food department and its agencies) have deposited that tax. By this procedure assessing authority has given credit of the following sums:- Year Amount of Tax 1969-70 Rs. 931249.92 1971-72 Rs. 2132428.63 1972-73 Rs. 8059065.00 ---------------------------------- Total R s. 11122743.55 In future also if Food Corporation of India gives the proof that it has paid further tax to Food Department (RFCs) and its agencies and they have deposited that tax to sales tax department (excluding the period between 15.11.71 to 18.5.73 because in this period tax was not at all points of purchases) the above procedure will be followed and after verification benefit of the deposit of tax will be given to Food Corporation of India. Thus, there is no question of multiple taxation for any period other than 15.11.1971 to 18.5.1973." 32. In view of the above, the appellants ca n work out remedy before the concerned authorities in accordance with law. There is nothing to be decided by this Court. 33. Now coming to the fourth proposition, the grievance appears to be that the appellant has been singled out for harsh treatment and there was no other dealer in foodgrains in the State of U.P. whose annual turnover would exceed Rs.10 crores. It is now well-settled that it is within the competency of the State Legislature to classify the dealers and to impose surcharge upon those who were placed in one category taking into consideration their economic superiority. A classification on the basis of gross turnover was held by this Court in the earlier case as reasonable one vide M/s Hoechst Pharmaceuticals Ltd. vs. State of Bihar. 34. We do not think that we should spend more time on this as the High Court had dealt with fairly elaborately on this issue and we see no reason to differ from the view taken by the High Court. Accordingly, the fourth proposition also is answered against the appellant. We have already dealt with the fifth and sixth propositions. 35. There is a group of special leave petitions preferred by millers. They challenged before the High Court the demand of market fee under the U.P. Krishi Utpadan Mandi Adhiniyam. 1964 on rice. The basis of their challenge was that there was no safe to demand the market fee when the rice was procured under the levy orders. According to the appellants in these matters there was compulsory acquisition of stocks under the levy orders and therefore, there was no safe. In the earlier paragraphs, we have dealt with and have arrived at a finding that the disputed transactions are sales. The same view was taken by the High Court and consequently, the writ petitions filed by the millers were dismissed. We affirm the view of the High Court. 36. The Food Corporation of India have distributed fertilizers to the State Governments/their nominees under Fertilizer (Control) Order. The levy of sales tax on such distribution of fertilizers was challenged by the food Corporation of India. The High Courts of Andhra Pradesh and Kerala upheld the levy and aggrieved by that, the Food Corporation of India have filed civil appeals. The argument advanced before the High Court on behalf of the FCI was discharging a statutory obligation vested in it under the Control Order and there is no element of volition or consensus of agreement in those transactions. This was negatived by the High Courts holding that there is no provision in the Control Order excluding the exercise of violation of the freedom of contract totally. Only the price of fertilizers was controlled, quoted standard has been prescribed for mixture of fertilizers and persons carrying on the business of selling fertilizers are required to obtain licences. It was also noticed by the High Court that there was no statutory compulsion in the matter of sale or purchase of fertilizers and parties are left to enter into consensual contractual agreement in the exercise of their volition subject only to the restrictions regarding price fixation, quota requirements etc. 37. We have in the earlier paragraphs noticed that the appellants have conceded that there are sales in the transactions falling under Control Orders. The challenge was only regarding transaction falling under Levy Orders. Wee have held that the transaction falling under Levy Orders would amount to sales. Therefore, we have no difficulty or hesitation in approving the view taken by the high Court that the activity of distribution of fertilizers amounts to sale exigible to sale tax. 38. We have noticed in the course of the discussion that the Punjab and Haryana high Court has taken a different view and we have also held that the view taken by the Punjab and Haryana High Court was not the correct one, the State of Punjab aggrieved by the decision of the Punjab and Haryana High Court has filed appeals. Our discussion concerning the six propositions would equally apply to the appeals filed by the State of Punjab and one additional point arises in the appeals filed by the State of Punjab, namely, whether the gunny bags used in the course of the disputed transactions as a packing material are liable to be included in the taxable turnover or not? The Punjab and Haryana High Court held that the gunny bag in these transactions are not exigible to tax as the contents, namely, rice/paddy are not liable to tax as there was no sale at all. An additional ground given by the High Court was that there was nothing to show whether there was any agreement between the parties for the sale of gunny bags. Now that we have held that the disputed transactions are exigible to tax, one reason given by the High Court as mentioned above, cannot be supported. Further, the facts are not clear regarding the agreement.
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all points of purchases) the above procedure will be followed and after verification benefit of the deposit of tax will be given to Food Corporation of India. Thus, there is no question of multiple taxation for any period other than 15.11.1971 to 18.5.1973."In view of the above, the appellants ca n work out remedy before the concerned authorities in accordance with law. There is nothing to be decided by this Court.Now coming to the fourth proposition, the grievance appears to be that the appellant has been singled out for harsh treatment and there was no other dealer in foodgrains in the State of U.P. whose annual turnover would exceed Rs.10 crores. It is now well-settled that it is within the competency of the State Legislature to classify the dealers and to impose surcharge upon those who were placed in one category taking into consideration their economic superiority. A classification on the basis of gross turnover was held by this Court in the earlier case as reasonable one vide M/s Hoechst Pharmaceuticals Ltd. vs. State ofe do not think that we should spend more time on this as the High Court had dealt with fairly elaborately on this issue and we see no reason to differ from the view taken by the High Court. Accordingly, the fourth proposition also is answered against the appellant. We have already dealt with the fifth and sixth propositionsThere is a group of special leave petitions preferred by millers. They challenged before the High Court the demand of market fee under the U.P. Krishi Utpadan Mandi Adhiniyam. 1964 on rice. The basis of their challenge was that there was no safe to demand the market fee when the rice was procured under the levy orders. According to the appellants in these matters there was compulsory acquisition of stocks under the levy orders and therefore, there was no safe. In the earlier paragraphs, we have dealt with and have arrived at a finding that the disputed transactions are sales. The same view was taken by the High Court and consequently, the writ petitions filed by the millers were dismissed. We affirm the view of the High CourtThe Food Corporation of India have distributed fertilizers to the State Governments/their nominees under Fertilizer (Control) Order. The levy of sales tax on such distribution of fertilizers was challenged by the food Corporation of India. The High Courts of Andhra Pradesh and Kerala upheld the levy and aggrieved by that, the Food Corporation of India have filed civil appeals. The argument advanced before the High Court on behalf of the FCI was discharging a statutory obligation vested in it under the Control Order and there is no element of volition or consensus of agreement in those transactions. This was negatived by the High Courts holding that there is no provision in the Control Order excluding the exercise of violation of the freedom of contract totally. Only the price of fertilizers was controlled, quoted standard has been prescribed for mixture of fertilizers and persons carrying on the business of selling fertilizers are required to obtain licences. It was also noticed by the High Court that there was no statutory compulsion in the matter of sale or purchase of fertilizers and parties are left to enter into consensual contractual agreement in the exercise of their volition subject only to the restrictions regarding price fixation, quota requirementse have in the earlier paragraphs noticed that the appellants have conceded that there are sales in the transactions falling under Control Orders. The challenge was only regarding transaction falling under Levy Orders. Wee have held that the transaction falling under Levy Orders would amount to sales. Therefore, we have no difficulty or hesitation in approving the view taken by the high Court that the activity of distribution of fertilizers amounts to sale exigible to sale taxWe have noticed in the course of the discussion that the Punjab and Haryana high Court has taken a different view and we have also held that the view taken by the Punjab and Haryana High Court was not the correct one, the State of Punjab aggrieved by the decision of the Punjab and Haryana High Court has filed appeals. Our discussion concerning the six propositions would equally apply to the appeals filed by the State of Punjab and one additional point arises in the appeals filed by the State of Punjab, namely, whether the gunny bags used in the course of the disputed transactions as a packing material are liable to be included in the taxable turnover or not? The Punjab and Haryana High Court held that the gunny bag in these transactions are not exigible to tax as the contents, namely, rice/paddy are not liable to tax as there was no sale at all. An additional ground given by the High Court was that there was nothing to show whether there was any agreement between the parties for the sale of gunny bags. Now that we have held that the disputed transactions are exigible to tax, one reason given by the High Court as mentioned above, cannot be supported. Further, the facts are not clear regarding the agreement. In the circumstances, we consider that the matter has to be left open to be decided by the Assessing Officer while finalising the assessment in the light of then the result all the civil appeals except Civil Appeal Nos. 890, 892, 893 and 1995 of 1978 file d by the State of Punjab and Haryana are dismissed. The appeals filed by the States of Punjab and Haryana are allowed as indicated above. There will be no order as to costsThe issue as to who has to pay the market fee has been argued and answered by the High Court but was not argued before us. Hence, it was not decided. Therefore, the civil appeals arising out of S.L.P.(C)Nos. 8772-74/87, 6775/91, 747/91, 7478/91, 8541/91, 15719/94 and 13131/91 preferred by the Rice Miller will be posted for further arguments on this issue in Court.
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M/s Jeevan Diesels & Electricals Ltd Vs. M/s Jasbir Singh Chadha (Huf) & Another | case. This Court is unable to accept the aforesaid contention. In Karam Kapahi (supra) a Bench of this Court analyzed the principles of Order 12 Rule 6 of the Code and held that in the facts of that case there was clear admission on the part of the lessee about non- payment of lease rent. The said admission was made by the lessee in several proceedings apart from its pleading in the suit. In view of such clear admission, the Court applied the principles of Order 12 Rule 6 in the case of Karam Kapahi (supra). The principles of law laid down in Karam Kapahi (supra) can be followed in this case only if there is a clear and unequivocal admission of the case of the plaintiff by the appellant. 13. Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. This question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi (supra) may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation.14. In Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India and others reported in (2000) 7 SCC 120 the provision of Order 12 Rule 6 came up for consideration before this Court. This Court on a detailed consideration of the provisions of Order 12 Rule 6 made it clear "wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed" the principle will apply. In the instant case it cannot be said that there is a clear admission of the case of the respondents-plaintiffs about termination of tenancy by the appellant in its written statement or in its reply to the petition of the respondents-plaintiffs under Order 12 Rule 6.15. It may be noted here that in this case parties have confined their case of admission to their pleading only. The learned counsel for the respondents- plaintiffs fairly stated before this Court that he is not invoking the case of admission `otherwise than on pleading. That being the position this Court finds that in the pleadings of the appellant there is no clear admission of the case of respondents-plaintiffs. 16. In this connection reference may be made to an old decision of the Court of Appeal between Gilbert vs. Smith reported in 1875-76 (2) Chancery Division 686. Dealing with the principles of Order XL, Rule 11, which was a similar provision in English Law, Lord Justice James held, "if there was anything clearly admitted upon which something ought to be done, the plaintiff might come to the Court at once to have that thing done, without any further delay or expense" (see page 687). Lord Justice Mellish expressing the same opinion made the position further clear by saying, "it must, however, be such an admission of facts as would shew that the plaintiff is clearly entitled to the order asked for". The learned Judge made it further clear by holding, "the rule was not meant to apply when there is any serious question of law to be argued. But if there is an admission on the pleading which clearly entitles the plaintiff to an order, then the intention was that he should not have to wait but might at once obtain any order" (see page 689).17. In another old decision of the Court of Appeal in the case of Hughes vs. London, Edinburgh, and Glasgow Assurance Company (Limited) reported in The Times Law Reports 1891-92 Volume 8 at page 81, similar principles were laid down by Lord Justice Lopes, wherein His Lordship held "judgment ought not to be signed upon admissions in a pleading or an affidavit, unless the admissions were clear and unequivocal". Both Lord Justice Esher and Lord Justice Fry concurred with the opinion of Lord Justice Lopes.18. In yet another decision of the Court of Appeal in Landergan vs. Feast reported in The Law Times Reports 1886-87 Volume 85 at page 42, in an appeal from Chancery Division, Lord Justice Lindley and Lord Justice Lopes held that party is not entitled to apply under the aforesaid rule unless there is a clear admission that the money is due and recoverable in the action in which the admission is made.19. The decision in Landergan (supra) was followed by the Division Bench of Calcutta High Court in Koramall Ramballav vs. Mongilal Dalimchand reported in 23 Calcutta Weekly Notes (1918-19) 1017. Chief Justice Sanderson, speaking for the Bench, accepted the formulation of Lord Justice Lopes and held that admission in Order 12, Rule 6 must be a "clear admission".20. In the case of J.C. Galstaun vs. E.D. Sassoon & Co., Ltd., reported in 27 Calcutta Weekly Notes (1922-23) 783, a Bench of Calcutta High Court presided over by Honble Justice Sir Asutosh Mookerjee sitting with Justice Rankin while construing the provisions of Order 12, Rule 6 of the Code followed the aforesaid decision in Hughes (supra) and also the view of Lord Justice Lopes in Landergan (supra) and held that these provisions are attracted "where the other party has made a plain admission entitling the former to succeed. This rule applies where there is a clear admission of the facts on the face of which it is impossible for the party making it to succeed". In saying so His Lordship quoted the observation of Justice Sargent in Ellis vs. Allen [(1914) 1 Ch. D. 904] {See page 787. 21. Similar view has been expressed by Chief Justice Broadway in the case of Abdul Rahman and brothers vs. Parbati Devi reported in AIR 1933 Lahore 403. The learned Chief Justice held that before a Court can act under order 12, Rule 6, the admission must be clear and unambiguous. | 1[ds]13. Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. This question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi (supra) may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation.14. In Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India and others reported in (2000) 7 SCC 120 the provision of Order 12 Rule 6 came up for consideration before this Court. This Court on a detailed consideration of the provisions of Order 12 Rule 6 made it clear "wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed" the principle will apply. In the instant case it cannot be said that there is a clear admission of the case of theabout termination of tenancy by the appellant in its written statement or in its reply to the petition of theunder Order 12 Rule 6.15. It may be noted here that in this case parties have confined their case of admission to their pleading only. The learned counsel for the respondentsIn this connection reference may be made to an old decision of the Court of Appeal between Gilbert vs. Smith reported in(2) Chancery Division 686.Dealing with the principles of Order XL, Rule 11, which was a similar provision in English Law, Lord Justice James held, "if there was anything clearly admitted upon which something ought to be done, the plaintiff might come to the Court at once to have that thing done, without any further delay or expense" (see page 687). Lord Justice Mellish expressing the same opinion made the position further clear by saying, "it must, however, be such an admission of facts as would shew that the plaintiff is clearly entitled to the order asked for". The learned Judge made it further clear by holding, "the rule was not meant to apply when there is any serious question of law to be argued. But if there is an admission on the pleading which clearly entitles the plaintiff to an order, then the intention was that he should notit but might at once obtain any order" (see page 689).17. In another old decision of the Court of Appeal in the case of Hughes vs. London, Edinburgh, and Glasgow Assurance Company (Limited) reported in The Times Law ReportsVolume 8 at page 81, similar principles were laid down by Lord Justice Lopes, wherein His Lordship held "judgment ought not to be signed upon admissions in a pleading or an affidavit, unless the admissions were clear and unequivocal". Both Lord Justice Esher and Lord Justice Fry concurred with the opinion of Lord Justice Lopes.18. In yet another decision of the Court of Appeal in Landergan vs. Feast reported in TheLaw Times Reports85 at page42, in an appeal from Chancery Division, Lord Justice Lindley and Lord Justice Lopes held that party is not entitled to apply under the aforesaid rule unless there is a clear admission that the money is due and recoverable in the action in which the admission is made.19. The decision in Landergan (supra) was followed by the Division Bench of Calcutta High Court in Koramall Ramballav vs. Mongilal Dalimchand reported in 23 Calcutta Weekly Notes1017. Chief Justice Sanderson, speaking for the Bench, accepted the formulation of Lord Justice Lopes and held that admission in Order 12, Rule 6 must be a "clear admission".20. In the case of J.C. Galstaun vs. E.D. Sassoon & Co., Ltd., reported in 27 Calcutta Weekly Notes783, a Bench of Calcutta High Court presided over by Honble Justice Sir Asutosh Mookerjee sitting with Justice Rankin while construing the provisions of Order 12, Rule 6 of the Code followed the aforesaid decision in Hughes (supra) and also the view of Lord Justice Lopes in Landergan (supra) and held that these provisions are attracted "where the other party has made a plain admission entitling the former to succeed. This rule applies where there is a clear admission of the facts on the face of which it is impossible for the party making it to succeed". In saying so His Lordship quoted the observation ofJustice Sargent in Ellis vs. Allen1 Ch. D. | 1 | 2,228 | 841 | ### Instruction:
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case. This Court is unable to accept the aforesaid contention. In Karam Kapahi (supra) a Bench of this Court analyzed the principles of Order 12 Rule 6 of the Code and held that in the facts of that case there was clear admission on the part of the lessee about non- payment of lease rent. The said admission was made by the lessee in several proceedings apart from its pleading in the suit. In view of such clear admission, the Court applied the principles of Order 12 Rule 6 in the case of Karam Kapahi (supra). The principles of law laid down in Karam Kapahi (supra) can be followed in this case only if there is a clear and unequivocal admission of the case of the plaintiff by the appellant. 13. Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. This question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi (supra) may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation.14. In Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India and others reported in (2000) 7 SCC 120 the provision of Order 12 Rule 6 came up for consideration before this Court. This Court on a detailed consideration of the provisions of Order 12 Rule 6 made it clear "wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed" the principle will apply. In the instant case it cannot be said that there is a clear admission of the case of the respondents-plaintiffs about termination of tenancy by the appellant in its written statement or in its reply to the petition of the respondents-plaintiffs under Order 12 Rule 6.15. It may be noted here that in this case parties have confined their case of admission to their pleading only. The learned counsel for the respondents- plaintiffs fairly stated before this Court that he is not invoking the case of admission `otherwise than on pleading. That being the position this Court finds that in the pleadings of the appellant there is no clear admission of the case of respondents-plaintiffs. 16. In this connection reference may be made to an old decision of the Court of Appeal between Gilbert vs. Smith reported in 1875-76 (2) Chancery Division 686. Dealing with the principles of Order XL, Rule 11, which was a similar provision in English Law, Lord Justice James held, "if there was anything clearly admitted upon which something ought to be done, the plaintiff might come to the Court at once to have that thing done, without any further delay or expense" (see page 687). Lord Justice Mellish expressing the same opinion made the position further clear by saying, "it must, however, be such an admission of facts as would shew that the plaintiff is clearly entitled to the order asked for". The learned Judge made it further clear by holding, "the rule was not meant to apply when there is any serious question of law to be argued. But if there is an admission on the pleading which clearly entitles the plaintiff to an order, then the intention was that he should not have to wait but might at once obtain any order" (see page 689).17. In another old decision of the Court of Appeal in the case of Hughes vs. London, Edinburgh, and Glasgow Assurance Company (Limited) reported in The Times Law Reports 1891-92 Volume 8 at page 81, similar principles were laid down by Lord Justice Lopes, wherein His Lordship held "judgment ought not to be signed upon admissions in a pleading or an affidavit, unless the admissions were clear and unequivocal". Both Lord Justice Esher and Lord Justice Fry concurred with the opinion of Lord Justice Lopes.18. In yet another decision of the Court of Appeal in Landergan vs. Feast reported in The Law Times Reports 1886-87 Volume 85 at page 42, in an appeal from Chancery Division, Lord Justice Lindley and Lord Justice Lopes held that party is not entitled to apply under the aforesaid rule unless there is a clear admission that the money is due and recoverable in the action in which the admission is made.19. The decision in Landergan (supra) was followed by the Division Bench of Calcutta High Court in Koramall Ramballav vs. Mongilal Dalimchand reported in 23 Calcutta Weekly Notes (1918-19) 1017. Chief Justice Sanderson, speaking for the Bench, accepted the formulation of Lord Justice Lopes and held that admission in Order 12, Rule 6 must be a "clear admission".20. In the case of J.C. Galstaun vs. E.D. Sassoon & Co., Ltd., reported in 27 Calcutta Weekly Notes (1922-23) 783, a Bench of Calcutta High Court presided over by Honble Justice Sir Asutosh Mookerjee sitting with Justice Rankin while construing the provisions of Order 12, Rule 6 of the Code followed the aforesaid decision in Hughes (supra) and also the view of Lord Justice Lopes in Landergan (supra) and held that these provisions are attracted "where the other party has made a plain admission entitling the former to succeed. This rule applies where there is a clear admission of the facts on the face of which it is impossible for the party making it to succeed". In saying so His Lordship quoted the observation of Justice Sargent in Ellis vs. Allen [(1914) 1 Ch. D. 904] {See page 787. 21. Similar view has been expressed by Chief Justice Broadway in the case of Abdul Rahman and brothers vs. Parbati Devi reported in AIR 1933 Lahore 403. The learned Chief Justice held that before a Court can act under order 12, Rule 6, the admission must be clear and unambiguous.
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13. Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. This question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi (supra) may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation.14. In Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India and others reported in (2000) 7 SCC 120 the provision of Order 12 Rule 6 came up for consideration before this Court. This Court on a detailed consideration of the provisions of Order 12 Rule 6 made it clear "wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed" the principle will apply. In the instant case it cannot be said that there is a clear admission of the case of theabout termination of tenancy by the appellant in its written statement or in its reply to the petition of theunder Order 12 Rule 6.15. It may be noted here that in this case parties have confined their case of admission to their pleading only. The learned counsel for the respondentsIn this connection reference may be made to an old decision of the Court of Appeal between Gilbert vs. Smith reported in(2) Chancery Division 686.Dealing with the principles of Order XL, Rule 11, which was a similar provision in English Law, Lord Justice James held, "if there was anything clearly admitted upon which something ought to be done, the plaintiff might come to the Court at once to have that thing done, without any further delay or expense" (see page 687). Lord Justice Mellish expressing the same opinion made the position further clear by saying, "it must, however, be such an admission of facts as would shew that the plaintiff is clearly entitled to the order asked for". The learned Judge made it further clear by holding, "the rule was not meant to apply when there is any serious question of law to be argued. But if there is an admission on the pleading which clearly entitles the plaintiff to an order, then the intention was that he should notit but might at once obtain any order" (see page 689).17. In another old decision of the Court of Appeal in the case of Hughes vs. London, Edinburgh, and Glasgow Assurance Company (Limited) reported in The Times Law ReportsVolume 8 at page 81, similar principles were laid down by Lord Justice Lopes, wherein His Lordship held "judgment ought not to be signed upon admissions in a pleading or an affidavit, unless the admissions were clear and unequivocal". Both Lord Justice Esher and Lord Justice Fry concurred with the opinion of Lord Justice Lopes.18. In yet another decision of the Court of Appeal in Landergan vs. Feast reported in TheLaw Times Reports85 at page42, in an appeal from Chancery Division, Lord Justice Lindley and Lord Justice Lopes held that party is not entitled to apply under the aforesaid rule unless there is a clear admission that the money is due and recoverable in the action in which the admission is made.19. The decision in Landergan (supra) was followed by the Division Bench of Calcutta High Court in Koramall Ramballav vs. Mongilal Dalimchand reported in 23 Calcutta Weekly Notes1017. Chief Justice Sanderson, speaking for the Bench, accepted the formulation of Lord Justice Lopes and held that admission in Order 12, Rule 6 must be a "clear admission".20. In the case of J.C. Galstaun vs. E.D. Sassoon & Co., Ltd., reported in 27 Calcutta Weekly Notes783, a Bench of Calcutta High Court presided over by Honble Justice Sir Asutosh Mookerjee sitting with Justice Rankin while construing the provisions of Order 12, Rule 6 of the Code followed the aforesaid decision in Hughes (supra) and also the view of Lord Justice Lopes in Landergan (supra) and held that these provisions are attracted "where the other party has made a plain admission entitling the former to succeed. This rule applies where there is a clear admission of the facts on the face of which it is impossible for the party making it to succeed". In saying so His Lordship quoted the observation ofJustice Sargent in Ellis vs. Allen1 Ch. D.
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Kirpal Kaur and another Vs. Ritesh and others | submitted that as such there are concurrent findings of facts recorded by all the courts below on the execution of the agreement executed by Gurmeet Singh in favour of Jai Parkash. It is submitted that all the courts below have also believed the payment of sale consideration by the vendee to the vendor. It is contended that the said findings of facts recorded by all the courts below are not required to be interfered with by this Court, in exercise of powers under Article 136 of the Constitution of India. 4.2 It is further contended that, as such, it was never the case on behalf of the defendants before the trial Court that agreement dated 11.02.2004 was a loan agreement/security document. It is submitted that before the trial Court, the defendants totally denied the execution of the agreement dated 11.02.2004 by Gurmeet Singh and receipt of Rs.3,50,000/-. That for the first time before the first appellate Court, it was the case on behalf of the defendants that agreement dated 11.02.2004 was a loan agreement/security document. 4.3 It is further submitted by learned counsel appearing on behalf of the respondents – original plaintiffs that even the trial Court also held that the agreement was validly executed between Gurmeet Singh and Jai Parkash for a valuable consideration. However, the trial Court refused to pass a decree for specific performance solely on the ground that the agreement might have been executed as a security document for repayment of a loan. Therefore, the trial Court, instead of granting the relief of specific performance, passed a decree for return of earnest money. It is contended that the defendants did not prefer any appeal before the first appellate Court against the findings recorded by the trial Court on the execution of the agreement dated 11.02.2004 between Gurmeet Singh and Jai Parkash and on the payment of Rs. 3,50,000/- paid by vendee to the vendor. That, in fact, the original plaintiffs preferred the appeal before the first appellate Court against refusal of the decree for specific performance. 4.4 It is urged that, both, the first appellate Court as well as the High Court have rightly observed and held that agreement dated 11.02.2004 cannot be said to be a loan agreement and/or security document. Therefore, the first appellate Court rightly passed a decree of specific performance which is rightly confirmed by the High Court. 4.5 Making the above submissions, it is prayed to dismiss the present appeal. 5. We have heard learned counsel for the respective parties at length. At the outset, it is required to be noted that as such there are concurrent findings of facts recorded by all the courts below on the execution of the agreement dated 11.02.2004 by Gurmeet Singh in favour of Jai Parkash. There are concurrent findings of fact recorded by all the courts below on the payment of part sale consideration of Rs.3,50,000/- by the vendee to the vendor. The trial Court refused to grant the relief of specific performance solely on the ground that the agreement might have been executed as a security document for repayment of loan. However, as observed hereinabove, even the trial Court also specifically held that the agreement was validly executed between Gurmeet Singh and Jai Parkash for a sale consideration. The plaintiffs preferred the appeal before the first appellate Court against refusal to pass a decree for specific performance. The defendants did not prefer any appeal before the first appellate Court against the findings recorded by the trial Court on execution of the agreement and on payment of part sale consideration. Therefore, the findings recorded by the trial Court that the agreement was validly executed for a sale consideration has attained finality. 6. On a careful consideration of the agreement dated 11.02.2004, the first appellate Court and the High Court have observed and held that the agreement dated 11.02.2004 cannot be said to be a loan agreement and/or security document, as alleged by the defendants. We have also gone through and considered the agreement dated 11.02.2004. On reading the entire agreement, it cannot be said that the agreement dated 11.02.2004 can be said to be a loan agreement and/or security document. Merely because in the document the purpose of sale of the property was stated to be for the marriage expenses, the document which otherwise can be said to be an agreement to sell, will not become a loan agreement and/or security document. If the agreement as a whole is read, we find that it is an agreement to sell. Both, the first appellate Court and the High Court have rightly not accepted the case on behalf of the defendants that the agreement is a loan agreement and/or security document. At this stage, it is required to be noted that as such it was never the case on behalf of the defendants before the trial Court that the agreement is a loan agreement and/or security document. Before the trial Court, the defendants denied totally the very execution of the agreement and receipt of Rs.3,50,000/-, which has been rightly disbelieved even by the trial Court. It appears that before the first appellate Court, for the first time, the defendants came out with a case that the agreement is a loan agreement and/or security document. 7. Once the execution of the agreement to sell for a sale consideration has been believed and it has been found that Jai Parkash and thereafter, the original plaintiffs were always ready and willing to perform their part under the agreement and in fact they remained present before the Sub Registrar, Nilokheri on 10.02.2005, which has been established and proved, the decree for specific performance is rightly passed by the first appellate Court, which is rightly confirmed by the High Court. In the facts and circumstances, clauses (a) & (c) of Section 20 of the Specific Relief Act shall not be applicable and/or attracted. We are in complete agreement with the view taken by the first appellate Court and the High Court. | 0[ds]At the outset, it is required to be noted that as such there are concurrent findings of facts recorded by all the courts below on the execution of the agreement dated 11.02.2004 by Gurmeet Singh in favour of Jai Parkash. There are concurrent findings of fact recorded by all the courts below on the payment of part sale consideration of Rs.3,50,000/- by the vendee to the vendor. The trial Court refused to grant the relief of specific performance solely on the ground that the agreement might have been executed as a security document for repayment of loan. However, as observed hereinabove, even the trial Court also specifically held that the agreement was validly executed between Gurmeet Singh and Jai Parkash for a sale consideration. The plaintiffs preferred the appeal before the first appellate Court against refusal to pass a decree for specific performance. The defendants did not prefer any appeal before the first appellate Court against the findings recorded by the trial Court on execution of the agreement and on payment of part sale consideration. Therefore, the findings recorded by the trial Court that the agreement was validly executed for a sale consideration has attained finality.6. On a careful consideration of the agreement dated 11.02.2004, the first appellate Court and the High Court have observed and held that the agreement dated 11.02.2004 cannot be said to be a loan agreement and/or security document, as alleged by the defendants. We have also gone through and considered the agreement dated 11.02.2004. On reading the entire agreement, it cannot be said that the agreement dated 11.02.2004 can be said to be a loan agreement and/or security document. Merely because in the document the purpose of sale of the property was stated to be for the marriage expenses, the document which otherwise can be said to be an agreement to sell, will not become a loan agreement and/or security document. If the agreement as a whole is read, we find that it is an agreement to sell. Both, the first appellate Court and the High Court have rightly not accepted the case on behalf of the defendants that the agreement is a loan agreement and/or security document. At this stage, it is required to be noted that as such it was never the case on behalf of the defendants before the trial Court that the agreement is a loan agreement and/or security document. Before the trial Court, the defendants denied totally the very execution of the agreement and receipt of Rs.3,50,000/-, which has been rightly disbelieved even by the trial Court. It appears that before the first appellate Court, for the first time, the defendants came out with a case that the agreement is a loan agreement and/or security document.7. Once the execution of the agreement to sell for a sale consideration has been believed and it has been found that Jai Parkash and thereafter, the original plaintiffs were always ready and willing to perform their part under the agreement and in fact they remained present before the Sub Registrar, Nilokheri on 10.02.2005, which has been established and proved, the decree for specific performance is rightly passed by the first appellate Court, which is rightly confirmed by the High Court. In the facts and circumstances, clauses (a) & (c) of Section 20 of the Specific Relief Act shall not be applicable and/or attracted. We are in complete agreement with the view taken by the first appellate Court and the High Court. | 0 | 2,500 | 628 | ### 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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submitted that as such there are concurrent findings of facts recorded by all the courts below on the execution of the agreement executed by Gurmeet Singh in favour of Jai Parkash. It is submitted that all the courts below have also believed the payment of sale consideration by the vendee to the vendor. It is contended that the said findings of facts recorded by all the courts below are not required to be interfered with by this Court, in exercise of powers under Article 136 of the Constitution of India. 4.2 It is further contended that, as such, it was never the case on behalf of the defendants before the trial Court that agreement dated 11.02.2004 was a loan agreement/security document. It is submitted that before the trial Court, the defendants totally denied the execution of the agreement dated 11.02.2004 by Gurmeet Singh and receipt of Rs.3,50,000/-. That for the first time before the first appellate Court, it was the case on behalf of the defendants that agreement dated 11.02.2004 was a loan agreement/security document. 4.3 It is further submitted by learned counsel appearing on behalf of the respondents – original plaintiffs that even the trial Court also held that the agreement was validly executed between Gurmeet Singh and Jai Parkash for a valuable consideration. However, the trial Court refused to pass a decree for specific performance solely on the ground that the agreement might have been executed as a security document for repayment of a loan. Therefore, the trial Court, instead of granting the relief of specific performance, passed a decree for return of earnest money. It is contended that the defendants did not prefer any appeal before the first appellate Court against the findings recorded by the trial Court on the execution of the agreement dated 11.02.2004 between Gurmeet Singh and Jai Parkash and on the payment of Rs. 3,50,000/- paid by vendee to the vendor. That, in fact, the original plaintiffs preferred the appeal before the first appellate Court against refusal of the decree for specific performance. 4.4 It is urged that, both, the first appellate Court as well as the High Court have rightly observed and held that agreement dated 11.02.2004 cannot be said to be a loan agreement and/or security document. Therefore, the first appellate Court rightly passed a decree of specific performance which is rightly confirmed by the High Court. 4.5 Making the above submissions, it is prayed to dismiss the present appeal. 5. We have heard learned counsel for the respective parties at length. At the outset, it is required to be noted that as such there are concurrent findings of facts recorded by all the courts below on the execution of the agreement dated 11.02.2004 by Gurmeet Singh in favour of Jai Parkash. There are concurrent findings of fact recorded by all the courts below on the payment of part sale consideration of Rs.3,50,000/- by the vendee to the vendor. The trial Court refused to grant the relief of specific performance solely on the ground that the agreement might have been executed as a security document for repayment of loan. However, as observed hereinabove, even the trial Court also specifically held that the agreement was validly executed between Gurmeet Singh and Jai Parkash for a sale consideration. The plaintiffs preferred the appeal before the first appellate Court against refusal to pass a decree for specific performance. The defendants did not prefer any appeal before the first appellate Court against the findings recorded by the trial Court on execution of the agreement and on payment of part sale consideration. Therefore, the findings recorded by the trial Court that the agreement was validly executed for a sale consideration has attained finality. 6. On a careful consideration of the agreement dated 11.02.2004, the first appellate Court and the High Court have observed and held that the agreement dated 11.02.2004 cannot be said to be a loan agreement and/or security document, as alleged by the defendants. We have also gone through and considered the agreement dated 11.02.2004. On reading the entire agreement, it cannot be said that the agreement dated 11.02.2004 can be said to be a loan agreement and/or security document. Merely because in the document the purpose of sale of the property was stated to be for the marriage expenses, the document which otherwise can be said to be an agreement to sell, will not become a loan agreement and/or security document. If the agreement as a whole is read, we find that it is an agreement to sell. Both, the first appellate Court and the High Court have rightly not accepted the case on behalf of the defendants that the agreement is a loan agreement and/or security document. At this stage, it is required to be noted that as such it was never the case on behalf of the defendants before the trial Court that the agreement is a loan agreement and/or security document. Before the trial Court, the defendants denied totally the very execution of the agreement and receipt of Rs.3,50,000/-, which has been rightly disbelieved even by the trial Court. It appears that before the first appellate Court, for the first time, the defendants came out with a case that the agreement is a loan agreement and/or security document. 7. Once the execution of the agreement to sell for a sale consideration has been believed and it has been found that Jai Parkash and thereafter, the original plaintiffs were always ready and willing to perform their part under the agreement and in fact they remained present before the Sub Registrar, Nilokheri on 10.02.2005, which has been established and proved, the decree for specific performance is rightly passed by the first appellate Court, which is rightly confirmed by the High Court. In the facts and circumstances, clauses (a) & (c) of Section 20 of the Specific Relief Act shall not be applicable and/or attracted. We are in complete agreement with the view taken by the first appellate Court and the High Court.
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At the outset, it is required to be noted that as such there are concurrent findings of facts recorded by all the courts below on the execution of the agreement dated 11.02.2004 by Gurmeet Singh in favour of Jai Parkash. There are concurrent findings of fact recorded by all the courts below on the payment of part sale consideration of Rs.3,50,000/- by the vendee to the vendor. The trial Court refused to grant the relief of specific performance solely on the ground that the agreement might have been executed as a security document for repayment of loan. However, as observed hereinabove, even the trial Court also specifically held that the agreement was validly executed between Gurmeet Singh and Jai Parkash for a sale consideration. The plaintiffs preferred the appeal before the first appellate Court against refusal to pass a decree for specific performance. The defendants did not prefer any appeal before the first appellate Court against the findings recorded by the trial Court on execution of the agreement and on payment of part sale consideration. Therefore, the findings recorded by the trial Court that the agreement was validly executed for a sale consideration has attained finality.6. On a careful consideration of the agreement dated 11.02.2004, the first appellate Court and the High Court have observed and held that the agreement dated 11.02.2004 cannot be said to be a loan agreement and/or security document, as alleged by the defendants. We have also gone through and considered the agreement dated 11.02.2004. On reading the entire agreement, it cannot be said that the agreement dated 11.02.2004 can be said to be a loan agreement and/or security document. Merely because in the document the purpose of sale of the property was stated to be for the marriage expenses, the document which otherwise can be said to be an agreement to sell, will not become a loan agreement and/or security document. If the agreement as a whole is read, we find that it is an agreement to sell. Both, the first appellate Court and the High Court have rightly not accepted the case on behalf of the defendants that the agreement is a loan agreement and/or security document. At this stage, it is required to be noted that as such it was never the case on behalf of the defendants before the trial Court that the agreement is a loan agreement and/or security document. Before the trial Court, the defendants denied totally the very execution of the agreement and receipt of Rs.3,50,000/-, which has been rightly disbelieved even by the trial Court. It appears that before the first appellate Court, for the first time, the defendants came out with a case that the agreement is a loan agreement and/or security document.7. Once the execution of the agreement to sell for a sale consideration has been believed and it has been found that Jai Parkash and thereafter, the original plaintiffs were always ready and willing to perform their part under the agreement and in fact they remained present before the Sub Registrar, Nilokheri on 10.02.2005, which has been established and proved, the decree for specific performance is rightly passed by the first appellate Court, which is rightly confirmed by the High Court. In the facts and circumstances, clauses (a) & (c) of Section 20 of the Specific Relief Act shall not be applicable and/or attracted. We are in complete agreement with the view taken by the first appellate Court and the High Court.
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City Corner Vs. Personal Asstt. To Collector & Addl. District, Magistrate,N | The District Magistrate considered that the explanation offered was a routine one and was not convincing.2. Section 12 of the Andhra Pradesh (Andhra Area) Places of public Resort Act enables the District Magistrate to call for and examine the record, of any proceeding taken under the Act, to call for any report in connection therewith, to make or cause to be made any further enquiry and to pass any order which the authority holding the proceeding might have passed. Under section 9 any authority granting a licence may for reasons recorded in writing, revoke or suspend the same when he has reason to believe:(a) that the licence has been fraudulently obtained;(b) that the enclosed place or building has been used for other purposes of public resort or entertainment than that for which the licence was granted; and(c) that the place or building can no longer be safely used for the purpose for which the licence was granted.Undoubtedly none of the reasons applied in this case. Under section 7 if the authority is satisfied(a) that the enclosed place or building may safely be used for the purpose of public resort or entertainment proposed;(b) that no objection, arising from its situation, ownership, or the purpose proposed, exists,he shall grant to the applicant a written licence. The only ground in this section applicable to the present case would be the purpose pro posed.3. The argument before us was that the power of the District Magistrate to revoke the licence under s. 12 can be for only any of the grounds mentioned in s. 9. The power under s. 12 is to pass any order which the authority holding the proceeding might have passed" that is, an order granting revoking or suspending. In other words, if the authority competent to grant the licence refuses, the District Magistrate in exercise of his power under s. 12 may grant the licence and vice-versa, Similarly he can revoke or suspend the licence granted by the authority or where the authority has revoked or suspended the licence cancel that order. In other words the power under s. 12 is to pass the kind of order which might be passed under section 7 or 9. The reasons f or which this power can he exercised are not restricted to those mentioned in section 7 or 9. The revisional power under s. 12 is not a limited one. It is as wide as that of the original authority. The considerations which the District Magistrate took into account in revoking the appellants licence were the same as those which were before the Village Panchayat when it decided to grant the licence. The revising authority is entitled on the same material to take a view different from that of the authority whose order is revised.4. But the main ground of attack against the order of cancellation is that in making it the district Magistrate had failed to observe the principles of natural justice. The order that the District Magistrate passed is a quasi- judicial order and therefore the appellant is right in contending that the principles of natural justice should have been followed before that order was passed. It is now well established by decisions of this Court that such is the requirement of law even where the statute in question itself does not so provide. It is also well established that the principles of natural justice do not necessarily conform to a fixed formula, nor is it a procrustean bed into which all proceedings must be fitted. The principles of natural justice will always depend upon the facts of each case. The learned Judges of the High Court examined the various documents the copies of which had been asked for by the appellant and came to the conclusion that the show cause notice issued to him contained a summary of all those documents which was sufficient to enable the appellant to make his representation. We cannot say that this conclusion is wrong. It is not always necessary that the documents asked for should itself be furnished provided the substance of those documents is furnished, always provided, however, that the summary is not misleading. Such is not the case here. But when the appellant asked for the original documents he could at least have been told that he had already been given a summary of the documents which was sufficient to enable him to make his representation and he could make his fuller representation as he had promised in his earlier so called interim reply. The District Magistrates characterisation of the interim reply of the appellant as a routine one is not correct. After all the opinion of the Village Panchayat which is a representative body of all the villagers is entitled to great if not greater weight than that of the Mitramandli and the Town Yuvajanasangham, the composition of which or the strength of which we do not know. The Village Panchayat was al so competent on a consideration of all the facts to form its own opinion. The opinions of representative bodies should not be lightly brushed aside unless of course there is reason to think that they have acted out of considerations other than relevant. We are of opinion that the order passed by the District Magistrate post-haste immediately he received the appellants reply without either giving him the copies asked for or at least telling him that the material already furnished was sufficient to enable him to make his representation and if he had ally further representation to make he could do so offends the principles of natural justice. We are aware that we are dealing with an appeal questioning the proceedings initiated under Article 226 of the Constitution where the power of the court is a limited one, that is to say, limited to cases where there is any error of law apparent on the face of the record. But the observance of the principles of natural justice is fundamental to the discharge of any quasi-judicial function. | 1[ds]The power under s. 12 is to pass any order which the authority holding the proceeding might have passed" that is, an order granting revoking or suspending. In other words, if the authority competent to grant the licence refuses, the District Magistrate in exercise of his power under s. 12 may grant the licence andy he can revoke or suspend the licence granted by the authority or where the authority has revoked or suspended the licence cancel that order. In other words the power under s. 12 is to pass the kind of order which might be passed under section 7 or 9. The reasons f or which this power can he exercised are not restricted to those mentioned in section 7 or 9.The revisional power under s. 12 is not a limited one. It is as wide as that of the original authority. The considerations which the District Magistrate took into account in revoking the appellants licence were the same as those which were before the Village Panchayat when it decided to grant the licence. The revising authority is entitled on the same material to take a view different from that of the authority whose order isthe main ground of attack against the order of cancellation is that in making it the district Magistrate had failed to observe the principles of natural justice. The order that the District Magistrate passed is al order and therefore the appellant is right in contending that the principles of natural justice should have been followed before that order was passed.It is now well established by decisions of this Court that such is the requirement of law even where the statute in question itself does not so provide. It is also well established that the principles of natural justice do not necessarily conform to a fixed formula, nor is it a procrustean bed into which all proceedings must be fitted. The principles of natural justice will always depend upon the facts of each case. The learned Judges of the High Court examined the various documents the copies of which had been asked for by the appellant and came to the conclusion that the show cause notice issued to him contained a summary of all those documents which was sufficient to enable the appellant to make his representation. We cannot say that this conclusion is wrong. It is not always necessary that the documents asked for should itself be furnished provided the substance of those documents is furnished, always provided, however, that the summary is not misleading. Such is not the case here. But when the appellant asked for the original documents he could at least have been told that he had already been given a summary of the documents which was sufficient to enable him to make his representation and he could make his fuller representation as he had promised in his earlier so called interim reply. The District Magistrates characterisation of the interim reply of the appellant as a routine one is not correct. After all the opinion of the Village Panchayat which is a representative body of all the villagers is entitled to great if not greater weight than that of the Mitramandli and the Town Yuvajanasangham, the composition of which or the strength of which we do not know. The Village Panchayat was al so competent on a consideration of all the facts to form its own opinion. The opinions of representative bodies should not be lightly brushed aside unless of course there is reason to think that they have acted out of considerations other than relevant. We are of opinion that the order passed by the District Magistrate post-haste immediately he received the appellants reply without either giving him the copies asked for or at least telling him that the material already furnished was sufficient to enable him to make his representation and if he had ally further representation to make he could do so offends the principles of natural justice. We are aware that we are dealing with an appeal questioning the proceedings initiated under Article 226 of the Constitution where the power of the court is a limited one, that is to say, limited to cases where there is any error of law apparent on the face of the record. But the observance of the principles of natural justice is fundamental to the discharge of any quasi-judicialrevisional power under s. 12 is not a limited one. It is as wide as that of the original authority. The considerations which the District Magistrate took into account in revoking the appellants licence were the same as those which were before the Village Panchayat when it decided to grant the licence. The revising authority is entitled on the same material to take a view different from that of the authority whose order isis now well established by decisions of this Court that such is the requirement of law even where the statute in question itself does not so provide. It is also well established that the principles of natural justice do not necessarily conform to a fixed formula, nor is it a procrustean bed into which all proceedings must be fitted. The principles of natural justice will always depend upon the facts of each case. The learned Judges of the High Court examined the various documents the copies of which had been asked for by the appellant and came to the conclusion that the show cause notice issued to him contained a summary of all those documents which was sufficient to enable the appellant to make his representation. We cannot say that this conclusion is wrong. It is not always necessary that the documents asked for should itself be furnished provided the substance of those documents is furnished, always provided, however, that the summary is not misleading. Such is not the case here. But when the appellant asked for the original documents he could at least have been told that he had already been given a summary of the documents which was sufficient to enable him to make his representation and he could make his fuller representation as he had promised in his earlier so called interim reply. The District Magistrates characterisation of the interim reply of the appellant as a routine one is not correct. After all the opinion of the Village Panchayat which is a representative body of all the villagers is entitled to great if not greater weight than that of the Mitramandli and the Town Yuvajanasangham, the composition of which or the strength of which we do not know. The Village Panchayat was al so competent on a consideration of all the facts to form its own opinion. The opinions of representative bodies should not be lightly brushed aside unless of course there is reason to think that they have acted out of considerations other than relevant. We are of opinion that the order passed by the District Magistrateimmediately he received the appellants reply without either giving him the copies asked for or at least telling him that the material already furnished was sufficient to enable him to make his representation and if he had ally further representation to make he could do so offends the principles of natural justice. We are aware that we are dealing with an appeal questioning the proceedings initiated under Article 226 of the Constitution where the power of the court is a limited one, that is to say, limited to cases where there is any error of law apparent on the face of the record. But the observance of the principles of natural justice is fundamental to the discharge of any | 1 | 1,510 | 1,332 | ### Instruction:
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The District Magistrate considered that the explanation offered was a routine one and was not convincing.2. Section 12 of the Andhra Pradesh (Andhra Area) Places of public Resort Act enables the District Magistrate to call for and examine the record, of any proceeding taken under the Act, to call for any report in connection therewith, to make or cause to be made any further enquiry and to pass any order which the authority holding the proceeding might have passed. Under section 9 any authority granting a licence may for reasons recorded in writing, revoke or suspend the same when he has reason to believe:(a) that the licence has been fraudulently obtained;(b) that the enclosed place or building has been used for other purposes of public resort or entertainment than that for which the licence was granted; and(c) that the place or building can no longer be safely used for the purpose for which the licence was granted.Undoubtedly none of the reasons applied in this case. Under section 7 if the authority is satisfied(a) that the enclosed place or building may safely be used for the purpose of public resort or entertainment proposed;(b) that no objection, arising from its situation, ownership, or the purpose proposed, exists,he shall grant to the applicant a written licence. The only ground in this section applicable to the present case would be the purpose pro posed.3. The argument before us was that the power of the District Magistrate to revoke the licence under s. 12 can be for only any of the grounds mentioned in s. 9. The power under s. 12 is to pass any order which the authority holding the proceeding might have passed" that is, an order granting revoking or suspending. In other words, if the authority competent to grant the licence refuses, the District Magistrate in exercise of his power under s. 12 may grant the licence and vice-versa, Similarly he can revoke or suspend the licence granted by the authority or where the authority has revoked or suspended the licence cancel that order. In other words the power under s. 12 is to pass the kind of order which might be passed under section 7 or 9. The reasons f or which this power can he exercised are not restricted to those mentioned in section 7 or 9. The revisional power under s. 12 is not a limited one. It is as wide as that of the original authority. The considerations which the District Magistrate took into account in revoking the appellants licence were the same as those which were before the Village Panchayat when it decided to grant the licence. The revising authority is entitled on the same material to take a view different from that of the authority whose order is revised.4. But the main ground of attack against the order of cancellation is that in making it the district Magistrate had failed to observe the principles of natural justice. The order that the District Magistrate passed is a quasi- judicial order and therefore the appellant is right in contending that the principles of natural justice should have been followed before that order was passed. It is now well established by decisions of this Court that such is the requirement of law even where the statute in question itself does not so provide. It is also well established that the principles of natural justice do not necessarily conform to a fixed formula, nor is it a procrustean bed into which all proceedings must be fitted. The principles of natural justice will always depend upon the facts of each case. The learned Judges of the High Court examined the various documents the copies of which had been asked for by the appellant and came to the conclusion that the show cause notice issued to him contained a summary of all those documents which was sufficient to enable the appellant to make his representation. We cannot say that this conclusion is wrong. It is not always necessary that the documents asked for should itself be furnished provided the substance of those documents is furnished, always provided, however, that the summary is not misleading. Such is not the case here. But when the appellant asked for the original documents he could at least have been told that he had already been given a summary of the documents which was sufficient to enable him to make his representation and he could make his fuller representation as he had promised in his earlier so called interim reply. The District Magistrates characterisation of the interim reply of the appellant as a routine one is not correct. After all the opinion of the Village Panchayat which is a representative body of all the villagers is entitled to great if not greater weight than that of the Mitramandli and the Town Yuvajanasangham, the composition of which or the strength of which we do not know. The Village Panchayat was al so competent on a consideration of all the facts to form its own opinion. The opinions of representative bodies should not be lightly brushed aside unless of course there is reason to think that they have acted out of considerations other than relevant. We are of opinion that the order passed by the District Magistrate post-haste immediately he received the appellants reply without either giving him the copies asked for or at least telling him that the material already furnished was sufficient to enable him to make his representation and if he had ally further representation to make he could do so offends the principles of natural justice. We are aware that we are dealing with an appeal questioning the proceedings initiated under Article 226 of the Constitution where the power of the court is a limited one, that is to say, limited to cases where there is any error of law apparent on the face of the record. But the observance of the principles of natural justice is fundamental to the discharge of any quasi-judicial function.
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requirement of law even where the statute in question itself does not so provide. It is also well established that the principles of natural justice do not necessarily conform to a fixed formula, nor is it a procrustean bed into which all proceedings must be fitted. The principles of natural justice will always depend upon the facts of each case. The learned Judges of the High Court examined the various documents the copies of which had been asked for by the appellant and came to the conclusion that the show cause notice issued to him contained a summary of all those documents which was sufficient to enable the appellant to make his representation. We cannot say that this conclusion is wrong. It is not always necessary that the documents asked for should itself be furnished provided the substance of those documents is furnished, always provided, however, that the summary is not misleading. Such is not the case here. But when the appellant asked for the original documents he could at least have been told that he had already been given a summary of the documents which was sufficient to enable him to make his representation and he could make his fuller representation as he had promised in his earlier so called interim reply. The District Magistrates characterisation of the interim reply of the appellant as a routine one is not correct. After all the opinion of the Village Panchayat which is a representative body of all the villagers is entitled to great if not greater weight than that of the Mitramandli and the Town Yuvajanasangham, the composition of which or the strength of which we do not know. The Village Panchayat was al so competent on a consideration of all the facts to form its own opinion. The opinions of representative bodies should not be lightly brushed aside unless of course there is reason to think that they have acted out of considerations other than relevant. We are of opinion that the order passed by the District Magistrate post-haste immediately he received the appellants reply without either giving him the copies asked for or at least telling him that the material already furnished was sufficient to enable him to make his representation and if he had ally further representation to make he could do so offends the principles of natural justice. We are aware that we are dealing with an appeal questioning the proceedings initiated under Article 226 of the Constitution where the power of the court is a limited one, that is to say, limited to cases where there is any error of law apparent on the face of the record. But the observance of the principles of natural justice is fundamental to the discharge of any quasi-judicialrevisional power under s. 12 is not a limited one. It is as wide as that of the original authority. The considerations which the District Magistrate took into account in revoking the appellants licence were the same as those which were before the Village Panchayat when it decided to grant the licence. The revising authority is entitled on the same material to take a view different from that of the authority whose order isis now well established by decisions of this Court that such is the requirement of law even where the statute in question itself does not so provide. It is also well established that the principles of natural justice do not necessarily conform to a fixed formula, nor is it a procrustean bed into which all proceedings must be fitted. The principles of natural justice will always depend upon the facts of each case. The learned Judges of the High Court examined the various documents the copies of which had been asked for by the appellant and came to the conclusion that the show cause notice issued to him contained a summary of all those documents which was sufficient to enable the appellant to make his representation. We cannot say that this conclusion is wrong. It is not always necessary that the documents asked for should itself be furnished provided the substance of those documents is furnished, always provided, however, that the summary is not misleading. Such is not the case here. But when the appellant asked for the original documents he could at least have been told that he had already been given a summary of the documents which was sufficient to enable him to make his representation and he could make his fuller representation as he had promised in his earlier so called interim reply. The District Magistrates characterisation of the interim reply of the appellant as a routine one is not correct. After all the opinion of the Village Panchayat which is a representative body of all the villagers is entitled to great if not greater weight than that of the Mitramandli and the Town Yuvajanasangham, the composition of which or the strength of which we do not know. The Village Panchayat was al so competent on a consideration of all the facts to form its own opinion. The opinions of representative bodies should not be lightly brushed aside unless of course there is reason to think that they have acted out of considerations other than relevant. We are of opinion that the order passed by the District Magistrateimmediately he received the appellants reply without either giving him the copies asked for or at least telling him that the material already furnished was sufficient to enable him to make his representation and if he had ally further representation to make he could do so offends the principles of natural justice. We are aware that we are dealing with an appeal questioning the proceedings initiated under Article 226 of the Constitution where the power of the court is a limited one, that is to say, limited to cases where there is any error of law apparent on the face of the record. But the observance of the principles of natural justice is fundamental to the discharge of any
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Amar Chand Inani Vs. Union Of India | to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words the suit instituted in the trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court (see the decisions in Hirachand Succaram Gandhy v. G. I. P. Rly. Co., AIR 1928 Bom 421 , Bimla Prasad Mukerji v. Lal Moni Devi, AIR 1926 Cal 355, and Ram Kishun v. Ashirbad, ILR 29 Pat 699 = (AIR 1950 Pat 478 ). Therefore, the presentation of the plaint in the Karnal Court on March 2, 1959, cannot be deemed to be a presentation of it on that day in the trial Court. 9. Counsel for the appellant contended that the Karnal Court had jurisdiction to entertain the plaint presented to it on March 2, 1959, and, therefore, that was the proper Court for the purpose of Section 4 of the Act and that the suit was filed within time. He said that although the order passed by the Panipat Court on October 28, 1959, holding that it had no jurisdiction to entertain the plaint and returning it for presentation to the proper Court, was not appealed from, the appellant is not precluded from challenging the finding in the order that Mohri Railway Station is not within the jurisdiction of the Karnal Court. On the other hand, counsel for the respondent contended that since an order passed under Order 7, Rule 10 of the Civil Procedure Code, returning a plaint for presentation in the proper Court, was appealable under Order 43 Rule 1 (a) the appellant is precluded from challenging the correctness of the finding of the Court that Mohri Railway Station was not within its jurisdiction as no appeal was preferred from that Order by the appellant. Counsel said that as that order has become final, it would constitute res judicata and the appellant cannot challenge its correctness in an appeal from the decree. Counsel further said that Section 105 of the Civil Procedure Code which enables a party to challenge the correctness of an interlocutory order whether appealable or non-appelable when an appeal is preferred from the decree in the case has no application for the reason that the order passed by the Panipat Court cannot be deemed to be an order passed in the suit in which the decree was passed by the trial Court, but a final order which terminated the proceedings in the Panipat Court. To put it in other words, the argument was that since the suit in the trial Court was not a continuation of the suit which was filed in the Karnal Court, the order returning the plaint cannot be deemed to be an order passed in the suit as instituted in the trial Court and, therefore, there is no question of challenging that order under Section 105 of the Civil Procedure Code in an appeal against the decree passed by the trial Court. In support of the contention, counsel referred to the rulings which have already been referred to in this judgment holding that a suit instituted by the presentation of a plaint in pursuance to an order passed under Order 7, Rule 10 of the Civil Procedure Code is not a continuation of the suit as instituted in the Court which had no jurisdiction to entertain it. The rulings of this Court in Satyadhan Ghosal v. Smt. Deorajin Debi, (1960) 3 SCR 590 = (AIR 1960 SC 941 ) and Arjun Singh v. Mohindra Kumar, (1964) 5 SCR 946 = (AIR 1964 SC 993 ) were also referred to by Counsel to show that the order passed by the Panipat Court returning the plaint for presentation to the proper Court was a final order and operated as res judicata precluding the appellant from challenging its correctness in this appeal. We do not think it necessary to decide the question whether the order passed by the Panipat Court returning the plaint for presentation in the proper Court would operate as res judicata and preclude the appellant from contending in this appeal that the Karnal Court had jurisdiction to entertain the suit, for the reason that the appellant never raised contention before the trial Court that Karnal Court was the proper Court for instituting the suit on the ground that Mohri Railway Station was within its jurisdiction. On the other hand, by invoking Section 14 of the Act, he impliedly asserted that the Karnal Court had no jurisdiction to entertain the plaint because that section proceeds on the basis that the Court in which the proceeding was pending was unable to entertain the proceeding from defect of jurisdiction or cause of a like nature. To put it differently, the appellant had no case either in the trial Court, or in the High Court in the appeal from the decree, that Karnal Court was the proper Court for filing the suit. No doubt, he invoked the provision of Section 4 of the Act and sought to bring the case within its purview both in the trial Court and in the High Court, but that was on the basis that even if the Karnal Court had no jurisdiction to entertain the plaint, he was entitled to the benefit of Section 4. In these circumstances, we do not think that the appellant should be permitted to urge before this Court that the Karnal Court had jurisdiction to entertain the suit for the reason the Mohri Railway Station was within its jurisdiction and show that the suit as filed on March 2, 1959, was filed in the proper Court for the purpose of the Section 4 of the Act. 10. As the suit was barred by limitation, we do not think it necessary to consider the question whether the appellant is entitled to get any further amount by way of damages. | 0[ds]We do not think it necessary to decide the question whether the order passed by the Panipat Court returning the plaint for presentation in the proper Court would operate as res judicata and preclude the appellant from contending in this appeal that the Karnal Court had jurisdiction to entertain the suit, for the reason that the appellant never raised contention before the trial Court that Karnal Court was the proper Court for instituting the suit on the ground that Mohri Railway Station was within its jurisdiction. On the other hand, by invoking Section 14 of the Act, he impliedly asserted that the Karnal Court had no jurisdiction to entertain the plaint because that section proceeds on the basis that the Court in which the proceeding was pending was unable to entertain the proceeding from defect of jurisdiction or cause of a like nature. To put it differently, the appellant had no case either in the trial Court, or in the High Court in the appeal from the decree, that Karnal Court was the proper Court for filing the suit. No doubt, he invoked the provision of Section 4 of the Act and sought to bring the case within its purview both in the trial Court and in the High Court, but that was on the basis that even if the Karnal Court had no jurisdiction to entertain the plaint, he was entitled to the benefit of Section 4. In these circumstances, we do not think that the appellant should be permitted to urge before this Court that the Karnal Court had jurisdiction to entertain the suit for the reason the Mohri Railway Station was within its jurisdiction and show that the suit as filed on March 2, 1959, was filed in the proper Court for the purpose of the Section 4 of the Act10. As the suit was barred by limitation, we do not think it necessary to consider the question whether the appellant is entitled to get any further amount by way of damages. | 0 | 2,615 | 358 | ### Instruction:
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to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words the suit instituted in the trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court (see the decisions in Hirachand Succaram Gandhy v. G. I. P. Rly. Co., AIR 1928 Bom 421 , Bimla Prasad Mukerji v. Lal Moni Devi, AIR 1926 Cal 355, and Ram Kishun v. Ashirbad, ILR 29 Pat 699 = (AIR 1950 Pat 478 ). Therefore, the presentation of the plaint in the Karnal Court on March 2, 1959, cannot be deemed to be a presentation of it on that day in the trial Court. 9. Counsel for the appellant contended that the Karnal Court had jurisdiction to entertain the plaint presented to it on March 2, 1959, and, therefore, that was the proper Court for the purpose of Section 4 of the Act and that the suit was filed within time. He said that although the order passed by the Panipat Court on October 28, 1959, holding that it had no jurisdiction to entertain the plaint and returning it for presentation to the proper Court, was not appealed from, the appellant is not precluded from challenging the finding in the order that Mohri Railway Station is not within the jurisdiction of the Karnal Court. On the other hand, counsel for the respondent contended that since an order passed under Order 7, Rule 10 of the Civil Procedure Code, returning a plaint for presentation in the proper Court, was appealable under Order 43 Rule 1 (a) the appellant is precluded from challenging the correctness of the finding of the Court that Mohri Railway Station was not within its jurisdiction as no appeal was preferred from that Order by the appellant. Counsel said that as that order has become final, it would constitute res judicata and the appellant cannot challenge its correctness in an appeal from the decree. Counsel further said that Section 105 of the Civil Procedure Code which enables a party to challenge the correctness of an interlocutory order whether appealable or non-appelable when an appeal is preferred from the decree in the case has no application for the reason that the order passed by the Panipat Court cannot be deemed to be an order passed in the suit in which the decree was passed by the trial Court, but a final order which terminated the proceedings in the Panipat Court. To put it in other words, the argument was that since the suit in the trial Court was not a continuation of the suit which was filed in the Karnal Court, the order returning the plaint cannot be deemed to be an order passed in the suit as instituted in the trial Court and, therefore, there is no question of challenging that order under Section 105 of the Civil Procedure Code in an appeal against the decree passed by the trial Court. In support of the contention, counsel referred to the rulings which have already been referred to in this judgment holding that a suit instituted by the presentation of a plaint in pursuance to an order passed under Order 7, Rule 10 of the Civil Procedure Code is not a continuation of the suit as instituted in the Court which had no jurisdiction to entertain it. The rulings of this Court in Satyadhan Ghosal v. Smt. Deorajin Debi, (1960) 3 SCR 590 = (AIR 1960 SC 941 ) and Arjun Singh v. Mohindra Kumar, (1964) 5 SCR 946 = (AIR 1964 SC 993 ) were also referred to by Counsel to show that the order passed by the Panipat Court returning the plaint for presentation to the proper Court was a final order and operated as res judicata precluding the appellant from challenging its correctness in this appeal. We do not think it necessary to decide the question whether the order passed by the Panipat Court returning the plaint for presentation in the proper Court would operate as res judicata and preclude the appellant from contending in this appeal that the Karnal Court had jurisdiction to entertain the suit, for the reason that the appellant never raised contention before the trial Court that Karnal Court was the proper Court for instituting the suit on the ground that Mohri Railway Station was within its jurisdiction. On the other hand, by invoking Section 14 of the Act, he impliedly asserted that the Karnal Court had no jurisdiction to entertain the plaint because that section proceeds on the basis that the Court in which the proceeding was pending was unable to entertain the proceeding from defect of jurisdiction or cause of a like nature. To put it differently, the appellant had no case either in the trial Court, or in the High Court in the appeal from the decree, that Karnal Court was the proper Court for filing the suit. No doubt, he invoked the provision of Section 4 of the Act and sought to bring the case within its purview both in the trial Court and in the High Court, but that was on the basis that even if the Karnal Court had no jurisdiction to entertain the plaint, he was entitled to the benefit of Section 4. In these circumstances, we do not think that the appellant should be permitted to urge before this Court that the Karnal Court had jurisdiction to entertain the suit for the reason the Mohri Railway Station was within its jurisdiction and show that the suit as filed on March 2, 1959, was filed in the proper Court for the purpose of the Section 4 of the Act. 10. As the suit was barred by limitation, we do not think it necessary to consider the question whether the appellant is entitled to get any further amount by way of damages.
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We do not think it necessary to decide the question whether the order passed by the Panipat Court returning the plaint for presentation in the proper Court would operate as res judicata and preclude the appellant from contending in this appeal that the Karnal Court had jurisdiction to entertain the suit, for the reason that the appellant never raised contention before the trial Court that Karnal Court was the proper Court for instituting the suit on the ground that Mohri Railway Station was within its jurisdiction. On the other hand, by invoking Section 14 of the Act, he impliedly asserted that the Karnal Court had no jurisdiction to entertain the plaint because that section proceeds on the basis that the Court in which the proceeding was pending was unable to entertain the proceeding from defect of jurisdiction or cause of a like nature. To put it differently, the appellant had no case either in the trial Court, or in the High Court in the appeal from the decree, that Karnal Court was the proper Court for filing the suit. No doubt, he invoked the provision of Section 4 of the Act and sought to bring the case within its purview both in the trial Court and in the High Court, but that was on the basis that even if the Karnal Court had no jurisdiction to entertain the plaint, he was entitled to the benefit of Section 4. In these circumstances, we do not think that the appellant should be permitted to urge before this Court that the Karnal Court had jurisdiction to entertain the suit for the reason the Mohri Railway Station was within its jurisdiction and show that the suit as filed on March 2, 1959, was filed in the proper Court for the purpose of the Section 4 of the Act10. As the suit was barred by limitation, we do not think it necessary to consider the question whether the appellant is entitled to get any further amount by way of damages.
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Mahalaxmi Motors Ltd Vs. Mandal Revenue Officer & Others | Jublee Honda Motors. The land encroached by the respondent is surveyed by the Mandal Revenue Officer through mandal Surveyor and found that the respondent not only encroached 6946 sq. mtrs. (Amended as per orders passed in I. A. No. 94 of 2003, dated 13. 06. 2003) of government land in Sy. No. 82 of Bowenpally, but also encroached to an extent of 842 sq. mtrs. (Amended as per orders passed in LA. No. 94 of 2003, dated 13. 06. 2003)Government lands in Sy. No. 157/1 of Thokatta Village as shown in the sketch. The respondent illegally encroached the application scheduled property and construed sheds and running Mechanical workshop for vehicles. The company constructed workshop and compound wall of an extent of 6946 Sq. Mts. (Amended as per orders passed in LA. No. 94 of 2003, dated 13. 06. 2003) in sy. No. 82/p of Bowenpally and an extent of 842 Sq. Mtrs. (Amended as per orders passed in I. A. No. 94 of 2003, dated 13. 06. 2003) in Sy. No. 157/1p of Thokatta Village. The application schedule land is valuable land abutting Highway and it is required for public purpose. The cause of action arose when the Mandal Revenue Officer has issued notice on 27. 4. 87 to the Respondent under Andhra Pradesh Land Encroachment Act and noticed that the Respondent illegally encroached the Government land. It is submitted that the application scheduled land situated abutting to the hashamathpet Road which is a link road between two National Highways running from Hyderabad to Karimnagar and Nizamabad, and it is very valuable property and is required for public purpose. The market value of the land is Rs. 5000/- per Sq. Mts. The Respondent wrongfully using the Government land for Commercial purpose from 1985 and the Respondent is liable to pay a sum of Rs. 20/- Sq. Mts. per month from 1985 till the date of disposal of the LGC as means profits/compensation to the Government. " ( 42 ) Thus, not only the history of litigation but also area of encroachment was stated. A sketch map showing the same was annexed thereto. The fact that the appellant had made constructions illegally and had been running a workshop was specifically pleaded. One of the reliefs prayed for therein, inter alia, was to declare that the appellant was a land grabber. It is, therefore, not a case where it can be said that the respondent failed to plead the requisite ingredients of the definition of the term land grabbing". ( 43 ) We have noticed hereinbefore the findings of the learned Special Court. The special Court took note of the aforementioned contentions of the parties hereto and arrived at a definite finding, having regard to the history of the litigation between the parties, that the appellant was a land grabber. ( 44 ) The application filed by the appellant before the State Government for reguiarization of the land although may not be determinative of the issue as to whether it is a land grabber or not could be taken into consideration for a limited purpose, namely, admission or acknowledgment on its part in regard to the title of the State. It was possible for the appellant to file an application for regularization of land without prejudice to its rights and contentions in the pending proceedings, but having regard to the decisions rendered by the Andhra Pradesh high Court in two writ petitions, it would be fair to presume that the appellant filed the said application knowing fully well as to where it stood. Once it had taken a specified stand knowing fully well that it had no right, title and interest in or over the land in question, it cannot in law turn round and contend that the same was not binding on it. Doctrine of estoppel in a situation of this nature, in our opinion, would squarely apply. An abstract belief on the part of the appellant that its vendor had a marketable title and it was getting a good title to the land is not decisive. Whether any action was taken by the authorities of the State in regard to the possession of Ramender Reddy or the appellant, in our opinion, is wholly irrelevant inasmuch Ramender Reddy and consequently the appellant had no title over the property nor acquired any title by prescription. Law does not contemplate any vacuum in the title. Either the State had the title or the appellant and its predecessor. ( 45 ) Submission of Mr. Dewan that it was obligatory on the part of the First Respondent to make averments that the appellant illegally, forcibly, unscrupulously or with criminal intention of grabbing the Government land entered upon the government land, in our opinion, in the fact-situation obtaining herein, was not necessary. Pleadings of the parties, it is now well-settled are not to be construed in a pedautic manner [see Des Raj and Ors. v. Bhagat Ram (Dead) by L. Rs. and ors. [2007 (3) SCALE 371 ] ( 46 ) An averment that the appellant had been in unlawful possession itself is sufficient to invoke the provisions of the said Act in view of the decision of this Court in konda Lakshmana Bapuji (supra ). Keeping in view the fact that the appellant or the ramender Reddy had no title and consequently he could not acquire any title, all other contentions raised on its behalf, in our opinion, pales into insignificance. The fact of the matter squarely covers the ingredients of Section 2 (e) of the act as interpreted by this Court in Konda Lakshmana Bapuji (supra ). ( 47 ) Submission of the learned counsel that even an order dated 03. 08. 2007 is not a speaking order cannot be considered in this application. However, from a perusal of the said order, it is evident that therein all relevant circumstances have been taken into consideration. Recommendations made by the Collector or the Commissioner for regularization of the land are not binding on the State. | 0[ds]( 30 ) We are bound by the decision of the larger Bench in this case. The Special court exercises a jurisdiction of the Civil Court, provisions of the Code of Civil procedure being applicable. If it is a Civil Court, all questions relating to title and possession can be gone into. The proceeding can be initiated in terms of Section 4 of the said Act against a person who continues to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, local authority, religious or charitable institution or endowment including a wakf, or any private person. If and when a proceeding is initiated under the said Act, the proceedee not only can raise a jurisdictional questions but can also raise questions relating to his title and possession. It is, therefore, difficult to comprehend as to how the Special court would be debarred from determining the questions raised by the parties thereto. The question as to whether the land grabber had grabbed the land which is a Government land or not ordinarily is required to be determined as on the date of filing of the application. Pendency of an application for regularization of the land, therefore, in our opinion, would not stand in the way of the State to initiate a proceeding under the Act. It is one thing to say that the question in regard to regularization of a portion of the land in question was pending before the Government in terms of the directions issued by the learned Single Judge of the Andhra Pradesh high Court, but it is another thing to say that the Special Court had no jurisdiction to continue the proceeding, which is otherwise validly initiated only because pendency of such an application. If and when the prayer of the land grabber for regularization of the land is allowed, he would become entitled thereto. We may, however, hasten to add that we are assuming that the State had the requisite jurisdiction to direct such31 ) Lawful entitlement on the part of a party to possess the land being the determinative factor, it is axiomatic that so long as the land grabber would not be able to show his legal entitlement to hold the land, the jurisdiction of the Special Court cannot be held to be ousted.(37 ) We would like to add that the persons purported belief that he is legally entitled to hold the land and his possession is not otherwise illegal must also be judged not only from the point of time when he entered into the possession or when he had acquired the purported title but also from the point of view as to whether by reason of determination of such a question by a competent court of law, he has been found to have no title and consequently continuance of his possession becomes illegal. If the proceedee against whom a proceeding has been initiated under the provisions of the said Act is entitled to raise the question of adverse possession, which being based on knowledge of a lawful title and declaration of the hostile title on the part of the person in possession, there does not appear to be any reason as to why knowledge of defect in his title and consequently his possession becoming unlawful to his own knowledge would not come within the purview of the term land grabbing as contained in Section 2 (e) of the Act. The provisions of the Act must be construed so as to enable the tribunal to give effect thereto. It cannot be construed in a pedantic manner which if taken to its logical corollary would make the provisions wholly unworkable. Only because a person has entered into possession of a land on the basis of a purported registered sale deed, the same by itself, in our considered opinion, would not be sufficient to come to the conclusion that he had not entered over the land unauthorisedly, unfairly, or greedily.(41 ) So far as the pleadings in the application under Section 8 of the Act is concerned, suffice it to say that the same was filed in a prescribed form. There does not exist any column where the requisite pleadings by way of fulfilling the second part of the ingredients of land grabbing could be pleaded. With the said application, a concise statement was annexed. The said concise statement, therefore, became a part of the application. It has categorically been stated therein that the appellant without having any right or title illegally encroached upon the Government45 ) Submission of Mr. Dewan that it was obligatory on the part of the First Respondent to make averments that the appellant illegally, forcibly, unscrupulously or with criminal intention of grabbing the Government land entered upon the government land, in our opinion, in theobtaining herein, was not necessary. Pleadings of the parties, it is noware not to be construed in a pedautic46 ) An averment that the appellant had been in unlawful possession itself is sufficient to invoke the provisions of the said Act in view of the decision of this Court in konda Lakshmana Bapuji (supra ). Keeping in view the fact that the appellant or the ramender Reddy had no title and consequently he could not acquire any title, all other contentions raised on its behalf, in our opinion, pales into insignificance. The fact of the matter squarely covers the ingredients of Section 2 (e) of the act as interpreted by this Court in Konda Lakshmana Bapuji (supra47 ) Submission of the learned counsel that even an order dated 03. 08. 2007 is not a speaking order cannot be considered in this application. However, from a perusal of the said order, it is evident that therein all relevant circumstances have been taken into consideration. Recommendations made by the Collector or the Commissioner for regularization of the land are not binding on the State. | 0 | 9,986 | 1,073 | ### 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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Jublee Honda Motors. The land encroached by the respondent is surveyed by the Mandal Revenue Officer through mandal Surveyor and found that the respondent not only encroached 6946 sq. mtrs. (Amended as per orders passed in I. A. No. 94 of 2003, dated 13. 06. 2003) of government land in Sy. No. 82 of Bowenpally, but also encroached to an extent of 842 sq. mtrs. (Amended as per orders passed in LA. No. 94 of 2003, dated 13. 06. 2003)Government lands in Sy. No. 157/1 of Thokatta Village as shown in the sketch. The respondent illegally encroached the application scheduled property and construed sheds and running Mechanical workshop for vehicles. The company constructed workshop and compound wall of an extent of 6946 Sq. Mts. (Amended as per orders passed in LA. No. 94 of 2003, dated 13. 06. 2003) in sy. No. 82/p of Bowenpally and an extent of 842 Sq. Mtrs. (Amended as per orders passed in I. A. No. 94 of 2003, dated 13. 06. 2003) in Sy. No. 157/1p of Thokatta Village. The application schedule land is valuable land abutting Highway and it is required for public purpose. The cause of action arose when the Mandal Revenue Officer has issued notice on 27. 4. 87 to the Respondent under Andhra Pradesh Land Encroachment Act and noticed that the Respondent illegally encroached the Government land. It is submitted that the application scheduled land situated abutting to the hashamathpet Road which is a link road between two National Highways running from Hyderabad to Karimnagar and Nizamabad, and it is very valuable property and is required for public purpose. The market value of the land is Rs. 5000/- per Sq. Mts. The Respondent wrongfully using the Government land for Commercial purpose from 1985 and the Respondent is liable to pay a sum of Rs. 20/- Sq. Mts. per month from 1985 till the date of disposal of the LGC as means profits/compensation to the Government. " ( 42 ) Thus, not only the history of litigation but also area of encroachment was stated. A sketch map showing the same was annexed thereto. The fact that the appellant had made constructions illegally and had been running a workshop was specifically pleaded. One of the reliefs prayed for therein, inter alia, was to declare that the appellant was a land grabber. It is, therefore, not a case where it can be said that the respondent failed to plead the requisite ingredients of the definition of the term land grabbing". ( 43 ) We have noticed hereinbefore the findings of the learned Special Court. The special Court took note of the aforementioned contentions of the parties hereto and arrived at a definite finding, having regard to the history of the litigation between the parties, that the appellant was a land grabber. ( 44 ) The application filed by the appellant before the State Government for reguiarization of the land although may not be determinative of the issue as to whether it is a land grabber or not could be taken into consideration for a limited purpose, namely, admission or acknowledgment on its part in regard to the title of the State. It was possible for the appellant to file an application for regularization of land without prejudice to its rights and contentions in the pending proceedings, but having regard to the decisions rendered by the Andhra Pradesh high Court in two writ petitions, it would be fair to presume that the appellant filed the said application knowing fully well as to where it stood. Once it had taken a specified stand knowing fully well that it had no right, title and interest in or over the land in question, it cannot in law turn round and contend that the same was not binding on it. Doctrine of estoppel in a situation of this nature, in our opinion, would squarely apply. An abstract belief on the part of the appellant that its vendor had a marketable title and it was getting a good title to the land is not decisive. Whether any action was taken by the authorities of the State in regard to the possession of Ramender Reddy or the appellant, in our opinion, is wholly irrelevant inasmuch Ramender Reddy and consequently the appellant had no title over the property nor acquired any title by prescription. Law does not contemplate any vacuum in the title. Either the State had the title or the appellant and its predecessor. ( 45 ) Submission of Mr. Dewan that it was obligatory on the part of the First Respondent to make averments that the appellant illegally, forcibly, unscrupulously or with criminal intention of grabbing the Government land entered upon the government land, in our opinion, in the fact-situation obtaining herein, was not necessary. Pleadings of the parties, it is now well-settled are not to be construed in a pedautic manner [see Des Raj and Ors. v. Bhagat Ram (Dead) by L. Rs. and ors. [2007 (3) SCALE 371 ] ( 46 ) An averment that the appellant had been in unlawful possession itself is sufficient to invoke the provisions of the said Act in view of the decision of this Court in konda Lakshmana Bapuji (supra ). Keeping in view the fact that the appellant or the ramender Reddy had no title and consequently he could not acquire any title, all other contentions raised on its behalf, in our opinion, pales into insignificance. The fact of the matter squarely covers the ingredients of Section 2 (e) of the act as interpreted by this Court in Konda Lakshmana Bapuji (supra ). ( 47 ) Submission of the learned counsel that even an order dated 03. 08. 2007 is not a speaking order cannot be considered in this application. However, from a perusal of the said order, it is evident that therein all relevant circumstances have been taken into consideration. Recommendations made by the Collector or the Commissioner for regularization of the land are not binding on the State.
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( 30 ) We are bound by the decision of the larger Bench in this case. The Special court exercises a jurisdiction of the Civil Court, provisions of the Code of Civil procedure being applicable. If it is a Civil Court, all questions relating to title and possession can be gone into. The proceeding can be initiated in terms of Section 4 of the said Act against a person who continues to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, local authority, religious or charitable institution or endowment including a wakf, or any private person. If and when a proceeding is initiated under the said Act, the proceedee not only can raise a jurisdictional questions but can also raise questions relating to his title and possession. It is, therefore, difficult to comprehend as to how the Special court would be debarred from determining the questions raised by the parties thereto. The question as to whether the land grabber had grabbed the land which is a Government land or not ordinarily is required to be determined as on the date of filing of the application. Pendency of an application for regularization of the land, therefore, in our opinion, would not stand in the way of the State to initiate a proceeding under the Act. It is one thing to say that the question in regard to regularization of a portion of the land in question was pending before the Government in terms of the directions issued by the learned Single Judge of the Andhra Pradesh high Court, but it is another thing to say that the Special Court had no jurisdiction to continue the proceeding, which is otherwise validly initiated only because pendency of such an application. If and when the prayer of the land grabber for regularization of the land is allowed, he would become entitled thereto. We may, however, hasten to add that we are assuming that the State had the requisite jurisdiction to direct such31 ) Lawful entitlement on the part of a party to possess the land being the determinative factor, it is axiomatic that so long as the land grabber would not be able to show his legal entitlement to hold the land, the jurisdiction of the Special Court cannot be held to be ousted.(37 ) We would like to add that the persons purported belief that he is legally entitled to hold the land and his possession is not otherwise illegal must also be judged not only from the point of time when he entered into the possession or when he had acquired the purported title but also from the point of view as to whether by reason of determination of such a question by a competent court of law, he has been found to have no title and consequently continuance of his possession becomes illegal. If the proceedee against whom a proceeding has been initiated under the provisions of the said Act is entitled to raise the question of adverse possession, which being based on knowledge of a lawful title and declaration of the hostile title on the part of the person in possession, there does not appear to be any reason as to why knowledge of defect in his title and consequently his possession becoming unlawful to his own knowledge would not come within the purview of the term land grabbing as contained in Section 2 (e) of the Act. The provisions of the Act must be construed so as to enable the tribunal to give effect thereto. It cannot be construed in a pedantic manner which if taken to its logical corollary would make the provisions wholly unworkable. Only because a person has entered into possession of a land on the basis of a purported registered sale deed, the same by itself, in our considered opinion, would not be sufficient to come to the conclusion that he had not entered over the land unauthorisedly, unfairly, or greedily.(41 ) So far as the pleadings in the application under Section 8 of the Act is concerned, suffice it to say that the same was filed in a prescribed form. There does not exist any column where the requisite pleadings by way of fulfilling the second part of the ingredients of land grabbing could be pleaded. With the said application, a concise statement was annexed. The said concise statement, therefore, became a part of the application. It has categorically been stated therein that the appellant without having any right or title illegally encroached upon the Government45 ) Submission of Mr. Dewan that it was obligatory on the part of the First Respondent to make averments that the appellant illegally, forcibly, unscrupulously or with criminal intention of grabbing the Government land entered upon the government land, in our opinion, in theobtaining herein, was not necessary. Pleadings of the parties, it is noware not to be construed in a pedautic46 ) An averment that the appellant had been in unlawful possession itself is sufficient to invoke the provisions of the said Act in view of the decision of this Court in konda Lakshmana Bapuji (supra ). Keeping in view the fact that the appellant or the ramender Reddy had no title and consequently he could not acquire any title, all other contentions raised on its behalf, in our opinion, pales into insignificance. The fact of the matter squarely covers the ingredients of Section 2 (e) of the act as interpreted by this Court in Konda Lakshmana Bapuji (supra47 ) Submission of the learned counsel that even an order dated 03. 08. 2007 is not a speaking order cannot be considered in this application. However, from a perusal of the said order, it is evident that therein all relevant circumstances have been taken into consideration. Recommendations made by the Collector or the Commissioner for regularization of the land are not binding on the State.
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Natha Singh & Ors Vs. The Financial Commissioner, Taxation, Punjab & Ors | to be produced.4. With regard to the first contention advanced on behalf of the appellants, it is sufficient to observe that it has been time and again observed by this Court that in dealing with a petition under Article 226 of the Constitution, the High Court cannot exercise the jurisdiction of an appellate court and cannot re-examine or disturb the findings of fact arrived at by an inferior court or a tribunal in the absence of any err or of law.So far as the contention of the learned counsel for the appellants based on the revenue record is concerned, it may be remarked that it has been concurrently found by the Collector and the Commissioner who examined the original khasra girdawaries that they had been tampered with by the revenue staff in collusion with the appellants. In the circumstances, it would not be safe to place any reliance on them. The reliance sought to be placed on Roznamcha Waqaiti is also an after thought. No authenticated copy of the Roznamcha Waqaiti with reference to which we are invited to verify the entries in the khasra girdawaries has been included in the record. It is also significant that no reliance either before the Collector or before the Commissioner or even before the Financial Commissioner seems to have been placed upon the Roznamcha Waqaiti. It is also to be noted that even in the application for leave to adduce additional evidence, no mention has been made of any entry in Roznamcha Waqaiti. Even if the entries in khasra girdawaries are treated as genuine, they can be of little assistance to the appellants as they do not at all, as observed by the Collector, appear to show that any rent was being paid by the appellants Nos. 2 and 3 to appellant No. 1. In the absence of payment of rent or in the absence of material to show that there was a contract between appellant No. 1 and appellants Nos. 2 and 3 absolving the latter of the liability to pay rent, it is difficult to uphold the claim of appellants Nos. 2 and 3 that they were tenants of appellant No. 1.5. So far as the claim regarding banjar land is concerned, it would suffice to say that the Collecto r who examined the revenue record found that there was no land which fell within that category. It cannot be disputed that a land-owner who wishes to claim the benefit of the exclusion of banjar qadim or banjar jadid land from the purview of land has to prove that it was not at the relevant date being put to any agricultural purpose or a purpose subservient to agriculture or used for pasture. No such proof seems to have been adduced in the instant case. It is also important to note that even before the Commissioner, the appellant did not plead that any banjar land was not left out of consideration while assessing the Surplus Area. All that was urged before the Commissioner was that the land comprised in khasra No. 864 of village Malout had not been left out of account although it was banjar. The Commissioner repelled this plea as he found from the examination of the record that the area comprised in the said khasra number was Chair Pumkin Sarak which had not been taken into account while assessing the Surplus Area of appellant No. 1.The contention raised on behalf of the appellants that they were not allowed an opportunity of establishing their claim cannot also be countenanced. There is nothing on the record to indicate that the appellants were denied opportunity to prove their case. The Financial Commissioner has categorically found that appellants Nos. 1 and 2 had full opportunity to place on record their evidence to establish that they were cultivating the land of their father as his tenants and that they did not avail of that opportunity by placing any material on the record to show that, or that there was a private partition as sought to be urged by them before him.6. In view of the foregoing reasons we are satisfied that the orders passed by the revenue authorities did not suffer from any error of law so as to warrant interference in writ proceedings and the High Court was justified in dismissing in limine that writ petition preferred by the appellants.7. So far as the application of the appellants for additional evidence is concerned, it cannot be allowed in view of the well settled principles of law that the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 of the Code of Civil Procedure. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced. (See Arjun Singh Alias Puran v. Kartar Singh and Ors.(1). In the instant case, we have not been able to experience any difficulty in rendering the judgment on the material already before us. Instead we feel that the prayer for adducing additional evidence has been made merely to fill up gaps on the basis of some revenue record which has been found by the Collector and the Commissioner to the spurious.8. We also do not find any other substantial reason to accede to the request of the appellants to allow them to adduce additional evidence. There is no inherent lacuna or obscurity which we require to be filled up or removed to be able to pronounce judgment. The application of the appellants is accordingly rejected.9. | 0[ds]In view of the foregoing reasons we are satisfied that the orders passed by the revenue authorities did not suffer from any error of law so as to warrant interference in writ proceedings and the High Court was justified in dismissing in limine that writ petition preferred by thefar as the application of the appellants for additional evidence is concerned, it cannot be allowed in view of the well settled principles of law that the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 of theCode of Civil Procedure. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. Thetrue test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced.(See Arjun Singh Alias Puran v. Kartar Singh and Ors.(1). In the instant case, we have not been able to experience any difficulty in rendering the judgment on the material already before us. Instead we feel that the prayer for adducing additional evidence has been made merely to fill up gaps on the basis of some revenue record which has been found by the Collector and the Commissioner to thealso do not find any other substantial reason to accede to the request of the appellants to allow them to adduce additional evidence. There is no inherent lacuna or obscurity which we require to be filled up or removed to be able to pronounce judgment. The application of the appellants is accordingly rejected. | 0 | 1,987 | 337 | ### 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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to be produced.4. With regard to the first contention advanced on behalf of the appellants, it is sufficient to observe that it has been time and again observed by this Court that in dealing with a petition under Article 226 of the Constitution, the High Court cannot exercise the jurisdiction of an appellate court and cannot re-examine or disturb the findings of fact arrived at by an inferior court or a tribunal in the absence of any err or of law.So far as the contention of the learned counsel for the appellants based on the revenue record is concerned, it may be remarked that it has been concurrently found by the Collector and the Commissioner who examined the original khasra girdawaries that they had been tampered with by the revenue staff in collusion with the appellants. In the circumstances, it would not be safe to place any reliance on them. The reliance sought to be placed on Roznamcha Waqaiti is also an after thought. No authenticated copy of the Roznamcha Waqaiti with reference to which we are invited to verify the entries in the khasra girdawaries has been included in the record. It is also significant that no reliance either before the Collector or before the Commissioner or even before the Financial Commissioner seems to have been placed upon the Roznamcha Waqaiti. It is also to be noted that even in the application for leave to adduce additional evidence, no mention has been made of any entry in Roznamcha Waqaiti. Even if the entries in khasra girdawaries are treated as genuine, they can be of little assistance to the appellants as they do not at all, as observed by the Collector, appear to show that any rent was being paid by the appellants Nos. 2 and 3 to appellant No. 1. In the absence of payment of rent or in the absence of material to show that there was a contract between appellant No. 1 and appellants Nos. 2 and 3 absolving the latter of the liability to pay rent, it is difficult to uphold the claim of appellants Nos. 2 and 3 that they were tenants of appellant No. 1.5. So far as the claim regarding banjar land is concerned, it would suffice to say that the Collecto r who examined the revenue record found that there was no land which fell within that category. It cannot be disputed that a land-owner who wishes to claim the benefit of the exclusion of banjar qadim or banjar jadid land from the purview of land has to prove that it was not at the relevant date being put to any agricultural purpose or a purpose subservient to agriculture or used for pasture. No such proof seems to have been adduced in the instant case. It is also important to note that even before the Commissioner, the appellant did not plead that any banjar land was not left out of consideration while assessing the Surplus Area. All that was urged before the Commissioner was that the land comprised in khasra No. 864 of village Malout had not been left out of account although it was banjar. The Commissioner repelled this plea as he found from the examination of the record that the area comprised in the said khasra number was Chair Pumkin Sarak which had not been taken into account while assessing the Surplus Area of appellant No. 1.The contention raised on behalf of the appellants that they were not allowed an opportunity of establishing their claim cannot also be countenanced. There is nothing on the record to indicate that the appellants were denied opportunity to prove their case. The Financial Commissioner has categorically found that appellants Nos. 1 and 2 had full opportunity to place on record their evidence to establish that they were cultivating the land of their father as his tenants and that they did not avail of that opportunity by placing any material on the record to show that, or that there was a private partition as sought to be urged by them before him.6. In view of the foregoing reasons we are satisfied that the orders passed by the revenue authorities did not suffer from any error of law so as to warrant interference in writ proceedings and the High Court was justified in dismissing in limine that writ petition preferred by the appellants.7. So far as the application of the appellants for additional evidence is concerned, it cannot be allowed in view of the well settled principles of law that the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 of the Code of Civil Procedure. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced. (See Arjun Singh Alias Puran v. Kartar Singh and Ors.(1). In the instant case, we have not been able to experience any difficulty in rendering the judgment on the material already before us. Instead we feel that the prayer for adducing additional evidence has been made merely to fill up gaps on the basis of some revenue record which has been found by the Collector and the Commissioner to the spurious.8. We also do not find any other substantial reason to accede to the request of the appellants to allow them to adduce additional evidence. There is no inherent lacuna or obscurity which we require to be filled up or removed to be able to pronounce judgment. The application of the appellants is accordingly rejected.9.
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In view of the foregoing reasons we are satisfied that the orders passed by the revenue authorities did not suffer from any error of law so as to warrant interference in writ proceedings and the High Court was justified in dismissing in limine that writ petition preferred by thefar as the application of the appellants for additional evidence is concerned, it cannot be allowed in view of the well settled principles of law that the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 of theCode of Civil Procedure. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. Thetrue test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced.(See Arjun Singh Alias Puran v. Kartar Singh and Ors.(1). In the instant case, we have not been able to experience any difficulty in rendering the judgment on the material already before us. Instead we feel that the prayer for adducing additional evidence has been made merely to fill up gaps on the basis of some revenue record which has been found by the Collector and the Commissioner to thealso do not find any other substantial reason to accede to the request of the appellants to allow them to adduce additional evidence. There is no inherent lacuna or obscurity which we require to be filled up or removed to be able to pronounce judgment. The application of the appellants is accordingly rejected.
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A. V. Fernandez Vs. The State Of Kerala | 20 (2) at all to these cases. The amount for which the oil is sold inter-State trade or commerce would not be lawfully included in the turnover of the dealer and if the amount for which such oil is sold cannot thus be included in this turnover no occasion would arise for the deduction under R.7 (1) (k) of the value of the coconut and/or copra or groundnut and/or kernel purchased and converted by the dealer into such oil and cake.38. A distinction was sought to be made between the inclusion of the value of such oil in the turnover of the dealer for the purpose of assessment and the levy of tax thereupon. It was urged that the inclusion of such oil in the turnover for the purpose of assessment was quite distinct from the liability for tax which was the only thing prohibited by S. 26 of the Act and therefore the value of such oil could be lawfully included in the turnover involving as a necessary consequence the deduction of the value of the copra purchased by the dealer and converted by him into such oil from such turnover, the resultant turnover being the net turnover for the purposes of assessment, the value of the oil sold in the course of inter-State trade or commerce being further deducted therefrom by reason of the operation of S.26 of the Act, thus making in effect a distinction between assessable turnover and the taxable turnover.39. Reliance was placed in support of this position on the observations of this Court in Chatturam Horilram Ltd. v. Commr. of Income tax, B. and O., 1955-2 S C R 290 at p. 297 : (AIR 1955 S C 619 at p.622) (F) :As has been pointed out by the Federal Court in Chatturam v. Commr. of I.T., Bihar, (1947) F C R 116 at p.126: (AIR 1947 F C 32 at p. 35) (G), (quoting from the judgment of Lord Dunedin in Whitney v. Commrs. of Inland Revenue, (1926) A C 37 (H), there are three stages in the imposition of a tax. There is the declaration of liability, that is the part of the statute which determines what person in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment, that ex-hypothesi, has already been fixed. But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay.40. The appellant, however, forgets that the three stages in the imposition of a tax which are laid down here predicate, in the first instance, a declaration of liability as the starting point. If there is a liability to tax, imposed under the terms of the taxing statute, then follow the provisions in regard to the assessment of such liability. If there is no liability to tax there cannot be any assessment either. Sales or purchases in respect of which there is no liability to tax imposed by the statute cannot at all be included in the calculation of turnover for the purpose of assessment and the exact sum which the dealer is liable to pay must be ascertained without any reference whatever to the same.41. There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The Legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed.42. If this distinction is borne in mind, it is clear that S.26 of the Act enacts a provision with regard to non-liability of these transactions to tax and these transactions were therefore taken out of the purview of the Act.43. We are therefore of opinion that the non-obstante provision contained in S. 26 of Act has the effect of taking these transactions out of the purview of the Act with the result that the dealer is not required nor is he entitled to include them in the calculations of his turnover liable to tax thereunder.44. This position is not at all affected by the provision with regard to registration and submissions of returns of the sales tax by the dealers under the Act. The legislature, in spite of its disability in the matter of the imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution, may for the purposes of the registration of a dealer and submission of the returns of sales tax include these transactions in the dealers turnover.45. Such inclusion, however, for the purposes aforesaid would not affect the non-liability of these transactions to levy or imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution and the corresponding provision enacted in the Act, as above.46. We are, therefore, of opinion that the conclusion reached by the High Court was correct; | 1[ds].It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the, substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter.We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities.our opinion, S.26 of the Act, in cases falling within the categories specified under Art.286 of the Constitution has the effect of setting at nought and of obliterating in regard thereto the provisions contained in the Act relating to the imposition of tax on the sale or purchase of such goods and in particular the provisions contained in the charging section and the provisions contained in R.20 (2) and other provisions which are incidental to the process of levying suchfar as sales falling within the categories specified in Art. 286 of the Constitution and the corresponding S. 26 of the Act are concerned, they are, as it were, taken out of the purview of the Act and no effect is to be given to those provisions which would otherwise have been applicable if S. 26 had not been added to the Act. If these provisions of the Act and the rules made thereunder do not apply to the sales falling within those categories, the value thereof cannot be included in the turnover of the dealer and no question would arise of the applicability of R. 7 (1) (k) and R. 20 (2) at all to theseamount for which the oil is sold inter-State trade or commerce would not be lawfully included in the turnover of the dealer and if the amount for which such oil is sold cannot thus be included in this turnover no occasion would arise for the deduction under R.7 (1) (k) of the value of the coconut and/or copra or groundnut and/or kernel purchased and converted by the dealer into such oil andor purchases in respect of which there is no liability to tax imposed by the statute cannot at all be included in the calculation of turnover for the purpose of assessment and the exact sum which the dealer is liable to pay must be ascertained without any reference whatever to the same.41. There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can bethe latter case, the sales or purchases are exempted from taxation altogether. The Legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied orthis distinction is borne in mind, it is clear that S.26 of the Act enacts a provision with regard to non-liability of these transactions to tax and these transactions were therefore taken out of the purview of the Act.43. We are therefore of opinion that the non-obstante provision contained in S. 26 of Act has the effect of taking these transactions out of the purview of the Act with the result that the dealer is not required nor is he entitled to include them in the calculations of his turnover liable to tax thereunder.44. This position is not at all affected by the provision with regard to registration and submissions of returns of the sales tax by the dealers under the Act. The legislature, in spite of its disability in the matter of the imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution, may for the purposes of the registration of a dealer and submission of the returns of sales tax include these transactions in the dealersinclusion, however, for the purposes aforesaid would not affect the non-liability of these transactions to levy or imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution and the corresponding provision enacted in the Act, as above.We are, therefore, of opinion that the conclusion reached by the High Court was correct; | 1 | 6,381 | 984 | ### Instruction:
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20 (2) at all to these cases. The amount for which the oil is sold inter-State trade or commerce would not be lawfully included in the turnover of the dealer and if the amount for which such oil is sold cannot thus be included in this turnover no occasion would arise for the deduction under R.7 (1) (k) of the value of the coconut and/or copra or groundnut and/or kernel purchased and converted by the dealer into such oil and cake.38. A distinction was sought to be made between the inclusion of the value of such oil in the turnover of the dealer for the purpose of assessment and the levy of tax thereupon. It was urged that the inclusion of such oil in the turnover for the purpose of assessment was quite distinct from the liability for tax which was the only thing prohibited by S. 26 of the Act and therefore the value of such oil could be lawfully included in the turnover involving as a necessary consequence the deduction of the value of the copra purchased by the dealer and converted by him into such oil from such turnover, the resultant turnover being the net turnover for the purposes of assessment, the value of the oil sold in the course of inter-State trade or commerce being further deducted therefrom by reason of the operation of S.26 of the Act, thus making in effect a distinction between assessable turnover and the taxable turnover.39. Reliance was placed in support of this position on the observations of this Court in Chatturam Horilram Ltd. v. Commr. of Income tax, B. and O., 1955-2 S C R 290 at p. 297 : (AIR 1955 S C 619 at p.622) (F) :As has been pointed out by the Federal Court in Chatturam v. Commr. of I.T., Bihar, (1947) F C R 116 at p.126: (AIR 1947 F C 32 at p. 35) (G), (quoting from the judgment of Lord Dunedin in Whitney v. Commrs. of Inland Revenue, (1926) A C 37 (H), there are three stages in the imposition of a tax. There is the declaration of liability, that is the part of the statute which determines what person in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment, that ex-hypothesi, has already been fixed. But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay.40. The appellant, however, forgets that the three stages in the imposition of a tax which are laid down here predicate, in the first instance, a declaration of liability as the starting point. If there is a liability to tax, imposed under the terms of the taxing statute, then follow the provisions in regard to the assessment of such liability. If there is no liability to tax there cannot be any assessment either. Sales or purchases in respect of which there is no liability to tax imposed by the statute cannot at all be included in the calculation of turnover for the purpose of assessment and the exact sum which the dealer is liable to pay must be ascertained without any reference whatever to the same.41. There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The Legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed.42. If this distinction is borne in mind, it is clear that S.26 of the Act enacts a provision with regard to non-liability of these transactions to tax and these transactions were therefore taken out of the purview of the Act.43. We are therefore of opinion that the non-obstante provision contained in S. 26 of Act has the effect of taking these transactions out of the purview of the Act with the result that the dealer is not required nor is he entitled to include them in the calculations of his turnover liable to tax thereunder.44. This position is not at all affected by the provision with regard to registration and submissions of returns of the sales tax by the dealers under the Act. The legislature, in spite of its disability in the matter of the imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution, may for the purposes of the registration of a dealer and submission of the returns of sales tax include these transactions in the dealers turnover.45. Such inclusion, however, for the purposes aforesaid would not affect the non-liability of these transactions to levy or imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution and the corresponding provision enacted in the Act, as above.46. We are, therefore, of opinion that the conclusion reached by the High Court was correct;
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.It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the, substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter.We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities.our opinion, S.26 of the Act, in cases falling within the categories specified under Art.286 of the Constitution has the effect of setting at nought and of obliterating in regard thereto the provisions contained in the Act relating to the imposition of tax on the sale or purchase of such goods and in particular the provisions contained in the charging section and the provisions contained in R.20 (2) and other provisions which are incidental to the process of levying suchfar as sales falling within the categories specified in Art. 286 of the Constitution and the corresponding S. 26 of the Act are concerned, they are, as it were, taken out of the purview of the Act and no effect is to be given to those provisions which would otherwise have been applicable if S. 26 had not been added to the Act. If these provisions of the Act and the rules made thereunder do not apply to the sales falling within those categories, the value thereof cannot be included in the turnover of the dealer and no question would arise of the applicability of R. 7 (1) (k) and R. 20 (2) at all to theseamount for which the oil is sold inter-State trade or commerce would not be lawfully included in the turnover of the dealer and if the amount for which such oil is sold cannot thus be included in this turnover no occasion would arise for the deduction under R.7 (1) (k) of the value of the coconut and/or copra or groundnut and/or kernel purchased and converted by the dealer into such oil andor purchases in respect of which there is no liability to tax imposed by the statute cannot at all be included in the calculation of turnover for the purpose of assessment and the exact sum which the dealer is liable to pay must be ascertained without any reference whatever to the same.41. There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can bethe latter case, the sales or purchases are exempted from taxation altogether. The Legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied orthis distinction is borne in mind, it is clear that S.26 of the Act enacts a provision with regard to non-liability of these transactions to tax and these transactions were therefore taken out of the purview of the Act.43. We are therefore of opinion that the non-obstante provision contained in S. 26 of Act has the effect of taking these transactions out of the purview of the Act with the result that the dealer is not required nor is he entitled to include them in the calculations of his turnover liable to tax thereunder.44. This position is not at all affected by the provision with regard to registration and submissions of returns of the sales tax by the dealers under the Act. The legislature, in spite of its disability in the matter of the imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution, may for the purposes of the registration of a dealer and submission of the returns of sales tax include these transactions in the dealersinclusion, however, for the purposes aforesaid would not affect the non-liability of these transactions to levy or imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution and the corresponding provision enacted in the Act, as above.We are, therefore, of opinion that the conclusion reached by the High Court was correct;
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Ratnam Chettiar & Ors Vs. S. M. Kuppuswami Chettiar & Ors | undoubtedly apply to this case. But this Court had taken care to point out in these very observations which are underlined by us that this rule did not apply to the minors who are undoubtedly permitted in law to reopen the partition once it is proved that the partition was unfair or unjust to them. In view of the concurrent finding of fact of the two courts below that the partition of moveable properties, excepting those with respect to the shares, was unfair and unjust, even according to the decision mentioned above the partition with respect to the moveable properties has to be reopened.17. Moreover in an earlier decision of this Court in Bishundeo Narain v. Seogeni Rai and Jagernath (1951 SCR 548, 556 : AIR 1951 SC 280 ) it was observed :It is well established that a minor can sue for partition and obtain a decree if his next friend can show that, that is for the minors benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of a joint family when one of the members is a minor. In the case of such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside.In our opinion the present case falls within the ratio laid down by the decision cited above.18. Apart from that there are numerous authorities which have consistently held that where a partition is unjust and unfair and detrimental to the interests of the minors the partition would be reopened irrespective of the question of bona fides. In Lal Bahadur Singh v. Sispal Singh (ILR 14 All 498 : 1892 AWN 61) it was observed that even though the ground of fraud and mistake failed, the partition which affected the interests of the minors could be reopened. Similarly in Chanvira Pa v. Da Va (ILR 19 BOM 593) a Division Bench of the Bombay High Court held that a partition will be binding on the minors only if it was just and legal, but if it was made and finalised there being no means of testing the validity of the assets the partition was not final. The same view was taken in Maruti v. Rama (ILR 21 Bom 333).19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge :(1) A partition effected between the members of the Hindu undivided family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.(2) When the partition is effected between the members of the Hindu undivided family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.(3) Where, however, a partition effected between the members of the Hindu undivided family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interest of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.(4) Where there is a partition of immovable and moveable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.The facts of the present case, in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above.20. In the instant case we find from a perusal of the two schedules A and B of Ext. B-3 that there has been ex facie a disparity of about Rs. 10, 000 to which must be added Rs. 27, 500 which we have discussed above. Thus the total disparity comes to Rs. 37, 500 and the share of the minor plaintiffs would be 2/5th which comes to Rs. 15, 000. This amount of Rs. 15, 000 should have been available to the minor plaintiffs as far back as 1940 when the partition was made and they have been deprived of that amount ever since. We find that in the peculiar facts and circumstances of the case as already stated it will not be in the interests of the minors nor conducive in the interests of justice to order the appointment of a Commissioner for reopening the entire partition when the shares of the minor plaintiffs are easily ascertainable in terms of money and can be quantified. In these circumstances we think the best course is to determine the money value of the share of the plaintiffs and to pass a decree for the same which will protect the minors from protracted litigation which might follow the passing of a preliminary decree. This was the approach made by the High Court but we do not agree with the amount quantified by it. If we add interest at the rate of 6% per annum as prayed for in the plaint on the amount of Rs. 15, 000, the interest calculated at this rate for 35 years from 1940 to 1975 would come to Rs. 31, 500. Thus the total amount payable to the plaintiffs comes to Rs. 46, 500. | 1[ds]It would appear from the findings arrived at by the two courts that defendant No. 1 was undoubtedly an honest man and defendant No. 5 the younger brother appears to be an idealist - a person to whom the value and prestige of the family was a consideration much above mundane monetary matters. Secondly, the partition between the two brothers was voluntarily made about 35 years ago and the father of the plaintiffs has most willingly and with good grace accepted the partition and the shares that were allotted to him. Thirdly, since a very long time had elapsed since the partition took place, it would be well nigh impossible for any court to determine the value of the assets, some of which might have disappeared, others may be shrouded in mystery, and for determining the rest the necessary data may not be available. It appears to us to be too late in the day in 1975 to appoint a Commissioner in order to go into a situation which existed in 1940 and then to pass a decree which may result in a fresh spate of litigation for another decade. It was possibly this consideration which weighed with the High Court in quantifying the amount of the share of the plaintiffs which they had suffered under the division of the assets. Finally the plaintiffs father defendant No. 5 was a shrewd businessman and after his elder brother had suffered from some illness, he was carrying on the business of the family a few years before the partition. Both the parties were assisted by an auditor Mr. K. Narayanaswami in effecting the partition by metes and bounds. In these circumstances, therefore, there could be no question of practising any fraud or undue influence as alleged by the plaintiffs and if the partition was unjust or unfair to the minors it was merely because defendant No. 5 made an error of judgment with respect to some properties. Lastly, we have not been able to find any material to justify the conclusion of the High Court that the difference in the allotment of the shares to the plaintiffs would be 2/5th of Rs. 17, 700.As regards the immovable properties we find ourselves in complete agreement with the arguments of the learned Counsel for the respondents that the partition of these properties was fair and just and there is no material on the record to show that the partition worked in any injustice or was detrimental in any way to the interests of thewould thus appear that the division of immovable properties is just, fair and equal. It is true that the properties were not actually valued according to the market rate and that a notional valuation had been given in the partition deed. But in view of the detailed examination by the two courts of the fact regarding capitalised value of the properties allotted to the two brothers it cannot be said that the partition of immovable properties was either unfair or unjust or in any way detrimental to the interests of the minors. After considering the evidence, the trial Court found as follows :It is thus found from the available evidence that there was no unfairness or inequality in the partition of the immovable properties effected under Exhibit B-1 and that no ground exists for reopening that partition.partition.11. It is a well-settled practice of this Court not to interfere with a concurrent finding of fact given by the two courts below in the absence of any extraordinary or special reasons. In the instant case we hold the finding of the High Court as well as of the trial Court is based on a full and complete consideration of the evidence both oral and documentary and an elaborate and meticulous discussion of all the surrounding circumstances. We, therefore do not feel inclined to interfere with this concurrent finding of fact which is hereby affirmed.12. We might state that the objection regarding the properties not having been properly valued falls to the ground when we find that instead of notional value mentioned in the partition deed which is Rs. 12, 547-13-0 for defendant No. 1 and Rs. 12, 000 for defendant No. 5, the capitalised value of the items allotted to the two brothers either on the basis of their purchase price or on the basis of the rent fetched by them is almost equal. The first contention regarding the partition of immovable properties raised by the learned Counsel for the appellants being unfair and unjust must therefore bewill appear from a plain examination of the two schedules that whereas defendant No. 1 admittedly got properties worth Rs. 1, 10, 274-2-6 defendant No. 5 got properties only worth Rs. 90, 142-4-0 there being a clear disparity of Rs. 10, 000 because the share of each of the two defendants would be Rs. 1, 00, 208. On the defendant No. 1 own documents, therefore, it is clear that a loss of Rs. 10, 000 was caused to defendant No. 5 in the year 1940 and the share of the plaintiffs in this loss would be 2/5th i.e. about Rs. 4, 000 which would swell into a large amount if we add interest for all these 35the Subordinate Judge, Coimbatore and the High Court have accepted the explanation given by DW 3 Narayanaswami although the explanation appears to us to be prima facie false and unconvincing. Even assuming that this entry was made due to some mistake and had to be scored out, we cannot believe that a person of the expert knowledge and status of DW 3 Narayanaswami Iyer the auditor would forget to make a corresponding correction in the total amount which is given below the statement of account signed by him. If the amount of Rs. 65, 000 was scored out, then the total would be Rs. 2, 00, 116 in Ext. A-2, but the total shown in pencil in Ext. A-2 is Rs. 2, 65, 116 which completely demolishes the case of defendant No. 1 and the explanation given by DW 3 that the entry was made due to somecourts below have, however, relied on a number of circumstances which are purely of a speculative nature, in order to hold that the plaintiffs have not been able to prove the existence of the cash amount of Rs. 65, 000. One of the circumstances was that according to the evidence of defendant No. 5 the amount of Rs. 65, 000 was taken out from the safe and counted in the presence of defendants Nos. 1 and 5 and yet defendant No. 5 did not care to divide it at that time into two equal parts, nor did he insist on theperusal of the evidence of defendant No. 5 clearly shows that he is an extremely emotional sort of a person who believes in the respect of the family above all considerations. It is therefore, not unlikely that defendant No. 5 quietly accepted the advice of his elder brother to divide the amount later on. It was however argued by the learned Counsel for the respondents that defendant No. 5 was a shrewd businessman having managed the family affairs for quite some time and if such a huge amount was concealed from him by his elder brother he would have undoubtedly raised objection at any time before the suit. This conduct defendant No. 5 cannot, however, put the plaintiffs out of court. He had decided to abide by the advice of his elder brother and if he thought that his elder brother did not want to divide the amount of Rs. 65, 000 he kept quiet which is quite in consonance with the character of this man as revealed in his evidence and the circumstances of the case. Assuming however that defendant No. 5 did not take any objection, as the amount was every huge the silence of defendant No. 5 or even his acquiescence in allowing his elder brother to swallow this amount was not a prudent act and has caused serious detriment to the interests of the minors which he had to protect, because the minors at that time were members of the Hindu undivided family. In view of these circumstances, therefore, we are satisfied that the plaintiffs case regarding the deliberate suppression of the cash amount of Rs. 65, 000 has been proved and if this amount would have been available to defendant No. 5, then the plaintiffs would have got 2/5th share of Rs. 55, 000 (Rs. 10, 000 being reserved for the mother) viz. Rs. 27, 500, as far back as 1940. The argument of Mr. Nariman on this point is, therefore, well-founded and mustis, however, a matter of opinion but the fact remains that the market report of the Lakshmi Mills was not encouraging and therefore there was some justification for defendant No. 5 for not option for the shares of the Lakshmi Mills. In these circumstances we hold that so far as the shares of the various mills were concerned there was no unjust or unequal distribution between the parties. This item of moveable properties, therefore, was correctly divided between theour opinion the present case falls within the ratio laid down by the decision cited above.18. Apart from that there are numerous authorities which have consistently held that where a partition is unjust and unfair and detrimental to the interests of the minors the partition would be reopened irrespective of the question of bona fides.Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge :(1) A partition effected between the members of the Hindu undivided family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.(2) When the partition is effected between the members of the Hindu undivided family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.(3) Where, however, a partition effected between the members of the Hindu undivided family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interest of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.(4) Where there is a partition of immovable and moveable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.The facts of the present case, in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above.In the instant case we find from a perusal of the two schedules A and B of Ext. B-3 that there has been ex facie a disparity of about Rs. 10, 000 to which must be added Rs. 27, 500 which we have discussed above. Thus the total disparity comes to Rs. 37, 500 and the share of the minor plaintiffs would be 2/5th which comes to Rs. 15, 000. This amount of Rs. 15, 000 should have been available to the minor plaintiffs as far back as 1940 when the partition was made and they have been deprived of that amount ever since. We find that in the peculiar facts and circumstances of the case as already stated it will not be in the interests of the minors nor conducive in the interests of justice to order the appointment of a Commissioner for reopening the entire partition when the shares of the minor plaintiffs are easily ascertainable in terms of money and can be quantified. In these circumstances we think the best course is to determine the money value of the share of the plaintiffs and to pass a decree for the same which will protect the minors from protracted litigation which might follow the passing of a preliminary decree. This was the approach made by the High Court but we do not agree with the amount quantified by it. If we add interest at the rate of 6% per annum as prayed for in the plaint on the amount of Rs. 15, 000, the interest calculated at this rate for 35 years from 1940 to 1975 would come to Rs. 31, 500. Thus the total amount payable to the plaintiffs comes to Rs. 46,is true that if this was the position the ratio of the decision in Devarajans case (supra) would undoubtedly apply to this case. But this Court had taken care to point out in these very observations which are underlined by us that this rule did not apply to the minors who are undoubtedly permitted in law to reopen the partition once it is proved that the partition was unfair or unjust to them. In view of the concurrent finding of fact of the two courts below that the partition of moveable properties, excepting those with respect to the shares, was unfair and unjust, even according to the decision mentioned above the partition with respect to the moveable properties has to be reopened. | 1 | 6,273 | 2,494 | ### Instruction:
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undoubtedly apply to this case. But this Court had taken care to point out in these very observations which are underlined by us that this rule did not apply to the minors who are undoubtedly permitted in law to reopen the partition once it is proved that the partition was unfair or unjust to them. In view of the concurrent finding of fact of the two courts below that the partition of moveable properties, excepting those with respect to the shares, was unfair and unjust, even according to the decision mentioned above the partition with respect to the moveable properties has to be reopened.17. Moreover in an earlier decision of this Court in Bishundeo Narain v. Seogeni Rai and Jagernath (1951 SCR 548, 556 : AIR 1951 SC 280 ) it was observed :It is well established that a minor can sue for partition and obtain a decree if his next friend can show that, that is for the minors benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of a joint family when one of the members is a minor. In the case of such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside.In our opinion the present case falls within the ratio laid down by the decision cited above.18. Apart from that there are numerous authorities which have consistently held that where a partition is unjust and unfair and detrimental to the interests of the minors the partition would be reopened irrespective of the question of bona fides. In Lal Bahadur Singh v. Sispal Singh (ILR 14 All 498 : 1892 AWN 61) it was observed that even though the ground of fraud and mistake failed, the partition which affected the interests of the minors could be reopened. Similarly in Chanvira Pa v. Da Va (ILR 19 BOM 593) a Division Bench of the Bombay High Court held that a partition will be binding on the minors only if it was just and legal, but if it was made and finalised there being no means of testing the validity of the assets the partition was not final. The same view was taken in Maruti v. Rama (ILR 21 Bom 333).19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge :(1) A partition effected between the members of the Hindu undivided family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.(2) When the partition is effected between the members of the Hindu undivided family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.(3) Where, however, a partition effected between the members of the Hindu undivided family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interest of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.(4) Where there is a partition of immovable and moveable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.The facts of the present case, in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above.20. In the instant case we find from a perusal of the two schedules A and B of Ext. B-3 that there has been ex facie a disparity of about Rs. 10, 000 to which must be added Rs. 27, 500 which we have discussed above. Thus the total disparity comes to Rs. 37, 500 and the share of the minor plaintiffs would be 2/5th which comes to Rs. 15, 000. This amount of Rs. 15, 000 should have been available to the minor plaintiffs as far back as 1940 when the partition was made and they have been deprived of that amount ever since. We find that in the peculiar facts and circumstances of the case as already stated it will not be in the interests of the minors nor conducive in the interests of justice to order the appointment of a Commissioner for reopening the entire partition when the shares of the minor plaintiffs are easily ascertainable in terms of money and can be quantified. In these circumstances we think the best course is to determine the money value of the share of the plaintiffs and to pass a decree for the same which will protect the minors from protracted litigation which might follow the passing of a preliminary decree. This was the approach made by the High Court but we do not agree with the amount quantified by it. If we add interest at the rate of 6% per annum as prayed for in the plaint on the amount of Rs. 15, 000, the interest calculated at this rate for 35 years from 1940 to 1975 would come to Rs. 31, 500. Thus the total amount payable to the plaintiffs comes to Rs. 46, 500.
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1
### Explanation:
character of this man as revealed in his evidence and the circumstances of the case. Assuming however that defendant No. 5 did not take any objection, as the amount was every huge the silence of defendant No. 5 or even his acquiescence in allowing his elder brother to swallow this amount was not a prudent act and has caused serious detriment to the interests of the minors which he had to protect, because the minors at that time were members of the Hindu undivided family. In view of these circumstances, therefore, we are satisfied that the plaintiffs case regarding the deliberate suppression of the cash amount of Rs. 65, 000 has been proved and if this amount would have been available to defendant No. 5, then the plaintiffs would have got 2/5th share of Rs. 55, 000 (Rs. 10, 000 being reserved for the mother) viz. Rs. 27, 500, as far back as 1940. The argument of Mr. Nariman on this point is, therefore, well-founded and mustis, however, a matter of opinion but the fact remains that the market report of the Lakshmi Mills was not encouraging and therefore there was some justification for defendant No. 5 for not option for the shares of the Lakshmi Mills. In these circumstances we hold that so far as the shares of the various mills were concerned there was no unjust or unequal distribution between the parties. This item of moveable properties, therefore, was correctly divided between theour opinion the present case falls within the ratio laid down by the decision cited above.18. Apart from that there are numerous authorities which have consistently held that where a partition is unjust and unfair and detrimental to the interests of the minors the partition would be reopened irrespective of the question of bona fides.Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge :(1) A partition effected between the members of the Hindu undivided family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.(2) When the partition is effected between the members of the Hindu undivided family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.(3) Where, however, a partition effected between the members of the Hindu undivided family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interest of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.(4) Where there is a partition of immovable and moveable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.The facts of the present case, in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above.In the instant case we find from a perusal of the two schedules A and B of Ext. B-3 that there has been ex facie a disparity of about Rs. 10, 000 to which must be added Rs. 27, 500 which we have discussed above. Thus the total disparity comes to Rs. 37, 500 and the share of the minor plaintiffs would be 2/5th which comes to Rs. 15, 000. This amount of Rs. 15, 000 should have been available to the minor plaintiffs as far back as 1940 when the partition was made and they have been deprived of that amount ever since. We find that in the peculiar facts and circumstances of the case as already stated it will not be in the interests of the minors nor conducive in the interests of justice to order the appointment of a Commissioner for reopening the entire partition when the shares of the minor plaintiffs are easily ascertainable in terms of money and can be quantified. In these circumstances we think the best course is to determine the money value of the share of the plaintiffs and to pass a decree for the same which will protect the minors from protracted litigation which might follow the passing of a preliminary decree. This was the approach made by the High Court but we do not agree with the amount quantified by it. If we add interest at the rate of 6% per annum as prayed for in the plaint on the amount of Rs. 15, 000, the interest calculated at this rate for 35 years from 1940 to 1975 would come to Rs. 31, 500. Thus the total amount payable to the plaintiffs comes to Rs. 46,is true that if this was the position the ratio of the decision in Devarajans case (supra) would undoubtedly apply to this case. But this Court had taken care to point out in these very observations which are underlined by us that this rule did not apply to the minors who are undoubtedly permitted in law to reopen the partition once it is proved that the partition was unfair or unjust to them. In view of the concurrent finding of fact of the two courts below that the partition of moveable properties, excepting those with respect to the shares, was unfair and unjust, even according to the decision mentioned above the partition with respect to the moveable properties has to be reopened.
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Khazan Chand Vs. State Of Jammu And Kashmir And Others | the expiry of the quarter and such return is to be accompanied by a treasury receipt or any other proof of payment of tax due according to that return. This requirement implies that the tax due according to a quarterly return has to be paid before the filing of that return by the prescribed date therefor. Under sub-section (8) of section 8, if a dealer fails to pay the tax payable under that section, the provisions of sub-section (2) of section 8 and of sections 16 and 16-A are to apply mutatis mutandis to the recovery thereof. Thus, the provisions of sub-section (2) of section 8 apply when quarterly tax is not paid before furnishing a quarterly return under sub-section (3) of section 8, but by the express terms of sub-section (8) of section 8, the provisions of sub-section (2) of that section will apply to the recovery of quarterly tax not in their entirety but "mutatis mutandis". Under sub-section (1) the tax assessed or any other amount demanded is to be paid within the time specified in the notice of demand. Under sub-section (3), the quarterly tax is to be paid before furnishing the quarterly return but not later than the date prescribed under sub-section (2) of section 7. Thus, by sub-section (3) the time for payment of quarterly tax is not made dependent upon the issuance of a notice of demand and the date for payment to be specified in it but it is statutorily fixed and as under sub-section (8) of section 8 the provisions of sub-section (2) are to apply mutatis mutandis to the recovery of quarterly tax, necessary changes must be made in the provisions of sub-section (2) in their application to the recovery of quarterly tax payable under sub-section (3). Accordingly, the requirement of sub-section (2) that interest will be chargeable from the date specified for payment in the notice of demand cannot be applied to the payment of quarterly tax and necessary alterations as required by sub-section (8) will, therefore, have to be made in the provisions of sub-section (2) in their application to a default made in payment of quarterly tax and sub-section (2) must be read as providing that interest under sub-section (2) will become payable from the date prescribed by sub-section (3) of section 8 for payment of quarterly tax. There is thus no substance in this contention. We may also mention that in the case of certain other orders made under the Act demanding interest on default being made in payment of quarterly tax, the challenge thereto on the ground that no interest can be charged unless a notice has been issued demanding payment of quarterly tax was negatived by this Court in Royal Boot House v. State of Jammu and Kashmir [1984] 56 STC 212 (SC) . (C.M.P. Nos. 32413 and 32414 of 1983 decided on January 6, 1984, by P. N. Bhagwati, Ag. C.J., and Venkataramiah and Varadarajan, JJ.)We now turn to the last contention raised before us, namely, that the assessing authority was not entitled to charge interest at the maximum rate but could only charge interest at the graduated rate specified in sub-section (2) of section 8. 13. It appears that in most, if not in all, orders which have been impugned in these petitions and appeals, interest on the amount of quarterly tax not paid in time has been imposed at a uniform rate for the full period of default and not according to the scale of rates prescribed by sub-section (2) of section 8. Thus where the default was for a period exceeding three months but not exceeding six months, interest has been levied for the full period of default at the rate of two per cent per month and where the default was for a period exceeding six months, interest at the rate of three per cent per month has been levied for the entire period of default. In our opinion, this is not warranted by the terms of sub-section (2) of section 8 of the Act. Sub-section (2) provides for different rates of interest depending upon the length of the period of default. If the default was for a period not exceeding three months, then the interest could only be charged at the rate of one per cent per month and where the default was for a period exceeding three months but not exceeding six months, then the interest which could be charged can only be one per cent per month for the first three months of default and two per cent per month for the remaining period. In the same way, if the default was for a period exceeding six months, interest could be charged only at the rate of one per cent per month for the first three months of default, at the rate of two per cent per month for the next three months of default and at the rate of three per cent per month for the remaining period of default. The grievance made by the assessees is justified and their challenge to the impugned orders on this ground must, therefore, succeed.In the result, though we uphold the constitutionality of sub-sections (1), (2) and (3) of section 8 of the Jammu and Kashmir General Sales Tax Act, 1962, we make the rule issued in each of the writ petitions before us absolute only to the extent that we restrain the State of Jammu and Kashmir from recovering from the assessees who are petitioners before us interest on the amount of quarterly tax paid after the expiry of the date prescribed for payment thereof by sub-section (3) of section 8 of the Act at a rate other than the rate of one per cent per month for the first three months of default and at the rate of two per cent per month for the next three months of default and at the rate of three per cent per month for the period of default exceeding six months. | 1[ds]It appears that in most, if not in all, orders which have been impugned in these petitions and appeals, interest on the amount of quarterly tax not paid in time has been imposed at a uniform rate for the full period of default and not according to the scale of rates prescribed by sub-section (2) of section 8. Thus where the default was for a period exceeding three months but not exceeding six months, interest has been levied for the full period of default at the rate of two per cent per month and where the default was for a period exceeding six months, interest at the rate of three per cent per month has been levied for the entire period of default. In our opinion, this is not warranted by the terms of sub-section (2) of section 8 of the Act. Sub-section (2) provides for different rates of interest depending upon the length of the period of default. If the default was for a period not exceeding three months, then the interest could only be charged at the rate of one per cent per month and where the default was for a period exceeding three months but not exceeding six months, then the interest which could be charged can only be one per cent per month for the first three months of default and two per cent per month for the remaining period. In the same way, if the default was for a period exceeding six months, interest could be charged only at the rate of one per cent per month for the first three months of default, at the rate of two per cent per month for the next three months of default and at the rate of three per cent per month for the remaining period of default. The grievance made by the assessees is justified and their challenge to the impugned orders on this ground must, therefore, succeed.In the result, though we uphold the constitutionality of sub-sections (1), (2) and (3) of section 8 of the Jammu and Kashmir General Sales Tax Act, 1962, we make the rule issued in each of the writ petitions before us absolute only to the extent that we restrain the State of Jammu and Kashmir from recovering from the assessees who are petitioners before us interest on the amount of quarterly tax paid after the expiry of the date prescribed for payment thereof by sub-section (3) of section 8 of the Act at a rate other than the rate of one per cent per month for the first three months of default and at the rate of two per cent per month for the next three months of default and at the rate of three per cent per month for the period of default exceeding six months. | 1 | 8,751 | 509 | ### 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:
the expiry of the quarter and such return is to be accompanied by a treasury receipt or any other proof of payment of tax due according to that return. This requirement implies that the tax due according to a quarterly return has to be paid before the filing of that return by the prescribed date therefor. Under sub-section (8) of section 8, if a dealer fails to pay the tax payable under that section, the provisions of sub-section (2) of section 8 and of sections 16 and 16-A are to apply mutatis mutandis to the recovery thereof. Thus, the provisions of sub-section (2) of section 8 apply when quarterly tax is not paid before furnishing a quarterly return under sub-section (3) of section 8, but by the express terms of sub-section (8) of section 8, the provisions of sub-section (2) of that section will apply to the recovery of quarterly tax not in their entirety but "mutatis mutandis". Under sub-section (1) the tax assessed or any other amount demanded is to be paid within the time specified in the notice of demand. Under sub-section (3), the quarterly tax is to be paid before furnishing the quarterly return but not later than the date prescribed under sub-section (2) of section 7. Thus, by sub-section (3) the time for payment of quarterly tax is not made dependent upon the issuance of a notice of demand and the date for payment to be specified in it but it is statutorily fixed and as under sub-section (8) of section 8 the provisions of sub-section (2) are to apply mutatis mutandis to the recovery of quarterly tax, necessary changes must be made in the provisions of sub-section (2) in their application to the recovery of quarterly tax payable under sub-section (3). Accordingly, the requirement of sub-section (2) that interest will be chargeable from the date specified for payment in the notice of demand cannot be applied to the payment of quarterly tax and necessary alterations as required by sub-section (8) will, therefore, have to be made in the provisions of sub-section (2) in their application to a default made in payment of quarterly tax and sub-section (2) must be read as providing that interest under sub-section (2) will become payable from the date prescribed by sub-section (3) of section 8 for payment of quarterly tax. There is thus no substance in this contention. We may also mention that in the case of certain other orders made under the Act demanding interest on default being made in payment of quarterly tax, the challenge thereto on the ground that no interest can be charged unless a notice has been issued demanding payment of quarterly tax was negatived by this Court in Royal Boot House v. State of Jammu and Kashmir [1984] 56 STC 212 (SC) . (C.M.P. Nos. 32413 and 32414 of 1983 decided on January 6, 1984, by P. N. Bhagwati, Ag. C.J., and Venkataramiah and Varadarajan, JJ.)We now turn to the last contention raised before us, namely, that the assessing authority was not entitled to charge interest at the maximum rate but could only charge interest at the graduated rate specified in sub-section (2) of section 8. 13. It appears that in most, if not in all, orders which have been impugned in these petitions and appeals, interest on the amount of quarterly tax not paid in time has been imposed at a uniform rate for the full period of default and not according to the scale of rates prescribed by sub-section (2) of section 8. Thus where the default was for a period exceeding three months but not exceeding six months, interest has been levied for the full period of default at the rate of two per cent per month and where the default was for a period exceeding six months, interest at the rate of three per cent per month has been levied for the entire period of default. In our opinion, this is not warranted by the terms of sub-section (2) of section 8 of the Act. Sub-section (2) provides for different rates of interest depending upon the length of the period of default. If the default was for a period not exceeding three months, then the interest could only be charged at the rate of one per cent per month and where the default was for a period exceeding three months but not exceeding six months, then the interest which could be charged can only be one per cent per month for the first three months of default and two per cent per month for the remaining period. In the same way, if the default was for a period exceeding six months, interest could be charged only at the rate of one per cent per month for the first three months of default, at the rate of two per cent per month for the next three months of default and at the rate of three per cent per month for the remaining period of default. The grievance made by the assessees is justified and their challenge to the impugned orders on this ground must, therefore, succeed.In the result, though we uphold the constitutionality of sub-sections (1), (2) and (3) of section 8 of the Jammu and Kashmir General Sales Tax Act, 1962, we make the rule issued in each of the writ petitions before us absolute only to the extent that we restrain the State of Jammu and Kashmir from recovering from the assessees who are petitioners before us interest on the amount of quarterly tax paid after the expiry of the date prescribed for payment thereof by sub-section (3) of section 8 of the Act at a rate other than the rate of one per cent per month for the first three months of default and at the rate of two per cent per month for the next three months of default and at the rate of three per cent per month for the period of default exceeding six months.
### Response:
1
### Explanation:
It appears that in most, if not in all, orders which have been impugned in these petitions and appeals, interest on the amount of quarterly tax not paid in time has been imposed at a uniform rate for the full period of default and not according to the scale of rates prescribed by sub-section (2) of section 8. Thus where the default was for a period exceeding three months but not exceeding six months, interest has been levied for the full period of default at the rate of two per cent per month and where the default was for a period exceeding six months, interest at the rate of three per cent per month has been levied for the entire period of default. In our opinion, this is not warranted by the terms of sub-section (2) of section 8 of the Act. Sub-section (2) provides for different rates of interest depending upon the length of the period of default. If the default was for a period not exceeding three months, then the interest could only be charged at the rate of one per cent per month and where the default was for a period exceeding three months but not exceeding six months, then the interest which could be charged can only be one per cent per month for the first three months of default and two per cent per month for the remaining period. In the same way, if the default was for a period exceeding six months, interest could be charged only at the rate of one per cent per month for the first three months of default, at the rate of two per cent per month for the next three months of default and at the rate of three per cent per month for the remaining period of default. The grievance made by the assessees is justified and their challenge to the impugned orders on this ground must, therefore, succeed.In the result, though we uphold the constitutionality of sub-sections (1), (2) and (3) of section 8 of the Jammu and Kashmir General Sales Tax Act, 1962, we make the rule issued in each of the writ petitions before us absolute only to the extent that we restrain the State of Jammu and Kashmir from recovering from the assessees who are petitioners before us interest on the amount of quarterly tax paid after the expiry of the date prescribed for payment thereof by sub-section (3) of section 8 of the Act at a rate other than the rate of one per cent per month for the first three months of default and at the rate of two per cent per month for the next three months of default and at the rate of three per cent per month for the period of default exceeding six months.
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State of Uttar Pradesh Vs. Ata Mohd | nature of the right that vested in the Municipality over the streets, Subba Rao, J. (as he then was) after considering the decisions of the English Courts and the High Courts, summed up the law on this subject as follows:-"The inference that the side lands are also included in the public way is drawn easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and `so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remain s the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights."12. After referring to S.116(g) of the Uttar Pradesh Municipalities Act, under which a public street vests in a Municipality, the learned Judge referred to a decision of a Division Bench of the Madras High Court in S. Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council where the scope of the vesting under the Madras District Municipalities Act was dealt with. The learned Judge extracted the head note from the Madras decision observing that it brought out the gist of the decision. The head note runs as follows:-"When a street is vested in a Municipal Council, such vesting does not transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists. It does not own the soil from the centre of the earth usque ad caelum, but it has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers."13. The view taken by the Division Bench of the Madras High Court was t hat though the street vested in the Municipal Council, it does not transfer to the Municipality the rights of the owner in the site or soil over which the street exists. The question has been dealt with at some detail in the Madras decision and as it has been approved by this Court, it may be usefully referred to. The High Court while observing that if the land itself had been acquired by the Municipality, either by purchase or otherwise and roads and drains formed thereon, the Municipality would have been the owner of the land but if the street or highway over the land was dedicated to the public either by the State or by the owners of the land adjoining the highway will continue vested, subject only to the burden of the highway, in the State or the respective owners of the land on either side of the highway ad medium filum, or in any other person who may have dedicated the street to the public as the case may be. The Court after pointing out that the Madras Municipal Act was a modelled after the English Metropolis Local Management Act, 1855 referred to the English cases which dealt with the vesting of the street in the Municipality and observed:-"The conclusion to be drawn from the English case law is t hat what is vested in urban authorities under statutes similar to the District Municipalities Act, is not the land over which the street is formed, but the street qua street and that the property in the street thus vested in a Mu nicipal Council is not general property or a species of property known to the Common Law, but a special property created by statute and vested in a corporate body for public purposes, that such property as it has in the street continues only so long as the street is a highway by being excluded by notification of Government under section 23 of Act IV of 1884 or by being legally stopped up or diverted, or by the operation of the law limitation (assuming that by such operation the highway can be extinguished), the interest of the corporate body determines."14. It is, therefore, clear that when a street ceases to be a highway by its being diverted to some other use, the interest of the corporate body determines. After referring to the decisions of the High Courts in India, it expressed its concurrence with the decisions in Chairman of the Naihati Municipality v. Kishori Lal Goswami, Madhu Sudhun Kunda v. Pramode Nath Roy and Nihal Chand v. Azmat Ali Khan and concluded that the nature or the right that vested in the Municipality as regards public streets there is no disposal by the Indian Legislature of any land or hereditament vested in the Government. What is vested in the Municipality under S. 116(g) is the street qua street and if the Municipality put the street to any other user than that for which it was intended, the State as its owner, is entitled to intervene and maintain an action and to get any person in illegal occupation evicted. We accept the contention of Mr. Dixit, learned counsel for the State of U.P. that the State is the owner and in the circumstances of the case entitled to maintain action for eviction of the respondent. The view taken by the High Court is erroneous. | 1[ds]The High Court has found that the State was the owner of the property till the Municipal Act was passed and this finding was not challenged before us. The only point on which the State lost the suit before the High Court was that after the passing of the Uttar Pradesh Municipal Act, the property vested in the Municipality and the State ceased to be the owner and, therefore, cannot maintain the suit for evicting theMunicipalities in various States were cr eated under the respective Municipalities Acts, in order to facilitate the efficient administration of the Municipal areas and to provide lighting, watering and maintaining of public streets and places. The duties of the Municipal Boards are specified in S.7 of the U. P. Municipalities Act. Under S. 118 of the Act, the Municipal Board is empowered to manage or control any property entrusted to its management and control. The vesting of the property, in the Municipality is under S. 116 of the Act. S. 116 provides that subject to any special reservation made by the State Government, all property of the nature specified in this section and situated within the Municipality shall vest in and belong to the Board, and shall, with all property which may become vested in the Board, be under its direction, management andview taken by the Division Bench of the Madras High Court was t hat though the street vested in the Municipal Council, it does not transfer to the Municipality the rights of the owner in the site or soil over which the street exists. The question has been dealt with at some detail in the Madras decision and as it has been approved by this Court, it may be usefully referred to. The High Court while observing that if the land itself had been acquired by the Municipality, either by purchase or otherwise and roads and drains formed thereon, the Municipality would have been the owner of the land but if the street or highway over the land was dedicated to the public either by the State or by the owners of the land adjoining the highway will continue vested, subject only to the burden of the highway, in the State or the respective owners of the land on either side of the highway ad medium filum, or in any other person who may have dedicated the street to the public as the case may be. The Court after pointing out that the Madras Municipal Act was a modelled after the English Metropolis Local Management Act, 1855 referred to the English cases which dealt with the vesting of the street in the Municipality andconclusion to be drawn from the English case law is t hat what is vested in urban authorities under statutes similar to the District Municipalities Act, is not the land over which the street is formed, but the street qua street and that the property in the street thus vested in a Mu nicipal Council is not general property or a species of property known to the Common Law, but a special property created by statute and vested in a corporate body for public purposes, that such property as it has in the street continues only so long as the street is a highway by being excluded by notification of Government under section 23 of Act IV of 1884 or by being legally stopped up or diverted, or by the operation of the law limitation (assuming that by such operation the highway can be extinguished), the interest of the corporate bodyis, therefore, clear that when a street ceases to be a highway by its being diverted to some other use, the interest of the corporate body determines. After referring to the decisions of the High Courts in India, it expressed its concurrence with the decisions in Chairman of the Naihati Municipality v. Kishori Lal Goswami, Madhu Sudhun Kunda v. Pramode Nath Roy and Nihal Chand v. Azmat Ali Khan and concluded that the nature or the right that vested in the Municipality as regards public streets there is no disposal by the Indian Legislature of any land or hereditament vested in the Government. What is vested in the Municipality under S. 116(g) is the street qua street and if the Municipality put the street to any other user than that for which it was intended, the State as its owner, is entitled to intervene and maintain an action and to get any person in illegal occupation evicted. We accept the contention of Mr. Dixit, learned counsel for the State of U.P. that the State is the owner and in the circumstances of the case entitled to maintain action for eviction of the respondent. The view taken by the High Court is erroneous. | 1 | 3,221 | 850 | ### 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:
nature of the right that vested in the Municipality over the streets, Subba Rao, J. (as he then was) after considering the decisions of the English Courts and the High Courts, summed up the law on this subject as follows:-"The inference that the side lands are also included in the public way is drawn easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and `so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remain s the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights."12. After referring to S.116(g) of the Uttar Pradesh Municipalities Act, under which a public street vests in a Municipality, the learned Judge referred to a decision of a Division Bench of the Madras High Court in S. Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council where the scope of the vesting under the Madras District Municipalities Act was dealt with. The learned Judge extracted the head note from the Madras decision observing that it brought out the gist of the decision. The head note runs as follows:-"When a street is vested in a Municipal Council, such vesting does not transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists. It does not own the soil from the centre of the earth usque ad caelum, but it has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers."13. The view taken by the Division Bench of the Madras High Court was t hat though the street vested in the Municipal Council, it does not transfer to the Municipality the rights of the owner in the site or soil over which the street exists. The question has been dealt with at some detail in the Madras decision and as it has been approved by this Court, it may be usefully referred to. The High Court while observing that if the land itself had been acquired by the Municipality, either by purchase or otherwise and roads and drains formed thereon, the Municipality would have been the owner of the land but if the street or highway over the land was dedicated to the public either by the State or by the owners of the land adjoining the highway will continue vested, subject only to the burden of the highway, in the State or the respective owners of the land on either side of the highway ad medium filum, or in any other person who may have dedicated the street to the public as the case may be. The Court after pointing out that the Madras Municipal Act was a modelled after the English Metropolis Local Management Act, 1855 referred to the English cases which dealt with the vesting of the street in the Municipality and observed:-"The conclusion to be drawn from the English case law is t hat what is vested in urban authorities under statutes similar to the District Municipalities Act, is not the land over which the street is formed, but the street qua street and that the property in the street thus vested in a Mu nicipal Council is not general property or a species of property known to the Common Law, but a special property created by statute and vested in a corporate body for public purposes, that such property as it has in the street continues only so long as the street is a highway by being excluded by notification of Government under section 23 of Act IV of 1884 or by being legally stopped up or diverted, or by the operation of the law limitation (assuming that by such operation the highway can be extinguished), the interest of the corporate body determines."14. It is, therefore, clear that when a street ceases to be a highway by its being diverted to some other use, the interest of the corporate body determines. After referring to the decisions of the High Courts in India, it expressed its concurrence with the decisions in Chairman of the Naihati Municipality v. Kishori Lal Goswami, Madhu Sudhun Kunda v. Pramode Nath Roy and Nihal Chand v. Azmat Ali Khan and concluded that the nature or the right that vested in the Municipality as regards public streets there is no disposal by the Indian Legislature of any land or hereditament vested in the Government. What is vested in the Municipality under S. 116(g) is the street qua street and if the Municipality put the street to any other user than that for which it was intended, the State as its owner, is entitled to intervene and maintain an action and to get any person in illegal occupation evicted. We accept the contention of Mr. Dixit, learned counsel for the State of U.P. that the State is the owner and in the circumstances of the case entitled to maintain action for eviction of the respondent. The view taken by the High Court is erroneous.
### Response:
1
### Explanation:
The High Court has found that the State was the owner of the property till the Municipal Act was passed and this finding was not challenged before us. The only point on which the State lost the suit before the High Court was that after the passing of the Uttar Pradesh Municipal Act, the property vested in the Municipality and the State ceased to be the owner and, therefore, cannot maintain the suit for evicting theMunicipalities in various States were cr eated under the respective Municipalities Acts, in order to facilitate the efficient administration of the Municipal areas and to provide lighting, watering and maintaining of public streets and places. The duties of the Municipal Boards are specified in S.7 of the U. P. Municipalities Act. Under S. 118 of the Act, the Municipal Board is empowered to manage or control any property entrusted to its management and control. The vesting of the property, in the Municipality is under S. 116 of the Act. S. 116 provides that subject to any special reservation made by the State Government, all property of the nature specified in this section and situated within the Municipality shall vest in and belong to the Board, and shall, with all property which may become vested in the Board, be under its direction, management andview taken by the Division Bench of the Madras High Court was t hat though the street vested in the Municipal Council, it does not transfer to the Municipality the rights of the owner in the site or soil over which the street exists. The question has been dealt with at some detail in the Madras decision and as it has been approved by this Court, it may be usefully referred to. The High Court while observing that if the land itself had been acquired by the Municipality, either by purchase or otherwise and roads and drains formed thereon, the Municipality would have been the owner of the land but if the street or highway over the land was dedicated to the public either by the State or by the owners of the land adjoining the highway will continue vested, subject only to the burden of the highway, in the State or the respective owners of the land on either side of the highway ad medium filum, or in any other person who may have dedicated the street to the public as the case may be. The Court after pointing out that the Madras Municipal Act was a modelled after the English Metropolis Local Management Act, 1855 referred to the English cases which dealt with the vesting of the street in the Municipality andconclusion to be drawn from the English case law is t hat what is vested in urban authorities under statutes similar to the District Municipalities Act, is not the land over which the street is formed, but the street qua street and that the property in the street thus vested in a Mu nicipal Council is not general property or a species of property known to the Common Law, but a special property created by statute and vested in a corporate body for public purposes, that such property as it has in the street continues only so long as the street is a highway by being excluded by notification of Government under section 23 of Act IV of 1884 or by being legally stopped up or diverted, or by the operation of the law limitation (assuming that by such operation the highway can be extinguished), the interest of the corporate bodyis, therefore, clear that when a street ceases to be a highway by its being diverted to some other use, the interest of the corporate body determines. After referring to the decisions of the High Courts in India, it expressed its concurrence with the decisions in Chairman of the Naihati Municipality v. Kishori Lal Goswami, Madhu Sudhun Kunda v. Pramode Nath Roy and Nihal Chand v. Azmat Ali Khan and concluded that the nature or the right that vested in the Municipality as regards public streets there is no disposal by the Indian Legislature of any land or hereditament vested in the Government. What is vested in the Municipality under S. 116(g) is the street qua street and if the Municipality put the street to any other user than that for which it was intended, the State as its owner, is entitled to intervene and maintain an action and to get any person in illegal occupation evicted. We accept the contention of Mr. Dixit, learned counsel for the State of U.P. that the State is the owner and in the circumstances of the case entitled to maintain action for eviction of the respondent. The view taken by the High Court is erroneous.
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Commnr. Of Central Excise, Indore Vs. M/S.S. Kumars Ltd. | the relationship was one of principal to principal and not principal and agent and also that the assessee could manufacture biscuits of other brands and sell the same. It was observed that the assessee had been established much prior to its agreement with Britannia Industries Limited. In the circumstances it was held that the decision in M/s. Ujagar Prints II and others could not be factually distinguished. The Court proceeded on the basis that the last three lines of the explanatory order in M/s. Ujagar Prints III (which we have quoted earlier) contained the ratio of the decision of both M/s. Ujagar Prints II and III. 19. In M/s. Ujagar Prints II and III, the assessees were independent processors and the Court proceeded on that factual basis. The appellants contention therefore is that as the processor (the respondent No.1 in this case) is not independent of the merchant manufacturer or trader, the ratio of M/s. Ujagar Prints III would not apply. In Pawan Biscuits although no conclusion from the facts has been recorded, it is clear that it was the facts which induced the Court to come to the conclusion that the relationship between the assessee and M/s. Britannia Industries Limited was that of an independent processor and a merchant manufacturer and that M/s. Ujagar Prints II and III were factually on all fours. The decision therefore does not take us nearer to a solution of the dispute raised by the appellant.20. The contention of the respondents is that neither the show cause notice nor the Commissioner in his order proceeded on the basis that Section 4(1) (a) of the Act applied but that they had applied Section 4(1) (b) and the Valuation Rules. It is their submission that the concept of deemed sale at the processors factory introduced by M/s. Ujagar Prints III, does not strictly fall within Valuation Rules 4 or 5. They urged, and the Tribunals view was, that M/s. Ujagar Prints III applied the procedure prescribed in Rule 6(b)(ii). As we have seen Rule 6(b) deals with excisable goods which are not sold by assessee but "are used" or "consumed" by him or on his behalf in the production or manufacture of "other" articles. In such case, the value of the excisable goods is to be based either (i) on the value of the comparable goods produced or manufactured by the assessee or by any other assessee, or if that is not possible under (ii) on the cost of production or manufacture, including profits, if any, which the assessee would have normally earned on the sale of such goods. 21. We do not agree that if Section 4(1)(b) is invoked Rules 4 and 5 do not apply. We have already held that Rule 3 does not make any distinction between the rules which may be invoked even when Section 4 (1) (b) is invoked. If none of the rules i.e. 4, 5 or 6, in terms apply, then Rule 7 would. In other words, the sale which is referred to in Rules 4, 5 and 6 may in the circumstances reflect a notional sale and provide a guideline for applying analogous principles mutatis mutandis under Rule 7.22. Rule 6(b) relied on by the respondent does not in terms apply. As we have noted, Rule 6(b)(ii) envisages a situation where a manufacturer consumes the manufactured commodity himself for making other excisable articles. But assuming it does in terms apply it is noteworthy that Rule 6(b)(ii) speaks of the excisable value being the cost of manufacture including the profits "normally" earned. Thus, it would still be open to the Revenue to say that the cost of grey fabrics as well as the processed charges were depressed because the parties were related persons. Indeed, the underlying principle of all the Rules as well as Section 4 is that different considerations would apply if the transactions concerned are not at arms length. Neither section 4(1) (b) nor Rule 6(b)(ii) have done away with the concept of "related person".23. We therefore do not agree that Ujagar Prints III would apply even to a processor who is not independent and, as is alleged in this case, the merchant manufacturers and the purchasing traders are merely extensions of the processor. In the latter case, the processor is not a mere processor but also a merchant manufacturer who purchases/manufactures the raw material, processes it and sells it himself in the wholesale market. In such a situation, the profit is not of a processor but of a merchant manufacturer and a trader. If the transaction is between related persons, the profit would not be "normally earned" within the meaning of Rule 6(b)(ii). If it is established that the dealings were with related persons of the manufacturer the sale of the processed fabrics would not be limited to the formula prescribed by Ujagar Prints III but would be subject to excise duty under the principles enunciated in Empire Industries as affirmed in Ujagar Prints II, incorporating the arms length principle.24. The respondent No.1 assessee had submitted before the Department and before us that if the assessee was not permitted to rely upon the formula laid down in M/s. Ujagar Prints III then it was entitled to discounts and advertisement expenses. These were not allowed by the Commissioner. As the question whether the respondent No.1 would be entitled to discounts and deductions claimed would only arise if it held that the ratio of M/s. Ujagar Prints III would not apply, the Tribunal did not address this aspect of the matter at all nor did it consider whether the merchant-manufacturers and the respondent No.1 were related persons. Since the Tribunal, in our opinion, wrongly upheld the respondents contention that the formula in M/s. Ujagar Prints III would apply in full measure, it is now necessary for the Tribunal to consider whether the respondents were related persons and whether the respondent No. 1 would be entitled to claim discounts or could exclude the advertisement expenses incurred by the dealers. | 1[ds]We may note at the outset that Rule 3 provides for the applicability of all the valuation rules when it says the value of any excisable goods shall, for the purposes of clause (b) of(1) of Section 4 of the Act, be determined by the proper officer in accordance with these rules. No distinction is made between the applicability of the succeeding rules save that they are to be considered for application in numerical order. Rule 4 deals with the determination of the value of excisable goods on the basis of sale by the assessee at any other time nearest to the time of the removal of the goods being assessed. Rule 5 deals with a situation when the excisable goods are sold in circumstances specified in Section 4(1)(a) of the Act. If the price is not the sole consideration, the value of the excisable goods is required to be based on the aggregate of the price and "the amount of the money value of any additional consideration flowing directly or indirectly from the buyer to the assessee". If the value of the excisable goods cannot be determined under Rules 4 or 5 then the procedure prescribed under Rule 6 would have to be followed viz.We do not agree that if Section 4(1)(b) is invoked Rules 4 and 5 do not apply. We have already held that Rule 3 does not make any distinction between the rules which may be invoked even when Section 4 (1) (b) is invoked. If none of the rules i.e. 4, 5 or 6, in terms apply, then Rule 7 would. In other words, the sale which is referred to in Rules 4, 5 and 6 may in the circumstances reflect a notional sale and provide a guideline for applying analogous principles mutatis mutandis under Rule 7.22. Rule 6(b) relied on by the respondent does not in terms apply. As we have noted, Rule 6(b)(ii) envisages a situation where a manufacturer consumes the manufactured commodity himself for making other excisable articles. But assuming it does in terms apply it is noteworthy that Rule 6(b)(ii) speaks of the excisable value being the cost of manufacture including the profits "normally" earned. Thus, it would still be open to the Revenue to say that the cost of grey fabrics as well as the processed charges were depressed because the parties were related persons. Indeed, the underlying principle of all the Rules as well as Section 4 is that different considerations would apply if the transactions concerned are not at arms length. Neither section 4(1) (b) nor Rule 6(b)(ii) have done away with the concept of "related person".23. We therefore do not agree that Ujagar Prints III would apply even to a processor who is not independent and, as is alleged in this case, the merchant manufacturers and the purchasing traders are merely extensions of the processor. In the latter case, the processor is not a mere processor but also a merchant manufacturer who purchases/manufactures the raw material, processes it and sells it himself in the wholesale market. In such a situation, the profit is not of a processor but of a merchant manufacturer and a trader. If the transaction is between related persons, the profit would not be "normally earned" within the meaning of Rule 6(b)(ii). If it is established that the dealings were with related persons of the manufacturer the sale of the processed fabrics would not be limited to the formula prescribed by Ujagar Prints III but would be subject to excise duty under the principles enunciated in Empire Industries as affirmed in Ujagar Prints II, incorporating the arms length principle.24. The respondent No.1 assessee had submitted before the Department and before us that if the assessee was not permitted to rely upon the formula laid down in M/s. Ujagar Prints III then it was entitled to discounts and advertisement expenses. These were not allowed by the Commissioner. As the question whether the respondent No.1 would be entitled to discounts and deductions claimed would only arise if it held that the ratio of M/s. Ujagar Prints III would not apply, the Tribunal did not address this aspect of the matter at all nor did it consider whether theand the respondent No.1 were related persons. Since the Tribunal, in our opinion, wrongly upheld the respondents contention that the formula in M/s. Ujagar Prints III would apply in full measure, it is now necessary for the Tribunal to consider whether the respondents were related persons and whether the respondent No. 1 would be entitled to claim discounts or could exclude the advertisement expenses incurred by the dealers. | 1 | 4,819 | 887 | ### 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 relationship was one of principal to principal and not principal and agent and also that the assessee could manufacture biscuits of other brands and sell the same. It was observed that the assessee had been established much prior to its agreement with Britannia Industries Limited. In the circumstances it was held that the decision in M/s. Ujagar Prints II and others could not be factually distinguished. The Court proceeded on the basis that the last three lines of the explanatory order in M/s. Ujagar Prints III (which we have quoted earlier) contained the ratio of the decision of both M/s. Ujagar Prints II and III. 19. In M/s. Ujagar Prints II and III, the assessees were independent processors and the Court proceeded on that factual basis. The appellants contention therefore is that as the processor (the respondent No.1 in this case) is not independent of the merchant manufacturer or trader, the ratio of M/s. Ujagar Prints III would not apply. In Pawan Biscuits although no conclusion from the facts has been recorded, it is clear that it was the facts which induced the Court to come to the conclusion that the relationship between the assessee and M/s. Britannia Industries Limited was that of an independent processor and a merchant manufacturer and that M/s. Ujagar Prints II and III were factually on all fours. The decision therefore does not take us nearer to a solution of the dispute raised by the appellant.20. The contention of the respondents is that neither the show cause notice nor the Commissioner in his order proceeded on the basis that Section 4(1) (a) of the Act applied but that they had applied Section 4(1) (b) and the Valuation Rules. It is their submission that the concept of deemed sale at the processors factory introduced by M/s. Ujagar Prints III, does not strictly fall within Valuation Rules 4 or 5. They urged, and the Tribunals view was, that M/s. Ujagar Prints III applied the procedure prescribed in Rule 6(b)(ii). As we have seen Rule 6(b) deals with excisable goods which are not sold by assessee but "are used" or "consumed" by him or on his behalf in the production or manufacture of "other" articles. In such case, the value of the excisable goods is to be based either (i) on the value of the comparable goods produced or manufactured by the assessee or by any other assessee, or if that is not possible under (ii) on the cost of production or manufacture, including profits, if any, which the assessee would have normally earned on the sale of such goods. 21. We do not agree that if Section 4(1)(b) is invoked Rules 4 and 5 do not apply. We have already held that Rule 3 does not make any distinction between the rules which may be invoked even when Section 4 (1) (b) is invoked. If none of the rules i.e. 4, 5 or 6, in terms apply, then Rule 7 would. In other words, the sale which is referred to in Rules 4, 5 and 6 may in the circumstances reflect a notional sale and provide a guideline for applying analogous principles mutatis mutandis under Rule 7.22. Rule 6(b) relied on by the respondent does not in terms apply. As we have noted, Rule 6(b)(ii) envisages a situation where a manufacturer consumes the manufactured commodity himself for making other excisable articles. But assuming it does in terms apply it is noteworthy that Rule 6(b)(ii) speaks of the excisable value being the cost of manufacture including the profits "normally" earned. Thus, it would still be open to the Revenue to say that the cost of grey fabrics as well as the processed charges were depressed because the parties were related persons. Indeed, the underlying principle of all the Rules as well as Section 4 is that different considerations would apply if the transactions concerned are not at arms length. Neither section 4(1) (b) nor Rule 6(b)(ii) have done away with the concept of "related person".23. We therefore do not agree that Ujagar Prints III would apply even to a processor who is not independent and, as is alleged in this case, the merchant manufacturers and the purchasing traders are merely extensions of the processor. In the latter case, the processor is not a mere processor but also a merchant manufacturer who purchases/manufactures the raw material, processes it and sells it himself in the wholesale market. In such a situation, the profit is not of a processor but of a merchant manufacturer and a trader. If the transaction is between related persons, the profit would not be "normally earned" within the meaning of Rule 6(b)(ii). If it is established that the dealings were with related persons of the manufacturer the sale of the processed fabrics would not be limited to the formula prescribed by Ujagar Prints III but would be subject to excise duty under the principles enunciated in Empire Industries as affirmed in Ujagar Prints II, incorporating the arms length principle.24. The respondent No.1 assessee had submitted before the Department and before us that if the assessee was not permitted to rely upon the formula laid down in M/s. Ujagar Prints III then it was entitled to discounts and advertisement expenses. These were not allowed by the Commissioner. As the question whether the respondent No.1 would be entitled to discounts and deductions claimed would only arise if it held that the ratio of M/s. Ujagar Prints III would not apply, the Tribunal did not address this aspect of the matter at all nor did it consider whether the merchant-manufacturers and the respondent No.1 were related persons. Since the Tribunal, in our opinion, wrongly upheld the respondents contention that the formula in M/s. Ujagar Prints III would apply in full measure, it is now necessary for the Tribunal to consider whether the respondents were related persons and whether the respondent No. 1 would be entitled to claim discounts or could exclude the advertisement expenses incurred by the dealers.
### Response:
1
### Explanation:
We may note at the outset that Rule 3 provides for the applicability of all the valuation rules when it says the value of any excisable goods shall, for the purposes of clause (b) of(1) of Section 4 of the Act, be determined by the proper officer in accordance with these rules. No distinction is made between the applicability of the succeeding rules save that they are to be considered for application in numerical order. Rule 4 deals with the determination of the value of excisable goods on the basis of sale by the assessee at any other time nearest to the time of the removal of the goods being assessed. Rule 5 deals with a situation when the excisable goods are sold in circumstances specified in Section 4(1)(a) of the Act. If the price is not the sole consideration, the value of the excisable goods is required to be based on the aggregate of the price and "the amount of the money value of any additional consideration flowing directly or indirectly from the buyer to the assessee". If the value of the excisable goods cannot be determined under Rules 4 or 5 then the procedure prescribed under Rule 6 would have to be followed viz.We do not agree that if Section 4(1)(b) is invoked Rules 4 and 5 do not apply. We have already held that Rule 3 does not make any distinction between the rules which may be invoked even when Section 4 (1) (b) is invoked. If none of the rules i.e. 4, 5 or 6, in terms apply, then Rule 7 would. In other words, the sale which is referred to in Rules 4, 5 and 6 may in the circumstances reflect a notional sale and provide a guideline for applying analogous principles mutatis mutandis under Rule 7.22. Rule 6(b) relied on by the respondent does not in terms apply. As we have noted, Rule 6(b)(ii) envisages a situation where a manufacturer consumes the manufactured commodity himself for making other excisable articles. But assuming it does in terms apply it is noteworthy that Rule 6(b)(ii) speaks of the excisable value being the cost of manufacture including the profits "normally" earned. Thus, it would still be open to the Revenue to say that the cost of grey fabrics as well as the processed charges were depressed because the parties were related persons. Indeed, the underlying principle of all the Rules as well as Section 4 is that different considerations would apply if the transactions concerned are not at arms length. Neither section 4(1) (b) nor Rule 6(b)(ii) have done away with the concept of "related person".23. We therefore do not agree that Ujagar Prints III would apply even to a processor who is not independent and, as is alleged in this case, the merchant manufacturers and the purchasing traders are merely extensions of the processor. In the latter case, the processor is not a mere processor but also a merchant manufacturer who purchases/manufactures the raw material, processes it and sells it himself in the wholesale market. In such a situation, the profit is not of a processor but of a merchant manufacturer and a trader. If the transaction is between related persons, the profit would not be "normally earned" within the meaning of Rule 6(b)(ii). If it is established that the dealings were with related persons of the manufacturer the sale of the processed fabrics would not be limited to the formula prescribed by Ujagar Prints III but would be subject to excise duty under the principles enunciated in Empire Industries as affirmed in Ujagar Prints II, incorporating the arms length principle.24. The respondent No.1 assessee had submitted before the Department and before us that if the assessee was not permitted to rely upon the formula laid down in M/s. Ujagar Prints III then it was entitled to discounts and advertisement expenses. These were not allowed by the Commissioner. As the question whether the respondent No.1 would be entitled to discounts and deductions claimed would only arise if it held that the ratio of M/s. Ujagar Prints III would not apply, the Tribunal did not address this aspect of the matter at all nor did it consider whether theand the respondent No.1 were related persons. Since the Tribunal, in our opinion, wrongly upheld the respondents contention that the formula in M/s. Ujagar Prints III would apply in full measure, it is now necessary for the Tribunal to consider whether the respondents were related persons and whether the respondent No. 1 would be entitled to claim discounts or could exclude the advertisement expenses incurred by the dealers.
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