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Commissioner of Central Excise, Vadodara Vs. Vadilal Gases Ltd. and Ors | illumination. The Nitrogen gas gives long life to the filament of the bulb. Similarly, when the mixture of argon and carbondioxide is used in welding, the argon gas creates an inert atmosphere while the carbon dioxide gas stops oxidization of the material. Thus the individual gases retained their individual properties even when filled in the same cylinder. With the advent of modern techniques and the facility of filling two or more gases in one cylinder, the customers found them more economical to handle the gases and it saved labour. Further it was not necessary for the customer to mix these gases individually in a desired ratio, since such an exercise was more risky and needs expert technical handling. The question is whether in such circumstances the mixture of two or more gases in one cylinder amounted to manufacture in terms of Section 2(f) of the Central Excise Act......12. The decision of the Tribunal in Goyal Gases (P) Ltd. (supra) to the effect that such activity (mixing of gases) did not amount to manufacture has been affirmed by this Court by its order dated 03.04.2000 reported in Commissioner of Central Excise v. Goyal Gases (P) Ltd. 2000 (119) E.L.T. 5 (S.C.) which is in the following terms:The Tribunal has categorically held that no evidence was led by the Department to controvert the Assessees case that no new product with distinct usage and marketability had been produced. Even so, it is contended that the Tribunal failed to appreciate that by the mixing of four more gases a totally different product with distinct use and marketability was produced. We find, having heard the learned Additional Solicitor General, that there is, in fact, no evidence led by the Department to establish that case. The reliance upon the order of the Commissioner would appear to be misplaced because the Commissioners ipse dixit carries the matter no further.13. While it may be correct that in Goyal Gases (P) Ltd. (supra), the scope and effect of Note 10 of Chapter 28 of the Tariff Act was not specifically under consideration, nonetheless, the conclusion of the learned Tribunal, affirmed by this Court, to the effect that the mixture of an inert gas with oxygen, witrogen etc. does not result in creation of a new commodity, marketable as such, would be relevant insofar as the second limb of Note 10 of Chapter 28 of the Tariff Act is concerned. The finding in Goyal Gases (P) Ltd. (supra) that notwithstanding the mixing, the gases retained their individual properties even after being filled up in the same cylinder would clearly demonstrate that a new marketable product does not come into existence by the process of mixing. In this regard, the fact that the two items constituting the mixture are also separately marketable would be relevant in determining the applicability of the second part of Note 10 of Chapter 28 of the Tariff Act to the present case.14. If that be so, we do not see as to how on the findings recorded by the learned Commissioner with regard to the "manufacturing process" and the data laid before us as well as the ratio of decision in Goyal Gases (P) Ltd. (supra), a view can be taken that the second part of the requirement stipulated by Note 10 of Chapter 28 of the Tariff Act is attracted in the present case and any new marketable product/item comes in existence by the process of mixture of gases in question.15. The reliance placed by the Appellant-Revenue on the decision of this Court in Air Liquide North India Private Limited v. Commissioner of Central Excise (2011) 15 SCC 264 does not assist the Revenue in any manner. In the said case, neither the adjudicating authority nor this Court had the benefit of the details of the manufacturing process inasmuch as the same was kept away from the Court by the Assessee by contending the same to be a "trade-secret". In these circumstances, this Court in coming to its conclusion that the process deployed amounted to manufacture within the meaning of Note 10 of Chapter 28 of the Tariff Act relied on certain other features of the case, details of which have been set out in para 16 of the judgment, which may be noticed below:The only conclusion from the above is that the tests and the "process" conducted by the Appellant would amount to "treatment" in terms of Chapter Note 10 of Chapter 28 of the Tariff Act of the Act. The fact that the gas was not sold as such is further established from the fact that the gas, after the tests and treatment, was sold at a profit of 40% to 60%. if it was really being sold as such, then the customers of the Appellants could have purchased the same from the Appellants suppliers. When this question was put to the officer of the Appellant, he could not offer any cogent answer but merely stated that it was the customers preference. Further, he did not give proper answer as to how the profit margin was so high. The Appellant had supplied the gas not as such and the under the grade and style of the original manufacturer but under its own grade and standard. Further, while selling the gas, different cylinders were given separate certificates with regard to the pressure, moisture, purification and quality of the gas. This explains the high price at which the Appellant was selling the gas. Therefore, in our opinion, the Tribunal has rightly observed that if no treatment was given to the gas purchased by the Appellant, the customers of the Appellant would not have been purchasing helium from the Appellant at a price 40% to 60% above the price at which the Appellant was purchasing.16. In the light of the above, we do not see how the decision of this Court in Air Liquide North India Private Limited (supra) can assist the revenue in bringing home the point urged before us in the appeals under consideration. | 0[ds]7. The above issue need not detain the Court. We have a decision of the learned Tribunal in Ammonia Supply Company v. CCE, New Delhi 2001 (131) E.L.T. 626 (Tri.-Del.) wherein the Tribunal has taken the view that ammonia coming in tankers cannot be treated to have come in bulk packs. In this regard, there is also a Circular dated 08.10.1997 where this question has been dealt with by the Ministry of Finance (Department of Revenue) in the following way:In this context clarification have been sought regarding the scope of the expression "relabelling of containers and repacking from bulk packs". Doubts have been raised as to whether receiving of liquid chemicals in bulk in containers and offloading the same at the dealers premises or godown into available empty vessel and consequent delivery of these material in the very same condition to customers against orders can be held to be an act of repacking operations as envisaged in the said chapter note or notWhether an operation amounts to repacking or not, is a question to be decided on facts. However, activity such as simply transferring the material from one container to another container may not be categorised under the scope of this description. The goods are packed either for wholesale or for retail sale. Generally the expression "Packing" is considered as package containing a prepacked commodity and the quantity of product contained therein is also pre-determined. The packing is also generally done without the purchaser being present. The packages also contain information such as name of the manufacturer, quantity, value and other details of the product8. The decision of the learned Tribunal in Ammonia Supply Company (supra) has attained finality as the Department had not challenged the same9. Having read the relevant part of Note 10 of Chapter 28 of the Tariff Act, the reasoning adopted by the learned Tribunal in Ammonia Supply Company (supra) and the contents of the Circular dated 08.10.1997, we are of the view, that the conclusion of the learned Tribunal, as above, does not suffer from any infirmity which would require our interference11. From the manufacturing activity undertaken by the Assessee, as found by the learned Commissioner himself, and as extracted above, the Assessee apart from packing pure Argon and Nitrogen in smaller cylinders is also engaged in the activity of mixing of inert gases (like argon, nitrogen, helium etc.) with other gases like oxygen, nitrogen, carbon dioxide and making available such combination to the consumers in smaller cylinders. Whether such mixing of the gases in question amount to manufacture has been gone into by the learned Tribunal in Goyal Gases (P) Ltd. v. CCE, Meerut 2000 (115) ELT 467 (Tribunal). Paragraph 11 of the report in Goyal Gases (P) Ltd. (supra) being relevant may be extracted below:Appellants M/s. Goyal Gases (P) Ltd. have stated that they had been initially supplying various gases like liquid Nitrogen, liquid Argon, Hydrogen, Helium, etc. separately but subsequently, on demand from customers they had started supply of such gases in one cylinder as this was considered more economical to the customer as also convenient and time saving. The mixing of oxygen was with inert gases viz., crypton, helium, neon etc. which did not chemically react with each other. Since the mixture was with inert gases like argon, crypton, etc. which did not react chemically with each other, the inert gases remain separate even though kept in the same container. There was no lending or borrowing of any electron by either of the gases and the gases remained individually identified. The individual gases also retained their properties and were separately identifiable while in use. For example, when the mixture of argon and nitrogen is used in the manufacture of electric lamp, the argon gas performs the function of making the illumination. The Nitrogen gas gives long life to the filament of the bulb. Similarly, when the mixture of argon and carbondioxide is used in welding, the argon gas creates an inert atmosphere while the carbon dioxide gas stops oxidization of the material. Thus the individual gases retained their individual properties even when filled in the same cylinder. With the advent of modern techniques and the facility of filling two or more gases in one cylinder, the customers found them more economical to handle the gases and it saved labour. Further it was not necessary for the customer to mix these gases individually in a desired ratio, since such an exercise was more risky and needs expert technical handling. The question is whether in such circumstances the mixture of two or more gases in one cylinder amounted to manufacture in terms of Section 2(f) of the Central Excise Act....... The decision of the Tribunal in Goyal Gases (P) Ltd. (supra) to the effect that such activity (mixing of gases) did not amount to manufacture has been affirmed by this Court by its order dated 03.04.2000 reported in Commissioner of Central Excise v. Goyal Gases (P) Ltd. 2000 (119) E.L.T. 5 (S.C.) which is in the following terms:The Tribunal has categorically held that no evidence was led by the Department to controvert the Assessees case that no new product with distinct usage and marketability had been produced. Even so, it is contended that the Tribunal failed to appreciate that by the mixing of four more gases a totally different product with distinct use and marketability was produced. We find, having heard the learned Additional Solicitor General, that there is, in fact, no evidence led by the Department to establish that case. The reliance upon the order of the Commissioner would appear to be misplaced because the Commissioners ipse dixit carries the matter no further.. While it may be correct that in Goyal Gases (P) Ltd. (supra), the scope and effect of Note 10 of Chapter 28 of the Tariff Act was not specifically under consideration, nonetheless, the conclusion of the learned Tribunal, affirmed by this Court, to the effect that the mixture of an inert gas with oxygen, witrogen etc. does not result in creation of a new commodity, marketable as such, would be relevant insofar as the second limb of Note 10 of Chapter 28 of the Tariff Act is concerned. The finding in Goyal Gases (P) Ltd. (supra) that notwithstanding the mixing, the gases retained their individual properties even after being filled up in the same cylinder would clearly demonstrate that a new marketable product does not come into existence by the process of mixing. In this regard, the fact that the two items constituting the mixture are also separately marketable would be relevant in determining the applicability of the second part of Note 10 of Chapter 28 of the Tariff Act to the present case14. If that be so, we do not see as to how on the findings recorded by the learned Commissioner with regard to the "manufacturing process" and the data laid before us as well as the ratio of decision in Goyal Gases (P) Ltd. (supra), a view can be taken that the second part of the requirement stipulated by Note 10 of Chapter 28 of the Tariff Act is attracted in the present case and any new marketable product/item comes in existence by the process of mixture of gases in question15. The reliance placed by the Appellant-Revenue on the decision of this Court in Air Liquide North India Private Limited v. Commissioner of Central Excise (2011) 15 SCC 264 does not assist the Revenue in any manner. In the said case, neither the adjudicating authority nor this Court had the benefit of the details of the manufacturing process inasmuch as the same was kept away from the Court by the Assessee by contending the same to be a "trade-secret"In the light of the above, we do not see how the decision of this Court in Air Liquide North India Private Limited (supra) can assist the revenue in bringing home the point urged before us in the appeals under consideration. | 0 | 2,697 | 1,498 | ### Instruction:
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illumination. The Nitrogen gas gives long life to the filament of the bulb. Similarly, when the mixture of argon and carbondioxide is used in welding, the argon gas creates an inert atmosphere while the carbon dioxide gas stops oxidization of the material. Thus the individual gases retained their individual properties even when filled in the same cylinder. With the advent of modern techniques and the facility of filling two or more gases in one cylinder, the customers found them more economical to handle the gases and it saved labour. Further it was not necessary for the customer to mix these gases individually in a desired ratio, since such an exercise was more risky and needs expert technical handling. The question is whether in such circumstances the mixture of two or more gases in one cylinder amounted to manufacture in terms of Section 2(f) of the Central Excise Act......12. The decision of the Tribunal in Goyal Gases (P) Ltd. (supra) to the effect that such activity (mixing of gases) did not amount to manufacture has been affirmed by this Court by its order dated 03.04.2000 reported in Commissioner of Central Excise v. Goyal Gases (P) Ltd. 2000 (119) E.L.T. 5 (S.C.) which is in the following terms:The Tribunal has categorically held that no evidence was led by the Department to controvert the Assessees case that no new product with distinct usage and marketability had been produced. Even so, it is contended that the Tribunal failed to appreciate that by the mixing of four more gases a totally different product with distinct use and marketability was produced. We find, having heard the learned Additional Solicitor General, that there is, in fact, no evidence led by the Department to establish that case. The reliance upon the order of the Commissioner would appear to be misplaced because the Commissioners ipse dixit carries the matter no further.13. While it may be correct that in Goyal Gases (P) Ltd. (supra), the scope and effect of Note 10 of Chapter 28 of the Tariff Act was not specifically under consideration, nonetheless, the conclusion of the learned Tribunal, affirmed by this Court, to the effect that the mixture of an inert gas with oxygen, witrogen etc. does not result in creation of a new commodity, marketable as such, would be relevant insofar as the second limb of Note 10 of Chapter 28 of the Tariff Act is concerned. The finding in Goyal Gases (P) Ltd. (supra) that notwithstanding the mixing, the gases retained their individual properties even after being filled up in the same cylinder would clearly demonstrate that a new marketable product does not come into existence by the process of mixing. In this regard, the fact that the two items constituting the mixture are also separately marketable would be relevant in determining the applicability of the second part of Note 10 of Chapter 28 of the Tariff Act to the present case.14. If that be so, we do not see as to how on the findings recorded by the learned Commissioner with regard to the "manufacturing process" and the data laid before us as well as the ratio of decision in Goyal Gases (P) Ltd. (supra), a view can be taken that the second part of the requirement stipulated by Note 10 of Chapter 28 of the Tariff Act is attracted in the present case and any new marketable product/item comes in existence by the process of mixture of gases in question.15. The reliance placed by the Appellant-Revenue on the decision of this Court in Air Liquide North India Private Limited v. Commissioner of Central Excise (2011) 15 SCC 264 does not assist the Revenue in any manner. In the said case, neither the adjudicating authority nor this Court had the benefit of the details of the manufacturing process inasmuch as the same was kept away from the Court by the Assessee by contending the same to be a "trade-secret". In these circumstances, this Court in coming to its conclusion that the process deployed amounted to manufacture within the meaning of Note 10 of Chapter 28 of the Tariff Act relied on certain other features of the case, details of which have been set out in para 16 of the judgment, which may be noticed below:The only conclusion from the above is that the tests and the "process" conducted by the Appellant would amount to "treatment" in terms of Chapter Note 10 of Chapter 28 of the Tariff Act of the Act. The fact that the gas was not sold as such is further established from the fact that the gas, after the tests and treatment, was sold at a profit of 40% to 60%. if it was really being sold as such, then the customers of the Appellants could have purchased the same from the Appellants suppliers. When this question was put to the officer of the Appellant, he could not offer any cogent answer but merely stated that it was the customers preference. Further, he did not give proper answer as to how the profit margin was so high. The Appellant had supplied the gas not as such and the under the grade and style of the original manufacturer but under its own grade and standard. Further, while selling the gas, different cylinders were given separate certificates with regard to the pressure, moisture, purification and quality of the gas. This explains the high price at which the Appellant was selling the gas. Therefore, in our opinion, the Tribunal has rightly observed that if no treatment was given to the gas purchased by the Appellant, the customers of the Appellant would not have been purchasing helium from the Appellant at a price 40% to 60% above the price at which the Appellant was purchasing.16. In the light of the above, we do not see how the decision of this Court in Air Liquide North India Private Limited (supra) can assist the revenue in bringing home the point urged before us in the appeals under consideration.
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that the conclusion of the learned Tribunal, as above, does not suffer from any infirmity which would require our interference11. From the manufacturing activity undertaken by the Assessee, as found by the learned Commissioner himself, and as extracted above, the Assessee apart from packing pure Argon and Nitrogen in smaller cylinders is also engaged in the activity of mixing of inert gases (like argon, nitrogen, helium etc.) with other gases like oxygen, nitrogen, carbon dioxide and making available such combination to the consumers in smaller cylinders. Whether such mixing of the gases in question amount to manufacture has been gone into by the learned Tribunal in Goyal Gases (P) Ltd. v. CCE, Meerut 2000 (115) ELT 467 (Tribunal). Paragraph 11 of the report in Goyal Gases (P) Ltd. (supra) being relevant may be extracted below:Appellants M/s. Goyal Gases (P) Ltd. have stated that they had been initially supplying various gases like liquid Nitrogen, liquid Argon, Hydrogen, Helium, etc. separately but subsequently, on demand from customers they had started supply of such gases in one cylinder as this was considered more economical to the customer as also convenient and time saving. The mixing of oxygen was with inert gases viz., crypton, helium, neon etc. which did not chemically react with each other. Since the mixture was with inert gases like argon, crypton, etc. which did not react chemically with each other, the inert gases remain separate even though kept in the same container. There was no lending or borrowing of any electron by either of the gases and the gases remained individually identified. The individual gases also retained their properties and were separately identifiable while in use. For example, when the mixture of argon and nitrogen is used in the manufacture of electric lamp, the argon gas performs the function of making the illumination. The Nitrogen gas gives long life to the filament of the bulb. Similarly, when the mixture of argon and carbondioxide is used in welding, the argon gas creates an inert atmosphere while the carbon dioxide gas stops oxidization of the material. Thus the individual gases retained their individual properties even when filled in the same cylinder. With the advent of modern techniques and the facility of filling two or more gases in one cylinder, the customers found them more economical to handle the gases and it saved labour. Further it was not necessary for the customer to mix these gases individually in a desired ratio, since such an exercise was more risky and needs expert technical handling. The question is whether in such circumstances the mixture of two or more gases in one cylinder amounted to manufacture in terms of Section 2(f) of the Central Excise Act....... The decision of the Tribunal in Goyal Gases (P) Ltd. (supra) to the effect that such activity (mixing of gases) did not amount to manufacture has been affirmed by this Court by its order dated 03.04.2000 reported in Commissioner of Central Excise v. Goyal Gases (P) Ltd. 2000 (119) E.L.T. 5 (S.C.) which is in the following terms:The Tribunal has categorically held that no evidence was led by the Department to controvert the Assessees case that no new product with distinct usage and marketability had been produced. Even so, it is contended that the Tribunal failed to appreciate that by the mixing of four more gases a totally different product with distinct use and marketability was produced. We find, having heard the learned Additional Solicitor General, that there is, in fact, no evidence led by the Department to establish that case. The reliance upon the order of the Commissioner would appear to be misplaced because the Commissioners ipse dixit carries the matter no further.. While it may be correct that in Goyal Gases (P) Ltd. (supra), the scope and effect of Note 10 of Chapter 28 of the Tariff Act was not specifically under consideration, nonetheless, the conclusion of the learned Tribunal, affirmed by this Court, to the effect that the mixture of an inert gas with oxygen, witrogen etc. does not result in creation of a new commodity, marketable as such, would be relevant insofar as the second limb of Note 10 of Chapter 28 of the Tariff Act is concerned. The finding in Goyal Gases (P) Ltd. (supra) that notwithstanding the mixing, the gases retained their individual properties even after being filled up in the same cylinder would clearly demonstrate that a new marketable product does not come into existence by the process of mixing. In this regard, the fact that the two items constituting the mixture are also separately marketable would be relevant in determining the applicability of the second part of Note 10 of Chapter 28 of the Tariff Act to the present case14. If that be so, we do not see as to how on the findings recorded by the learned Commissioner with regard to the "manufacturing process" and the data laid before us as well as the ratio of decision in Goyal Gases (P) Ltd. (supra), a view can be taken that the second part of the requirement stipulated by Note 10 of Chapter 28 of the Tariff Act is attracted in the present case and any new marketable product/item comes in existence by the process of mixture of gases in question15. The reliance placed by the Appellant-Revenue on the decision of this Court in Air Liquide North India Private Limited v. Commissioner of Central Excise (2011) 15 SCC 264 does not assist the Revenue in any manner. In the said case, neither the adjudicating authority nor this Court had the benefit of the details of the manufacturing process inasmuch as the same was kept away from the Court by the Assessee by contending the same to be a "trade-secret"In the light of the above, we do not see how the decision of this Court in Air Liquide North India Private Limited (supra) can assist the revenue in bringing home the point urged before us in the appeals under consideration.
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State Of Punjab & Ors Vs. M/S. Tara Chand Lajpat Rai | from October 16, 1951which fell within the fourth quarter of the year in question . He also filed another writ petition for a similar relief in respect of that year. The contention was that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer, the proceedings commence from the date of the registration certificate within which he has a statutory obligation to furnish his returns. This Court held that assessment proceedings under the Act must be held to be pending from the time they are initiated until they are terminated by a final order of assessment. It was then stated that in the case of a registered dealer there would be four variations in the matter of assessment of his turnover; (1) he submits a return by the slate prescribed and pays the tax due in terms of the said return, the Commissioner accepts the correctness of the return and appropriates the amount paid towards the tax due for the period covered by the return: (2) the Commissioner is not satisfied with the correctness of the return, he issues a notice to him under S. 11(2), but does not finalise the assessment: (3) the registered dealer does not submit- a return, the Commissioner issues a notice under S. 10(3) and S. 11(4) of the Act, and (4) the registered dealer does not submit any return for any period and the Commissioner issues a notice to him beyond three years. The Court held that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under S. 10(3) or under S. 11 (2) of the Act. Since the proceedings commenced after the return was submitted and continued till a final order of assessment was made in regard to the return, the Tribunal had no jurisdiction to issue a notice under S. 11-A with respect to the quarters other than that covered by the return made by the appellant. As regards the second case it held that the Commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter. At page 450, the Court observed that in a case where a return has been made, but the commissioner has not accepted it and has issued a notice for enquiry, the assessment proceedings would be pending till the final assessment is made. Even in a case where no return has been made, but the Commissioner initiates proceedings by issuing the notice either under S. 10(3) or under S. 114), the proceedings would be pending till the final assessment is made. But where no return has been made and the Commissioner has not issued any notice under the Act, it cannot be held that any proceedings are pending before the Commissioner. In the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a notice is issued and no question of limitation would arise where such proceedings are taken before the expiry of the prescribed period though an assessment order is finalised after the expiry of such period. This decision is, therefore, a clear authority for the proposition that assessment proceedings commence in the case of a registered dealer either when he furnishes a return of when a notice is issued to him under S. 11(2) of the present Act, and that if such proceedings are taken within the prescribed time though the assessment is finalised subsequently even after the expiry of the prescribed period, no question of limitation would arise. 11. In the instant case the dealer filed returns. Though they were filed after the expiry of 30 days from the relevant date, they were not rejected by the department on that ground. In fact the notice dated January 11, 1957 issued under S. 11(2) was on the footing that returns were filed, but the Assessing Authority was not satisfied with them and desired evidence to establish that the returns were full and complete. It is also an admitted fact that the dealer appeared and produced books of accounts in answer to the sad notice and thereupon the Officer held an enquiry. The notice dated January 11, 1957 was within time though the assessment order was made much after the expiry of three years from the respective dates when the returns had to be respective dates when the returns had to be filed. But on the authority of Ghanshyam Dass case, (1964) 4 SCR 436 : (AIR 1964 SC 766 ) (supra), the assessment proceedings commenced either when the respondent firm filed the returns or in any event from the date of the said notice. Both the events, therefore, were within prescribed time. 12. Reliance, however, was placed on two decisions of the High Court of Punjab, (1963) 65 Pun LR 768 : (AIR1964 Punj 1 (FB)) (supra) and Jagat Ram Om Prakash v. Excise and Taxation Officer, Assessing Authority, Amritsar, (1965) 16 STC 107 : (AIR 1965 Punj 133 (FB)). Neither of these decisions would be of assistance as the question which was canvassed in Ghanshyam Dass case (1964) 4 SCR 436 : (AIR 1964 SC 766 ) (supra ) regarding assessment proceedings having commenced within time and then remaining pending did not come up for consideration. Since the said notice dated January 11, 1957 was served on the respondent firm before the expiry of three years from the respective dates for furnishing the returns, the assessment proceedings must be held to have commenced from that date which was within time and thus the assessment proceedings remained pending until they were terminated by the assessment order. Though that order was finalised after the expiry of three years from the said period, it could not be attacked on the ground of its being beyond limitation and therefore without jurisdiction. The order passed by the High Court allowing the respondents writ petition has, therefore, to be set aside. | 1[ds]5. For the reasons which we shall presently set out, the question whether the assessment order was passed under S. 11 (3) or S. 11(4) or (5) does not need any answer as it makes no difference so far as this case is concerned whether it was made under one or the other sub-section. However, the mere fact that the Assessing Authority mentioned that he made the order on the best judgment basis cannot be conclusive, for, merely calling it as the best judgment assessment, the order does not become oneThis decision is, therefore, a clear authority for the proposition that assessment proceedings commence in the case of a registered dealer either when he furnishes a return of when a notice is issued to him under S. 11(2) of the present Act, and that if such proceedings are taken within the prescribed time though the assessment is finalised subsequently even after the expiry of the prescribed period, no question of limitation would arise11. In the instant case the dealer filed returns. Though they were filed after the expiry of 30 days from the relevant date, they were not rejected by the department on that ground. In fact the notice dated January 11, 1957 issued under S. 11(2) was on the footing that returns were filed, but the Assessing Authority was not satisfied with them and desired evidence to establish that the returns were full and complete. It is also an admitted fact that the dealer appeared and produced books of accounts in answer to the sad notice and thereupon the Officer held an enquiry. The notice dated January 11, 1957 was within time though the assessment order was made much after the expiry of three years from the respective dates when the returns had to be respective dates when the returns had to be filed. But on the authority of Ghanshyam Dass case, (1964) 4 SCR 436 : (AIR 1964 SC 766 ) (supra), the assessment proceedings commenced either when the respondent firm filed the returns or in any event from the date of the said notice. Both the events, therefore, were within prescribed timeNeither of these decisions would be of assistance as the question which was canvassed in Ghanshyam Dass case (1964) 4 SCR 436 : (AIR 1964 SC 766 ) (supra ) regarding assessment proceedings having commenced within time and then remaining pending did not come up for consideration. Since the said notice dated January 11, 1957 was served on the respondent firm before the expiry of three years from the respective dates for furnishing the returns, the assessment proceedings must be held to have commenced from that date which was within time and thus the assessment proceedings remained pending until they were terminated by the assessment order. Though that order was finalised after the expiry of three years from the said period, it could not be attacked on the ground of its being beyond limitation and therefore without jurisdiction. The order passed by the High Court allowing the respondents writ petition has, therefore, to be set asideSo far asn (4) is concerned the question as to when .an assessment order thereunder becomes barred arose in Madan Lal Arora v. Excise and Taxation Officer Amritsar. (1962) 1 SCR 823. (AIR 1961 SC 1565 ). The petitioner. a registered dealer, filed his returns for the four quarters of the financial year ending on March 31, 1955, and likewise, for the four quarters of the financial year ending on March 31, 1956. In respect of each year the Sales Tax Assessing Authority .served three successive notices on him on March 7,1958, April 4,1958 and August 18, 1959, requiring him to attend with the documents and other evidence in support of his returns. It was, however only in the last of the said notices that he stated that on failure to produce the documents and other evidence mentioned therein, the case would be decided on `best judgment assessment basis". The petitioner did not comply with any of the notices, but on receiving the last notice he filed a writ petition in this Court challenging the right of the Authority to make the best judgment assessment. Sarkar, J. (as he then was) who spoke for the Court, posing the question as how to compute the three years mentioned inn (4) observed:"Then says within three years after the expiry of such period. So the three years have to be counted from the expiry of the period mentioned. What then is that period? The period referred, therefore, is the period, mentioned earlier in the, and that is the period in respect of which returns had been furnished by the dealer".After considering S. 11(1) and Rule 20 of the Rules, he further observed:"It would, therefore. appear that whenn (4) of S. 11 talks of "returns in respect of a period," that refers in the case of the petitioner to the quarters in respect of which he submitted the returns. We then come to this that the three years within which the authority could proceed to make the best judgment assessment had to be counted from the end of each quarter in respect of which returns had been filed".The Court held that the last of the quarters in respect of which the petitioner filed his returns having ended on March 31,1956 the Assessing, Authority could not proceed to make the best judgment assessment in respect of that quarter after March 31, 1959. In the case of the earlier quarters the three years had expired even prior to that date. There was no dispute that the Assessing Officer had not proceeded to make any assessment on the petitioner at the date of any of the notices. The notices given on August 18, 1959 that best judgment assessment would be made in. respect of the quarters constituting the financial years 1955 and 1956 the last of which expired on March 31, 1956 were futile as no suck assessment could be made in respect of any of the quarters after March 31, 1959. The question as to the effect of the two earlier notices was not canvassed. What this decision laid down was that the notice dated August 18, 1959 under which the authority proposed to proceed under Section 11(4) having been served after expiry of three years from the respective dates when the said returns had to be furnished, the notice was futile and the authority not having proceeded to assess within time any action taken by him would be without jurisdiction10. The question as to the legal effect of such a notice was considered in Ghanshyam Das v. Regional Asst. Commr. of Sales Tax, .Nagpur, (1964) 4 SCR 436 : (AIR 1964 SC 766 ). The points which fell for determination there were: (1) when can a proceeding be said to commence and (2) if a proceeding has commenced within the prescribed period but is pending when such period expires and an order is finalised thereafter, whether such an order is invalid on the ground of its being. The appellant there was a registered dealer. For the year0 he submitted only one return for one quarter and defaulted in respect of the other quarters. A notice was served on him on August 13, 1954 under S. 11 (1) and (2) of the C. P. and Berar Sales Tax Act, 1947 in respect of the turnover of the firm for the said period. He filed the returns subsequently but contended that the proceedings before the Sales Tax Commissioner were barred by time. He then filed a writ petition in the High Court challenging the said proceedings. For the year, he had filed no returns at all and was served with a notice on October 15,1954 under S. 11(4) of the Act. That notice was within three years from October 16, 1951which fell within the fourth quarter of the year in question . He also filed another writ petition for a similar relief in respect of that year. The contention was that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer, the proceedings commence from the date of the registration certificate within which he has a statutory obligation to furnish his returns. This Court held that assessment proceedings under the Act must be held to be pending from the time they are initiated until they are terminated by a final order of assessment. It was then stated that in the case of a registered dealer there would be four variations in the matter of assessment of his turnover; (1) he submits a return by the slate prescribed and pays the tax due in terms of the said return, the Commissioner accepts the correctness of the return and appropriates the amount paid towards the tax due for the period covered by the return: (2) the Commissioner is not satisfied with the correctness of the return, he issues a notice to him under S. 11(2), but does not finalise the assessment: (3) the registered dealer does not submita return, the Commissioner issues a notice under S. 10(3) and S. 11(4) of the Act, and (4) the registered dealer does not submit any return for any period and the Commissioner issues a notice to him beyond three years. The Court held that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under S. 10(3) or under S. 11 (2) of the Act. Since the proceedings commenced after the return was submitted and continued till a final order of assessment was made in regard to the return, the Tribunal had no jurisdiction to issue a notice under S.A with respect to the quarters other than that covered by the return made by the appellant. As regards the second case it held that the Commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter. At page 450, the Court observed that in a case where a return has been made, but the commissioner has not accepted it and has issued a notice for enquiry, the assessment proceedings would be pending till the final assessment is made. Even in a case where no return has been made, but the Commissioner initiates proceedings by issuing the notice either under S. 10(3) or under S. 114), the proceedings would be pending till the final assessment is made. But where no return has been made and the Commissioner has not issued any notice under the Act, it cannot be held that any proceedings are pending before the Commissioner. In the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a notice is issued and no question of limitation would arise where such proceedings are taken before the expiry of the prescribed period though an assessment order is finalised after the expiry of such period. | 1 | 4,216 | 2,054 | ### 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:
from October 16, 1951which fell within the fourth quarter of the year in question . He also filed another writ petition for a similar relief in respect of that year. The contention was that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer, the proceedings commence from the date of the registration certificate within which he has a statutory obligation to furnish his returns. This Court held that assessment proceedings under the Act must be held to be pending from the time they are initiated until they are terminated by a final order of assessment. It was then stated that in the case of a registered dealer there would be four variations in the matter of assessment of his turnover; (1) he submits a return by the slate prescribed and pays the tax due in terms of the said return, the Commissioner accepts the correctness of the return and appropriates the amount paid towards the tax due for the period covered by the return: (2) the Commissioner is not satisfied with the correctness of the return, he issues a notice to him under S. 11(2), but does not finalise the assessment: (3) the registered dealer does not submit- a return, the Commissioner issues a notice under S. 10(3) and S. 11(4) of the Act, and (4) the registered dealer does not submit any return for any period and the Commissioner issues a notice to him beyond three years. The Court held that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under S. 10(3) or under S. 11 (2) of the Act. Since the proceedings commenced after the return was submitted and continued till a final order of assessment was made in regard to the return, the Tribunal had no jurisdiction to issue a notice under S. 11-A with respect to the quarters other than that covered by the return made by the appellant. As regards the second case it held that the Commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter. At page 450, the Court observed that in a case where a return has been made, but the commissioner has not accepted it and has issued a notice for enquiry, the assessment proceedings would be pending till the final assessment is made. Even in a case where no return has been made, but the Commissioner initiates proceedings by issuing the notice either under S. 10(3) or under S. 114), the proceedings would be pending till the final assessment is made. But where no return has been made and the Commissioner has not issued any notice under the Act, it cannot be held that any proceedings are pending before the Commissioner. In the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a notice is issued and no question of limitation would arise where such proceedings are taken before the expiry of the prescribed period though an assessment order is finalised after the expiry of such period. This decision is, therefore, a clear authority for the proposition that assessment proceedings commence in the case of a registered dealer either when he furnishes a return of when a notice is issued to him under S. 11(2) of the present Act, and that if such proceedings are taken within the prescribed time though the assessment is finalised subsequently even after the expiry of the prescribed period, no question of limitation would arise. 11. In the instant case the dealer filed returns. Though they were filed after the expiry of 30 days from the relevant date, they were not rejected by the department on that ground. In fact the notice dated January 11, 1957 issued under S. 11(2) was on the footing that returns were filed, but the Assessing Authority was not satisfied with them and desired evidence to establish that the returns were full and complete. It is also an admitted fact that the dealer appeared and produced books of accounts in answer to the sad notice and thereupon the Officer held an enquiry. The notice dated January 11, 1957 was within time though the assessment order was made much after the expiry of three years from the respective dates when the returns had to be respective dates when the returns had to be filed. But on the authority of Ghanshyam Dass case, (1964) 4 SCR 436 : (AIR 1964 SC 766 ) (supra), the assessment proceedings commenced either when the respondent firm filed the returns or in any event from the date of the said notice. Both the events, therefore, were within prescribed time. 12. Reliance, however, was placed on two decisions of the High Court of Punjab, (1963) 65 Pun LR 768 : (AIR1964 Punj 1 (FB)) (supra) and Jagat Ram Om Prakash v. Excise and Taxation Officer, Assessing Authority, Amritsar, (1965) 16 STC 107 : (AIR 1965 Punj 133 (FB)). Neither of these decisions would be of assistance as the question which was canvassed in Ghanshyam Dass case (1964) 4 SCR 436 : (AIR 1964 SC 766 ) (supra ) regarding assessment proceedings having commenced within time and then remaining pending did not come up for consideration. Since the said notice dated January 11, 1957 was served on the respondent firm before the expiry of three years from the respective dates for furnishing the returns, the assessment proceedings must be held to have commenced from that date which was within time and thus the assessment proceedings remained pending until they were terminated by the assessment order. Though that order was finalised after the expiry of three years from the said period, it could not be attacked on the ground of its being beyond limitation and therefore without jurisdiction. The order passed by the High Court allowing the respondents writ petition has, therefore, to be set aside.
### Response:
1
### Explanation:
that the three years within which the authority could proceed to make the best judgment assessment had to be counted from the end of each quarter in respect of which returns had been filed".The Court held that the last of the quarters in respect of which the petitioner filed his returns having ended on March 31,1956 the Assessing, Authority could not proceed to make the best judgment assessment in respect of that quarter after March 31, 1959. In the case of the earlier quarters the three years had expired even prior to that date. There was no dispute that the Assessing Officer had not proceeded to make any assessment on the petitioner at the date of any of the notices. The notices given on August 18, 1959 that best judgment assessment would be made in. respect of the quarters constituting the financial years 1955 and 1956 the last of which expired on March 31, 1956 were futile as no suck assessment could be made in respect of any of the quarters after March 31, 1959. The question as to the effect of the two earlier notices was not canvassed. What this decision laid down was that the notice dated August 18, 1959 under which the authority proposed to proceed under Section 11(4) having been served after expiry of three years from the respective dates when the said returns had to be furnished, the notice was futile and the authority not having proceeded to assess within time any action taken by him would be without jurisdiction10. The question as to the legal effect of such a notice was considered in Ghanshyam Das v. Regional Asst. Commr. of Sales Tax, .Nagpur, (1964) 4 SCR 436 : (AIR 1964 SC 766 ). The points which fell for determination there were: (1) when can a proceeding be said to commence and (2) if a proceeding has commenced within the prescribed period but is pending when such period expires and an order is finalised thereafter, whether such an order is invalid on the ground of its being. The appellant there was a registered dealer. For the year0 he submitted only one return for one quarter and defaulted in respect of the other quarters. A notice was served on him on August 13, 1954 under S. 11 (1) and (2) of the C. P. and Berar Sales Tax Act, 1947 in respect of the turnover of the firm for the said period. He filed the returns subsequently but contended that the proceedings before the Sales Tax Commissioner were barred by time. He then filed a writ petition in the High Court challenging the said proceedings. For the year, he had filed no returns at all and was served with a notice on October 15,1954 under S. 11(4) of the Act. That notice was within three years from October 16, 1951which fell within the fourth quarter of the year in question . He also filed another writ petition for a similar relief in respect of that year. The contention was that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer, the proceedings commence from the date of the registration certificate within which he has a statutory obligation to furnish his returns. This Court held that assessment proceedings under the Act must be held to be pending from the time they are initiated until they are terminated by a final order of assessment. It was then stated that in the case of a registered dealer there would be four variations in the matter of assessment of his turnover; (1) he submits a return by the slate prescribed and pays the tax due in terms of the said return, the Commissioner accepts the correctness of the return and appropriates the amount paid towards the tax due for the period covered by the return: (2) the Commissioner is not satisfied with the correctness of the return, he issues a notice to him under S. 11(2), but does not finalise the assessment: (3) the registered dealer does not submita return, the Commissioner issues a notice under S. 10(3) and S. 11(4) of the Act, and (4) the registered dealer does not submit any return for any period and the Commissioner issues a notice to him beyond three years. The Court held that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under S. 10(3) or under S. 11 (2) of the Act. Since the proceedings commenced after the return was submitted and continued till a final order of assessment was made in regard to the return, the Tribunal had no jurisdiction to issue a notice under S.A with respect to the quarters other than that covered by the return made by the appellant. As regards the second case it held that the Commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter. At page 450, the Court observed that in a case where a return has been made, but the commissioner has not accepted it and has issued a notice for enquiry, the assessment proceedings would be pending till the final assessment is made. Even in a case where no return has been made, but the Commissioner initiates proceedings by issuing the notice either under S. 10(3) or under S. 114), the proceedings would be pending till the final assessment is made. But where no return has been made and the Commissioner has not issued any notice under the Act, it cannot be held that any proceedings are pending before the Commissioner. In the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a notice is issued and no question of limitation would arise where such proceedings are taken before the expiry of the prescribed period though an assessment order is finalised after the expiry of such period.
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Bihar State Board Of Religious Trust Vs. Palat Lall And Another | right thereafter. The whole of the arrangement shows that the further looking after of the Thakurji was to be the concern of the family, and it was only under the nomination of the family that a particular person of the Vaishavanava belief was to be incharge after the demise of the members of the family who were to become the mutawallis after the death of the testator. It is obvious that in this family there was no male issue and, therefore, there was nobody to carry on worship and make arrangements for the seba-puja of the Thakurji, as had been done in the family. Some other kind of arrangement had to be made and this arrangement was made by the will. No more can be read into it than what is said there.8. Now, if it was intended that this should have been a public endowment, it is quite obvious that when the testator died, the testator would have thought of somebody from the public instead of the ladies who could not carry on the puja except through others. It was after his own death and his wives and sister were not available that a particular person was to be chosen for the seba-puja. There is no arrangement here that public were to look after or manage the Thakurji At no stage any intervention of the public is either intended or allowed by the will in question.9. Two other documents were brought to our notice, but they may be disposed of summarily. The first is a mortgage deed, ext, B, in which there is a recital about the property which was the subject of the endowment. But that document is silent about the nature of the endowment and is of no significance. The other document is a judgment of the Assistant Commissioner of Agricultural Income-tax, ext. C, in which exemption was claimed in regard to income as we as set apart for charitable and religious trusts in terms of the trust deed. This is an attempt to show that the family regarded it as a public trust. What a person does with a view to claim exemption from income-tax or for that matter, agricultural income-tax, is not decisive of the nature of the endowment. The nature of the endowment is to be discovered only from the tenor of the document by which the endowment is created, the dealings of the public and the conduct and habits of the people who visit such a temple or Thakur Dwara. The claim to exemption was with a view to saving some income of the endowed property. It might have been motivated from other considerations and not that it was a public endowment.10. This brings us to the second case which was cited before us. But even in that case, a reference was made by the learned Judges to the earlier case and they have extracted a passage from the earlier judgment, in which it was observed that"when property is dedicated for the worship of a family idol, is it a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual then the endowment can only be regarded as public, intended to benefit the general body of worshippers".11. In the present case, the idol was a family idol and the worshippers had all along been the members of the family. Indeed, the evidence is overwhelming on that score. The learned trial Judge mentions that very important and leading persons gave evidence in that behalf. In the judgment of the trial judge, a list is given which includes P. Ws. 3, 7, 12, 14, 15 and 16 of village Kusmari. In addition there are P. W. 17 who is an advocate of Sitamarhi, P. W. 6 who is a respectable witness, being a chemist, P. W. 8 who is also a pleader, and P. Ws 11 and 13 who are mokhtears and acquainted with Somari Kuer. These respectable persons had occasion to know the family of Chaudhury Lal Behari Singh, and therefore, were competent to speak on the fact that Shri Ram Janakiji were the family deities of Chaudhary Lal Behari Singh. In the case to which we were presently referring, the circumstances connected with the establishment of the temple were such that they could be only consonant with a public endowment. It was no doubt a private temple of which the sole proprietor was one Madrasi Swamij, but he, however, by the execution of the deed, decided to open the temple to the public. He was a man with no family and could not have installed the deity for the members of his family. It was pointed out in that case that the deed was of such a recent date that evidence of sub-sequent conduct would not alter nature of the endowment as determined from the deed and that the decision was on a question of fact. Even if we were to treat it as a question of law because whether the trust is public or private, partakes of both fact and law, and we are satisfied in the present case the evidence is entirely one-sided. There is not one circumstance to show that the endowment was public endowment, and this being the case, we do not see any reasons to differ from the decision already arrived at.12. On the whole, we have not been able to discover any reason why we should depart from the unanimous opinion of the High Court and the Court below. Both the Courts are agreed that the oral evidence as well as the documents indicate only a private trust and that there is nothing to show that the endowment enjoyed a public character at any time. The cases before this Court, which were cited earlier are easily distinguishable. | 0[ds]11. In the present case, the idol was a family idol and the worshippers had all along been the members of the family. Indeed, the evidence is overwhelming on that score. The learned trial Judge mentions that very important and leading persons gave evidence in that behalf. In the judgment of the trial judge, a list is given which includes P. Ws. 3, 7, 12, 14, 15 and 16 of village Kusmari. In addition there are P. W. 17 who is an advocate of Sitamarhi, P. W. 6 who is a respectable witness, being a chemist, P. W. 8 who is also a pleader, and P. Ws 11 and 13 who are mokhtears and acquainted with Somari Kuer. These respectable persons had occasion to know the family of Chaudhury Lal Behari Singh, and therefore, were competent to speak on the fact that Shri Ram Janakiji were the family deities of Chaudhary Lal Behari Singh. In the case to which we were presently referring, the circumstances connected with the establishment of the temple were such that they could be only consonant with a public endowment. It was no doubt a private temple of which the sole proprietor was one Madrasi Swamij, but he, however, by the execution of the deed, decided to open the temple to the public. He was a man with no family and could not have installed the deity for the members of his family. It was pointed out in that case that the deed was of such a recent date that evidence of sub-sequent conduct would not alter nature of the endowment as determined from the deed and that the decision was on a question of fact. Even if we were to treat it as a question of law because whether the trust is public or private, partakes of both fact and law, and we are satisfied in the present case the evidence is entirely one-sided. There is not one circumstance to show that the endowment was public endowment, and this being the case, we do not see any reasons to differ from the decision already arrived at.12. On the whole, we have not been able to discover any reason why we should depart from the unanimous opinion of the High Court and the Court below. Both the Courts are agreed that the oral evidence as well as the documents indicate only a private trust and that there is nothing to show that the endowment enjoyed a public character at any time. The cases before this Court, which were cited earlier are easily distinguishable.In that case, emphasis was laid on two matters and they are decisive of the case we have here. The first no doubt was that the dedicator in that case had no male issue, and that it would be unusual for a person to tie up the property for the use of a deity without creating a public trust, but the second was that a ceremony of pratishtha (installation of the idol), which was equivalent to utsarg (dedication), was performed and, therefore, the idol itself became a public idol after the ceremonies. This is not the case here where an idol had existed from before as a family idol. In the earlier case of this Court the installation of the idol and the dedication were both done at the same time, and the installation was public. This, in our opinion, was a very cardinal fact in that case. This was emphasized not only by the trial Judge but also by the learned Judges of the High Court. The facts here are that the idol had been in the family for a number of years and only the family was doing thein the Thakur Dwara, and there is no mention any where that the public ever looked after this idol and were allowed a share in the worship as of right. Further, by the will also the author of the dedication did not make it clear that the public were to be admitted as of right thereafter. The whole of the arrangement shows that the further looking after of the Thakurji was to be the concern of the family, and it was only under the nomination of the family that a particular person of the Vaishavanava belief was to be incharge after the demise of the members of the family who were to become the mutawallis after the death of the testator. It is obvious that in this family there was no male issue and, therefore, there was nobody to carry on worship and make arrangements for theof the Thakurji, as had been done in the family. Some other kind of arrangement had to be made and this arrangement was made by the will. No more can be read into it than what is said there. | 0 | 2,686 | 877 | ### 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:
right thereafter. The whole of the arrangement shows that the further looking after of the Thakurji was to be the concern of the family, and it was only under the nomination of the family that a particular person of the Vaishavanava belief was to be incharge after the demise of the members of the family who were to become the mutawallis after the death of the testator. It is obvious that in this family there was no male issue and, therefore, there was nobody to carry on worship and make arrangements for the seba-puja of the Thakurji, as had been done in the family. Some other kind of arrangement had to be made and this arrangement was made by the will. No more can be read into it than what is said there.8. Now, if it was intended that this should have been a public endowment, it is quite obvious that when the testator died, the testator would have thought of somebody from the public instead of the ladies who could not carry on the puja except through others. It was after his own death and his wives and sister were not available that a particular person was to be chosen for the seba-puja. There is no arrangement here that public were to look after or manage the Thakurji At no stage any intervention of the public is either intended or allowed by the will in question.9. Two other documents were brought to our notice, but they may be disposed of summarily. The first is a mortgage deed, ext, B, in which there is a recital about the property which was the subject of the endowment. But that document is silent about the nature of the endowment and is of no significance. The other document is a judgment of the Assistant Commissioner of Agricultural Income-tax, ext. C, in which exemption was claimed in regard to income as we as set apart for charitable and religious trusts in terms of the trust deed. This is an attempt to show that the family regarded it as a public trust. What a person does with a view to claim exemption from income-tax or for that matter, agricultural income-tax, is not decisive of the nature of the endowment. The nature of the endowment is to be discovered only from the tenor of the document by which the endowment is created, the dealings of the public and the conduct and habits of the people who visit such a temple or Thakur Dwara. The claim to exemption was with a view to saving some income of the endowed property. It might have been motivated from other considerations and not that it was a public endowment.10. This brings us to the second case which was cited before us. But even in that case, a reference was made by the learned Judges to the earlier case and they have extracted a passage from the earlier judgment, in which it was observed that"when property is dedicated for the worship of a family idol, is it a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual then the endowment can only be regarded as public, intended to benefit the general body of worshippers".11. In the present case, the idol was a family idol and the worshippers had all along been the members of the family. Indeed, the evidence is overwhelming on that score. The learned trial Judge mentions that very important and leading persons gave evidence in that behalf. In the judgment of the trial judge, a list is given which includes P. Ws. 3, 7, 12, 14, 15 and 16 of village Kusmari. In addition there are P. W. 17 who is an advocate of Sitamarhi, P. W. 6 who is a respectable witness, being a chemist, P. W. 8 who is also a pleader, and P. Ws 11 and 13 who are mokhtears and acquainted with Somari Kuer. These respectable persons had occasion to know the family of Chaudhury Lal Behari Singh, and therefore, were competent to speak on the fact that Shri Ram Janakiji were the family deities of Chaudhary Lal Behari Singh. In the case to which we were presently referring, the circumstances connected with the establishment of the temple were such that they could be only consonant with a public endowment. It was no doubt a private temple of which the sole proprietor was one Madrasi Swamij, but he, however, by the execution of the deed, decided to open the temple to the public. He was a man with no family and could not have installed the deity for the members of his family. It was pointed out in that case that the deed was of such a recent date that evidence of sub-sequent conduct would not alter nature of the endowment as determined from the deed and that the decision was on a question of fact. Even if we were to treat it as a question of law because whether the trust is public or private, partakes of both fact and law, and we are satisfied in the present case the evidence is entirely one-sided. There is not one circumstance to show that the endowment was public endowment, and this being the case, we do not see any reasons to differ from the decision already arrived at.12. On the whole, we have not been able to discover any reason why we should depart from the unanimous opinion of the High Court and the Court below. Both the Courts are agreed that the oral evidence as well as the documents indicate only a private trust and that there is nothing to show that the endowment enjoyed a public character at any time. The cases before this Court, which were cited earlier are easily distinguishable.
### Response:
0
### Explanation:
11. In the present case, the idol was a family idol and the worshippers had all along been the members of the family. Indeed, the evidence is overwhelming on that score. The learned trial Judge mentions that very important and leading persons gave evidence in that behalf. In the judgment of the trial judge, a list is given which includes P. Ws. 3, 7, 12, 14, 15 and 16 of village Kusmari. In addition there are P. W. 17 who is an advocate of Sitamarhi, P. W. 6 who is a respectable witness, being a chemist, P. W. 8 who is also a pleader, and P. Ws 11 and 13 who are mokhtears and acquainted with Somari Kuer. These respectable persons had occasion to know the family of Chaudhury Lal Behari Singh, and therefore, were competent to speak on the fact that Shri Ram Janakiji were the family deities of Chaudhary Lal Behari Singh. In the case to which we were presently referring, the circumstances connected with the establishment of the temple were such that they could be only consonant with a public endowment. It was no doubt a private temple of which the sole proprietor was one Madrasi Swamij, but he, however, by the execution of the deed, decided to open the temple to the public. He was a man with no family and could not have installed the deity for the members of his family. It was pointed out in that case that the deed was of such a recent date that evidence of sub-sequent conduct would not alter nature of the endowment as determined from the deed and that the decision was on a question of fact. Even if we were to treat it as a question of law because whether the trust is public or private, partakes of both fact and law, and we are satisfied in the present case the evidence is entirely one-sided. There is not one circumstance to show that the endowment was public endowment, and this being the case, we do not see any reasons to differ from the decision already arrived at.12. On the whole, we have not been able to discover any reason why we should depart from the unanimous opinion of the High Court and the Court below. Both the Courts are agreed that the oral evidence as well as the documents indicate only a private trust and that there is nothing to show that the endowment enjoyed a public character at any time. The cases before this Court, which were cited earlier are easily distinguishable.In that case, emphasis was laid on two matters and they are decisive of the case we have here. The first no doubt was that the dedicator in that case had no male issue, and that it would be unusual for a person to tie up the property for the use of a deity without creating a public trust, but the second was that a ceremony of pratishtha (installation of the idol), which was equivalent to utsarg (dedication), was performed and, therefore, the idol itself became a public idol after the ceremonies. This is not the case here where an idol had existed from before as a family idol. In the earlier case of this Court the installation of the idol and the dedication were both done at the same time, and the installation was public. This, in our opinion, was a very cardinal fact in that case. This was emphasized not only by the trial Judge but also by the learned Judges of the High Court. The facts here are that the idol had been in the family for a number of years and only the family was doing thein the Thakur Dwara, and there is no mention any where that the public ever looked after this idol and were allowed a share in the worship as of right. Further, by the will also the author of the dedication did not make it clear that the public were to be admitted as of right thereafter. The whole of the arrangement shows that the further looking after of the Thakurji was to be the concern of the family, and it was only under the nomination of the family that a particular person of the Vaishavanava belief was to be incharge after the demise of the members of the family who were to become the mutawallis after the death of the testator. It is obvious that in this family there was no male issue and, therefore, there was nobody to carry on worship and make arrangements for theof the Thakurji, as had been done in the family. Some other kind of arrangement had to be made and this arrangement was made by the will. No more can be read into it than what is said there.
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UNION OF INDIA & ANR Vs. S. NARASIMHULU NAIDU (DEAD) THROUGH LRS. AND ORS | suit property by claiming exclusive title. The trial court in the said suit held that the deceased-K. Ethirajan cannot be held to be in possession of the suit property as a mere licensee of the deceased-M. Gurunathan. He was held to be in possession of the suit property as owner since 1940 as evidenced by various documents of possession filed by him and the joint patta granted by the authorities under the Act of 1948. The trial court also held that deceased-K. Ethirajan having remained in continuous possession of the suit property as owner had perfected his title by remaining in adverse possession for more than the statutory period of 12 years. 40. K. Ethirajan (plaintiff in the second suit), claimed partition of the land based on joint patta granted to the Plaintiff and the deceased-defendant M. Gurunathan. It is on the basis of this joint patta, the suit for partition filed by the plaintiff was decreed by the trial court as well as by the First Appellate Court. This Court found that the issue directly and substantially involved in the first suit was to claim exclusive ownership of deceased-M. Gurunathan to the whole property left behind by deceased-Gangammal, although eviction was sought of the defendant from a particular portion of the land on which he had built a hut for residence. The claim of ownership over the entire property was specially raised in the first suit. The findings in para 20 were returned in these circumstances. It was thus in this background, this Court held that the principle of res judicata would apply as in the previous suit, the assertion was in respect of whole property but possession was sought from a smaller area. The judgment is clearly not applicable in the present case as the title over the land in question before the Tribunal is distinct from the land which was the subject matter in the first suit. The first suit was only in respect of the land purchased by the Plaintiff and not the entire land, though his claim was based on sale by the father of the applicants. 41. Now, the second question as to whether the appellants have proved their title over the land in question is examined. The appellants claim title over the land in question. Since the land is transferred from the State, document of title is not required to be registered in terms of Section 17 of the Registration Act, 1908 and/or in terms of Government Grants Act, 1895. The area of Asafnagar lines is 378 acres 16 guntas. In the appendix to the letter dated 10.10.1956, the details of the land comprising in the area measuring 378 acres 16 guntas is mentioned, which includes 2 acres 20 guntas of Miniature Rifle Range. Such land is reflected as in a Mallapally Area. The total area of Mallapally area and Asafnagar Lines is 378 acres and 16 guntas. The Mallapalli Lines is non-ISF Lines measuring 450 acres and 12 guntas which is distinct from Asafnagar Lines falling in ISF area measuring 378 acres and 16 guntas. Thus, Mallapally area and Mallapalli Lines are two different parcels of the land. The land in question herein is part of Asafnagar Lines handed over to the appellants as ISF Lines. The letter dated 19.3.1958 completes the transfer when the possession of land measuring 1500 acres and 24 guntas was handed over to the Union. 42. The appellants claim to be in possession over the land measuring 1500 acres and 24 guntas from the year 1958. Although, the appellants have lost claim in respect of land measuring 4971.5 sq. yards which is falling as part of 2 acres and 20 guntas of land, but that would not lead to losing of the title of the appellants over the entire land measuring 2 acres and 20 guntas. 43. Therefore, by virtue of the provisions of Government Grants Act, 1895 read with Section 17(2)(vii) of the Registration Act, 1908, transfer of land to the appellant is complete. The appellant is the owner of the aforesaid land. The applicants have not produced any document regarding the patta in favour of Shaik Ahmed. They have not proved the title of their vendor so as to claim a rightful title over the land in question. Further, no patta could be granted to the applicants as the land was transferred by the State in their favour on 19.3.1958 and possession was claimed on the strength of sale deeds executed on 12.12.1959. 44. Apart from the fact that the transfer of title in favour of the Union is complete when the possession was delivered, but even thereafter, the military land register and general land register produced by the appellants show the possession of the appellants over such land. The military land register and general land register are public documents within the meaning of Section 74 of the Indian Evidence Act, 1872 (Evidence Act) containing the records of the acts of the sovereign authority i.e., the Union as well as official body. Still further, Section 114 of the Evidence Act grants presumption of correctness being an official act having been regularly performed. Therefore, in the absence of any evidence to show that such records were not maintained properly, the official record containing entries of ownership and possession would carry the presumption of correctness. In view of the transfer of land on 10.10.1956 followed by delivery of possession on 19.3.1958 and continuous assertion of possession thereof, it leads to the unequivocal finding that appellants are owners and in possession of the suit land. 45. The third question is to examine whether the appellants are land grabbers and the Tribunal has jurisdiction to entertain a petition under the Act. The objection of the appellants that they are not land grabbers and that the State Legislature will have no jurisdiction over the property of the Union need not to be examined in view of the finding that the appellants are in fact owners of the land in question. | 1[ds]25. The applicants have claimed possession from the appellants primarily on the ground that in the suit filed by the plaintiffs on 14.4.1965, the basis of the suit was purchase of land by the plaintiffs from the father of the applicants. Since the plaintiffs have been found to be the owners on the basis of purchase of land from the father of the applicants, therefore, the issue of title decided in the said suit would operate as res judicata. Therefore, the appellants herein are land grabbers having no title over the land in question. It may be reiterated that the plaintiffs had purchased land measuring 4971.5 sq. yards from the father of the applicants whereas the remaining land measuring 7128.5 sq. yards was retained by the applicants. Therefore, the decree in the first suit was only in respect of the schedule property in the first suit i.e. 4971.5 sq. yards. The patta, the basis of title of the applicants had not been produced in evidence before the Tribunal. Thus, the basic document of title had not been produced.26. In the first suit, the father of the applicants had not filed any counter claim to assert title or possession over the land in question. The land admeasuring 4971.5 sq. yards was a schedule property and the subject matter of the first suit. The issue no. 1 in the first suit was in respect of the possession of the plaintiffs and their predecessor-in-interest over the suit land within 12 years prior to the suit. Therefore, the rights of the plaintiffs were examined in respect of such suit land measuring 4971.5 sq. yards alone, although, to return the finding on possession and title, possession of the father of the applicants over the land purchased by the Plaintiff was clubbed together on the basis of patta claimed to be granted to Shaik Ahmed, though not produced or proved on record.27. In the second suit filed by the applicants, the entire basis of suit was the findings returned in the first suit. There is no independent evidence produced in respect of purchase of land by Shaik Ahmed and the legality or validity of Patta issued to him. Although, applicants have asserted that they have been visiting the land in question to verify their possession but apart from such plea, there is no evidence that there was any covert and overt act on the part of the plaintiffs to assert possession over the land in question.28. In fact, the appellants had entered into a settlement with the plaintiffs by which some of the land in possession was given to the decree holder in execution with the leave of the Court on 19.8.1995. Such action would show the assertion of title by the appellants so as to enter into exchange of land in satisfaction of the decree. The father of the applicants was party in the execution proceedings but has not objected to the exchange. It necessarily leads to an inference that the father of the applicants was not in possession and has not asserted the title or possession over the remaining land measuring 7128.5 sq. yards. On the other hand, the appellants have categorically asserted that they are in possession of the land from the date of transfer in the year 1958 when the Collector of Hyderabad handed over the possession to them. The appellants continued to be in unhanded possession over the last 30 years.30. The plea of res judicata is generally raised against the plaintiffs who would be the applicants before the Tribunal. This Court in a judgment reported as Alka Gupta v. Narender Kumar Gupta (2010) 10 SCC 141 held that the plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. This Court has culled down the essential requirements to be fulfilled to apply the bar of res judicata to any suit or issue. It has been observed as under:20. Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In this case, there was no plea of constructive res judicata, nor had the appellant-plaintiff an opportunity to meet the case based on such plea.21. Res judicata means a thing adjudicated, that is, an issue that is finally settled by judicial decision. The Code deals with res judicata in Section 11, relevant portion of which is extracted below (excluding Explanations I to VIII):11. Res judicata.— xxxx xxxx22. Section 11 of the Code, on an analysis requires the following essential requirements to be fulfilled, to apply the bar of res judicata to any suit or issue:(i) The matter must be directly and substantially in issue in the former suit and in the later suit.(ii) The prior suit should be between the same parties or persons claiming under them.(iii) Parties should have litigated under the same title in the earlier suit.(iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit.(v) The court trying the former suit must have been competent to try the particular issue in question.In the first suit, the defendant had the opportunity to raise a claim in respect of land measuring 7128.5 sq. yards. However, no such claim was raised. In view of Section 11, Explanation IV CPC, the applicants might and ought to have made grounds of defence in the former suit to claim possession of the land measuring 7128.5 sq. yards. The consequence would be that failure to raise such defence or counter claim would be deemed to be constructive res judicata in terms of Explanation IV of Section 11 CPC. Reference may be made to judgment of this Court reported as Ramadhar Shrivas v. Bhagwandas (2005) 13 SCC 1 . This court was examining a situation where in a suit for possession, the defendant Bhagwandas was found to be the tenant of the original owner Hiralal and after a subsequent purchase, he had become tenant of Ramadhar. The first suit was dismissed on the ground that suit for possession was not maintainable against Bhagwandas being tenant. In another suit filed by the purchaser, the defendant denied the title of plaintiff, though such was not the plea in the first suit. In these circumstances, the Court held as under:23. In the case on hand, it is clear that in the earlier suit, the court had recorded a clear finding that the defendant Bhagwandas was neither the owner of the property nor could he show any right as to how he was occupying such property except as a tenant of Hiralal. If Bhagwandas was claiming to be in lawful possession in any capacity other than a tenant, he ought to have put forward such claim as a ground of defence in those proceedings. He ought to have put forward such claim under Explanation IV to Section 11 of the Code but he had failed to do so. The doctrine of constructive res judicata engrafted in Explanation IV to Section 11 of the Code thus applies to the facts of the case and the defendant in the present suit cannot take a contention which ought to have been taken by him in the previous suit and was not taken by him. Explanation IV to Section 11 of the Code is clearly attracted and the defendant Bhagwandas can be prevented from taking such contention in the present proceedings.34. The issue as to whether there can be res judicata between co- defendants was first examined by the Privy Council in a judgment reported as Munni Bibi (since deceased) & Anr. v. Tirloki Nath & Ors. AIR 1931 PC 114 . The three principles of res judicata as between co-defendants were delineated as: (1) There must be a conflict of interest between the defendants; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; (3) the question between the defendants must have been finally decided. This test too is not satisfied as in order to grant relief of possession to the plaintiffs in the first suit, it was not necessary to decide the issue of the remaining land between the father of the applicants and the appellants. The said principle was reiterated by this Court in a judgment reported as Mahboob Sahab v. Syed Ismail and Others (1995) 3 SCC 693 wherein it has been held as under:8. Under these circumstances the question emerges whether the High Court was right in reversing the appellate decree on the doctrine of res judicata. At this juncture it may be relevant to mention that the trial court negatived the plea of res judicata as a preliminary issue. Though it was open to sustain the trial court decree on the basis of the doctrine of res judicata, it was not argued before the appellate court on its basis. Thereby the findings of the trial court that the decree in OS No. 3/1/1951 does not operate as res judicata became final. The question then is whether the doctrine of res judicata stands attracted to the facts in this case. It is true that under Section 11 CPC when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claimed, litigating under the same title, the decree in the former suit would be res judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants…36. The applicants have not claimed any title to the land which is claimed to be in their possession and the subject matter of the first suit was only 4971.5 sq. yards. Hence, the decree in the said suit is binding qua the land in suit only.37. Though the first suit is between the same parties, but the subject matter is not the same. For res judicata to apply, the matter in the former suit must have been alleged by one party and either denied or admitted, expressly or impliedly by the other. Since the issue in the suit was restricted to 4971.5 sq. yards, the decree would be binding qua to that extent only. The issue cannot be said to be barred by constructive res judicata as per Explanation IV as it applies to the plaintiff in a later suit. The appellants have denied the claim of the plaintiffs in the first suit to the extent that it was the subject matter of that suit alone. Therefore, the decree in the first suit will not operate as res judicata in the subsequent matters.38. The reliance of Mr. Rao on the judgment of this Court in K. Ethirajan is not tenable. In fact, such judgment has been made the basis of the impugned orders as well. The reliance is on para 20 of the judgment, which reads as under:20. The argument that principle of res judicata cannot apply because in the previous suit only a part of the property was involved when in the subsequent suit the whole property is the subject-matter cannot be accepted. The principle of res judicata under Section 11 of the Civil Procedure Code is attracted where issues directly and substantially involved between the same parties in the previous and subsequent suit are the same - may be - in the previous suit only a part of the property was involved when in the subsequent suit, the whole property is the subject-matter.39. The said paragraph cannot be read in isolation. The facts on the basis of which judgment is given are required to be kept in view to have an understanding of the background in which such observation has been recorded. One line or paragraph cannot be picked up without going through the facts and the nature of suit. In the first suit, deceased- M. Gurunathan sought eviction of deceased-K. Ethirajan, (plaintiff in the second suit), from a portion of the suit property by claiming exclusive title. The trial court in the said suit held that the deceased-K. Ethirajan cannot be held to be in possession of the suit property as a mere licensee of the deceased-M. Gurunathan. He was held to be in possession of the suit property as owner since 1940 as evidenced by various documents of possession filed by him and the joint patta granted by the authorities under the Act of 1948. The trial court also held that deceased-K. Ethirajan having remained in continuous possession of the suit property as owner had perfected his title by remaining in adverse possession for more than the statutory period of 12 years.40. K. Ethirajan (plaintiff in the second suit), claimed partition of the land based on joint patta granted to the Plaintiff and the deceased-defendant M. Gurunathan. It is on the basis of this joint patta, the suit for partition filed by the plaintiff was decreed by the trial court as well as by the First Appellate Court. This Court found that the issue directly and substantially involved in the first suit was to claim exclusive ownership of deceased-M. Gurunathan to the whole property left behind by deceased-Gangammal, although eviction was sought of the defendant from a particular portion of the land on which he had built a hut for residence. The claim of ownership over the entire property was specially raised in the first suit. The findings in para 20 were returned in these circumstances. It was thus in this background, this Court held that the principle of res judicata would apply as in the previous suit, the assertion was in respect of whole property but possession was sought from a smaller area. The judgment is clearly not applicable in the present case as the title over the land in question before the Tribunal is distinct from the land which was the subject matter in the first suit. The first suit was only in respect of the land purchased by the Plaintiff and not the entire land, though his claim was based on sale by the father of the applicants.The appellants claim title over the land in question. Since the land is transferred from the State, document of title is not required to be registered in terms of Section 17 of the Registration Act, 1908 and/or in terms of Government Grants Act, 1895. The area of Asafnagar lines is 378 acres 16 guntas. In the appendix to the letter dated 10.10.1956, the details of the land comprising in the area measuring 378 acres 16 guntas is mentioned, which includes 2 acres 20 guntas of. Such land is reflected as in a Mallapally Area. The total area of Mallapally area and Asafnagar Lines is 378 acres and 16 guntas. The Mallapalli Lines is non-ISF Lines measuring 450 acres and 12 guntas which is distinct from Asafnagar Lines falling in ISF area measuring 378 acres and 16 guntas. Thus, Mallapally area and Mallapalli Lines are two different parcels of the land. The land in question herein is part of Asafnagar Lines handed over to the appellants as ISF Lines. The letter dated 19.3.1958 completes the transfer when the possession of land measuring 1500 acres and 24 guntas was handed over to the Union.42. The appellants claim to be in possession over the land measuring 1500 acres and 24 guntas from the year 1958. Although, the appellants have lost claim in respect of land measuring 4971.5 sq. yards which is falling as part of 2 acres and 20 guntas of land, but that would not lead to losing of the title of the appellants over the entire land measuring 2 acres and 20 guntas.43. Therefore, by virtue of the provisions of Government Grants Act, 1895 read with Section 17(2)(vii) of the Registration Act, 1908, transfer of land to the appellant is complete. The appellant is the owner of the aforesaid land. The applicants have not produced any document regarding the patta in favour of Shaik Ahmed. They have not proved the title of their vendor so as to claim a rightful title over the land in question. Further, no patta could be granted to the applicants as the land was transferred by the State in their favour on 19.3.1958 and possession was claimed on the strength of sale deeds executed on 12.12.1959.44. Apart from the fact that the transfer of title in favour of the Union is complete when the possession was delivered, but even thereafter, the military land register and general land register produced by the appellants show the possession of the appellants over such land. The military land register and general land register are public documents within the meaning of Section 74 of the Indian Evidence Act, 1872 (Evidence Act) containing the records of the acts of the sovereign authority i.e., the Union as well as official body. Still further, Section 114 of the Evidence Act grants presumption of correctness being an official act having been regularly performed. Therefore, in the absence of any evidence to show that such records were not maintained properly, the official record containing entries of ownership and possession would carry the presumption of correctness. In view of the transfer of land on 10.10.1956 followed by delivery of possession on 19.3.1958 and continuous assertion of possession thereof, it leads to the unequivocal finding that appellants are owners and in possession of the suit land.The objection of the appellants that they are not land grabbers and that the State Legislature will have no jurisdiction over the property of the Union need not to be examined in view of the finding that the appellants are in fact owners of the land in question. | 1 | 13,362 | 3,249 | ### Instruction:
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suit property by claiming exclusive title. The trial court in the said suit held that the deceased-K. Ethirajan cannot be held to be in possession of the suit property as a mere licensee of the deceased-M. Gurunathan. He was held to be in possession of the suit property as owner since 1940 as evidenced by various documents of possession filed by him and the joint patta granted by the authorities under the Act of 1948. The trial court also held that deceased-K. Ethirajan having remained in continuous possession of the suit property as owner had perfected his title by remaining in adverse possession for more than the statutory period of 12 years. 40. K. Ethirajan (plaintiff in the second suit), claimed partition of the land based on joint patta granted to the Plaintiff and the deceased-defendant M. Gurunathan. It is on the basis of this joint patta, the suit for partition filed by the plaintiff was decreed by the trial court as well as by the First Appellate Court. This Court found that the issue directly and substantially involved in the first suit was to claim exclusive ownership of deceased-M. Gurunathan to the whole property left behind by deceased-Gangammal, although eviction was sought of the defendant from a particular portion of the land on which he had built a hut for residence. The claim of ownership over the entire property was specially raised in the first suit. The findings in para 20 were returned in these circumstances. It was thus in this background, this Court held that the principle of res judicata would apply as in the previous suit, the assertion was in respect of whole property but possession was sought from a smaller area. The judgment is clearly not applicable in the present case as the title over the land in question before the Tribunal is distinct from the land which was the subject matter in the first suit. The first suit was only in respect of the land purchased by the Plaintiff and not the entire land, though his claim was based on sale by the father of the applicants. 41. Now, the second question as to whether the appellants have proved their title over the land in question is examined. The appellants claim title over the land in question. Since the land is transferred from the State, document of title is not required to be registered in terms of Section 17 of the Registration Act, 1908 and/or in terms of Government Grants Act, 1895. The area of Asafnagar lines is 378 acres 16 guntas. In the appendix to the letter dated 10.10.1956, the details of the land comprising in the area measuring 378 acres 16 guntas is mentioned, which includes 2 acres 20 guntas of Miniature Rifle Range. Such land is reflected as in a Mallapally Area. The total area of Mallapally area and Asafnagar Lines is 378 acres and 16 guntas. The Mallapalli Lines is non-ISF Lines measuring 450 acres and 12 guntas which is distinct from Asafnagar Lines falling in ISF area measuring 378 acres and 16 guntas. Thus, Mallapally area and Mallapalli Lines are two different parcels of the land. The land in question herein is part of Asafnagar Lines handed over to the appellants as ISF Lines. The letter dated 19.3.1958 completes the transfer when the possession of land measuring 1500 acres and 24 guntas was handed over to the Union. 42. The appellants claim to be in possession over the land measuring 1500 acres and 24 guntas from the year 1958. Although, the appellants have lost claim in respect of land measuring 4971.5 sq. yards which is falling as part of 2 acres and 20 guntas of land, but that would not lead to losing of the title of the appellants over the entire land measuring 2 acres and 20 guntas. 43. Therefore, by virtue of the provisions of Government Grants Act, 1895 read with Section 17(2)(vii) of the Registration Act, 1908, transfer of land to the appellant is complete. The appellant is the owner of the aforesaid land. The applicants have not produced any document regarding the patta in favour of Shaik Ahmed. They have not proved the title of their vendor so as to claim a rightful title over the land in question. Further, no patta could be granted to the applicants as the land was transferred by the State in their favour on 19.3.1958 and possession was claimed on the strength of sale deeds executed on 12.12.1959. 44. Apart from the fact that the transfer of title in favour of the Union is complete when the possession was delivered, but even thereafter, the military land register and general land register produced by the appellants show the possession of the appellants over such land. The military land register and general land register are public documents within the meaning of Section 74 of the Indian Evidence Act, 1872 (Evidence Act) containing the records of the acts of the sovereign authority i.e., the Union as well as official body. Still further, Section 114 of the Evidence Act grants presumption of correctness being an official act having been regularly performed. Therefore, in the absence of any evidence to show that such records were not maintained properly, the official record containing entries of ownership and possession would carry the presumption of correctness. In view of the transfer of land on 10.10.1956 followed by delivery of possession on 19.3.1958 and continuous assertion of possession thereof, it leads to the unequivocal finding that appellants are owners and in possession of the suit land. 45. The third question is to examine whether the appellants are land grabbers and the Tribunal has jurisdiction to entertain a petition under the Act. The objection of the appellants that they are not land grabbers and that the State Legislature will have no jurisdiction over the property of the Union need not to be examined in view of the finding that the appellants are in fact owners of the land in question.
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view to have an understanding of the background in which such observation has been recorded. One line or paragraph cannot be picked up without going through the facts and the nature of suit. In the first suit, deceased- M. Gurunathan sought eviction of deceased-K. Ethirajan, (plaintiff in the second suit), from a portion of the suit property by claiming exclusive title. The trial court in the said suit held that the deceased-K. Ethirajan cannot be held to be in possession of the suit property as a mere licensee of the deceased-M. Gurunathan. He was held to be in possession of the suit property as owner since 1940 as evidenced by various documents of possession filed by him and the joint patta granted by the authorities under the Act of 1948. The trial court also held that deceased-K. Ethirajan having remained in continuous possession of the suit property as owner had perfected his title by remaining in adverse possession for more than the statutory period of 12 years.40. K. Ethirajan (plaintiff in the second suit), claimed partition of the land based on joint patta granted to the Plaintiff and the deceased-defendant M. Gurunathan. It is on the basis of this joint patta, the suit for partition filed by the plaintiff was decreed by the trial court as well as by the First Appellate Court. This Court found that the issue directly and substantially involved in the first suit was to claim exclusive ownership of deceased-M. Gurunathan to the whole property left behind by deceased-Gangammal, although eviction was sought of the defendant from a particular portion of the land on which he had built a hut for residence. The claim of ownership over the entire property was specially raised in the first suit. The findings in para 20 were returned in these circumstances. It was thus in this background, this Court held that the principle of res judicata would apply as in the previous suit, the assertion was in respect of whole property but possession was sought from a smaller area. The judgment is clearly not applicable in the present case as the title over the land in question before the Tribunal is distinct from the land which was the subject matter in the first suit. The first suit was only in respect of the land purchased by the Plaintiff and not the entire land, though his claim was based on sale by the father of the applicants.The appellants claim title over the land in question. Since the land is transferred from the State, document of title is not required to be registered in terms of Section 17 of the Registration Act, 1908 and/or in terms of Government Grants Act, 1895. The area of Asafnagar lines is 378 acres 16 guntas. In the appendix to the letter dated 10.10.1956, the details of the land comprising in the area measuring 378 acres 16 guntas is mentioned, which includes 2 acres 20 guntas of. Such land is reflected as in a Mallapally Area. The total area of Mallapally area and Asafnagar Lines is 378 acres and 16 guntas. The Mallapalli Lines is non-ISF Lines measuring 450 acres and 12 guntas which is distinct from Asafnagar Lines falling in ISF area measuring 378 acres and 16 guntas. Thus, Mallapally area and Mallapalli Lines are two different parcels of the land. The land in question herein is part of Asafnagar Lines handed over to the appellants as ISF Lines. The letter dated 19.3.1958 completes the transfer when the possession of land measuring 1500 acres and 24 guntas was handed over to the Union.42. The appellants claim to be in possession over the land measuring 1500 acres and 24 guntas from the year 1958. Although, the appellants have lost claim in respect of land measuring 4971.5 sq. yards which is falling as part of 2 acres and 20 guntas of land, but that would not lead to losing of the title of the appellants over the entire land measuring 2 acres and 20 guntas.43. Therefore, by virtue of the provisions of Government Grants Act, 1895 read with Section 17(2)(vii) of the Registration Act, 1908, transfer of land to the appellant is complete. The appellant is the owner of the aforesaid land. The applicants have not produced any document regarding the patta in favour of Shaik Ahmed. They have not proved the title of their vendor so as to claim a rightful title over the land in question. Further, no patta could be granted to the applicants as the land was transferred by the State in their favour on 19.3.1958 and possession was claimed on the strength of sale deeds executed on 12.12.1959.44. Apart from the fact that the transfer of title in favour of the Union is complete when the possession was delivered, but even thereafter, the military land register and general land register produced by the appellants show the possession of the appellants over such land. The military land register and general land register are public documents within the meaning of Section 74 of the Indian Evidence Act, 1872 (Evidence Act) containing the records of the acts of the sovereign authority i.e., the Union as well as official body. Still further, Section 114 of the Evidence Act grants presumption of correctness being an official act having been regularly performed. Therefore, in the absence of any evidence to show that such records were not maintained properly, the official record containing entries of ownership and possession would carry the presumption of correctness. In view of the transfer of land on 10.10.1956 followed by delivery of possession on 19.3.1958 and continuous assertion of possession thereof, it leads to the unequivocal finding that appellants are owners and in possession of the suit land.The objection of the appellants that they are not land grabbers and that the State Legislature will have no jurisdiction over the property of the Union need not to be examined in view of the finding that the appellants are in fact owners of the land in question.
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THE STATE OF JHARKHAND DEPARTMENT OF HEALTH MEDICINE EDUCATION AND FAMILY WELFARE TRHOUGH THE SECRETARY & ORS Vs. BANARAS PRASAD (DEAD) THROUGH LRS | of a Civil Surgeon-cum-CMO, Giridih, Giridih. It appears from the records that the suspension Order could not be served on him as he disappeared from the scene. Nor did he agitated his suspension or the consequential inaction thereafter as no departmental proceedings were held possibly on account of his having disappeared from the scene. 2. The State of Jharkhand was created out of the erstwhile State of Bihar under the provisions of Bihar Reorganisation Act, 2000 on 01.11.2000 and the State of Jharkhand vide a notification dated published on 22.10.2001 adopted the Bihar Service Code, 1952 w.e.f. 15.11.2000. It appears that thereafter the case of the respondent came into light and vide Order dated 31.1.2003, the Deputy Secretary, Department of Health & Family Welfare, Government of Jharkhand revoked the suspension order dated 15.2.1991 and posted respondent No. 1 as Clerk under Civil Surgeon, Ranchi and issued direction to the Civil Surgeon, Giridih to frame charges and initiate departmental proceedings against the respondent. On account of absence of vacancy of post, vide order dated 31.5.2003, the respondent was posted on the vacant post of Head Clerk under Civil Surgeon, Koderma and the respondent joined on 04.7.2003. 3. It is at the aforesaid stage that the respondent started demanding admissible allowances, benefits and promotion for the period 15.2.1991 till 31.3.2003 inter alia on the grounds that no proceedings have been initiated against him during that period and also claims salary for the period June, 2003 to February, 2004 as per the Last Pay Certificate. On account of the appellant not obliging, Writ Petition (S) No.1097 of 2005 was filed before the High Court of Jharkhand at Ranchi. The learned Single Judge of the High Court allowed the writ petition vide Order 04.9.2012. The order recorded that no departmental proceedings were ever initiated against the petitioner nor he was found guilty for any charge (an aspect undisputedly factually incorrect). After recording submissions, the writ petition was allowed without really recording any reasons other than the fact of absence of departmental proceedings as alleged by the respondent. A review petition was filed by the appellant predicated on a wrong recording of the factum of no departmental proceeding being initiated against the respondent. The review application was, however, dismissed by the Order dated 30.1.2015 merely recording the High Court order recording that factually the absence of departmental proceedings is not correctly noted but only opining that if departmental proceedings had been initiated subsequently they may face their own fate. The respondent assailed the aforesaid orders in LPA No.539 of 2015. This LPA, in the same manner as the Order of the Single Judge was dismissed by a cryptic order dated 09.5.2016 impugned in the present proceedings. 4. We may note that an aspect of delay has been noted here while referring to the fact that the Registry is not able to count the period of delay. However, the fact remains that the order was passed on 04.9.2012 and the review was filed in 2013 which was dismissed on 30.1.2015. Thus, one does not find the aspect of delay of any significance. The operative portion of the High Court order has been reproduced and after that there is a single sentence of dismissal. 5. We may note the most crucial aspect i.e. that the departmental proceedings had culminated in an Order dated 13.5.2015 and that aspect is stated to have been placed before the Division Bench. The respondent was not found guilty of committing irregularities in appointment and misbehavior albeit on account of the relevant records not being found. However, the charge of unauthorized absence from 04.4.1989 to 14.02.1991 and irregular absence from 15.2.1991 to 31.3.2003 (suspension period) continuously for 13 years was proved and the punishment was imposed as under:- (I) Censure (II) No payment shall be made for the period of unauthorized absence from 04.4.1989 to 1.02.1991 according to the principle of No work no pay and this period shall not be taken into account in service for any purpose. (III) Period from 15.02.1991 to 31.3.2003 (suspension period) shall be regularized in such a way according to the provision of rule 97(1)(A)(B) of the Service Code that only subsistence allowance shall be payable for the above period. 6. The aforesaid order has never been assailed by the respondent and the purport of the impugned orders would be to give him the full salary benefits for the complete period of absence, something we cannot countenance. 7. We were initially a little circumspect in respect of the manner in which the State has handled the case of the respondent where he remained under suspension for a long period of time without any departmental proceeding being initiated and the explanation given by the learned counsel for the State of Jharkhand that most of the period was when the Sate of Jharkhand had not been carved out did not appeal to us. However, what appeals to us is the fact that after his suspension the respondent appears to have disappeared from the scene and thus cannot be permitted to take advantage of his absence of the suspension order. We did put a question to the learned counsel for the respondent that did he ever report for work after the suspension order or over this period of time did he ever challenged the same till his suspension was revoked by the State of Jharkhand and there is no answer to the same. 8. It would be absolutely contrary to a service jurisprudence principle if an employee is able to take advantage of his own absence for this period of time. If his grievance was that departmental proceedings were not being initiated despite suspension, he was required to take redressal of his grievances. He did not do so. On the other hand he conveniently remained absent from the same with a result that even the suspension order could not be served on him. That the State of Bihar also did nothing in the matter is another part of the story! | 1[ds]6. The aforesaid order has never been assailed by the respondent and the purport of the impugned orders would be to give him the full salary benefits for the complete period of absence, something we cannot countenance.7. We were initially a little circumspect in respect of the manner in which the State has handled the case of the respondent where he remained under suspension for a long period of time without any departmental proceeding being initiated and the explanation given by the learned counsel for the State of Jharkhand that most of the period was when the Sate of Jharkhand had not been carved out did not appeal to us. However, what appeals to us is the fact that after his suspension the respondent appears to have disappeared from the scene and thus cannot be permitted to take advantage of his absence of the suspension order. We did put a question to the learned counsel for the respondent that did he ever report for work after the suspension order or over this period of time did he ever challenged the same till his suspension was revoked by the State of Jharkhand and there is no answer to the same.8. It would be absolutely contrary to a service jurisprudence principle if an employee is able to take advantage of his own absence for this period of time. If his grievance was that departmental proceedings were not being initiated despite suspension, he was required to take redressal of his grievances. He did not do so. On the other hand he conveniently remained absent from the same with a result that even the suspension order could not be served on him. That the State of Bihar also did nothing in the matter is another part of the story! | 1 | 1,127 | 314 | ### 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:
of a Civil Surgeon-cum-CMO, Giridih, Giridih. It appears from the records that the suspension Order could not be served on him as he disappeared from the scene. Nor did he agitated his suspension or the consequential inaction thereafter as no departmental proceedings were held possibly on account of his having disappeared from the scene. 2. The State of Jharkhand was created out of the erstwhile State of Bihar under the provisions of Bihar Reorganisation Act, 2000 on 01.11.2000 and the State of Jharkhand vide a notification dated published on 22.10.2001 adopted the Bihar Service Code, 1952 w.e.f. 15.11.2000. It appears that thereafter the case of the respondent came into light and vide Order dated 31.1.2003, the Deputy Secretary, Department of Health & Family Welfare, Government of Jharkhand revoked the suspension order dated 15.2.1991 and posted respondent No. 1 as Clerk under Civil Surgeon, Ranchi and issued direction to the Civil Surgeon, Giridih to frame charges and initiate departmental proceedings against the respondent. On account of absence of vacancy of post, vide order dated 31.5.2003, the respondent was posted on the vacant post of Head Clerk under Civil Surgeon, Koderma and the respondent joined on 04.7.2003. 3. It is at the aforesaid stage that the respondent started demanding admissible allowances, benefits and promotion for the period 15.2.1991 till 31.3.2003 inter alia on the grounds that no proceedings have been initiated against him during that period and also claims salary for the period June, 2003 to February, 2004 as per the Last Pay Certificate. On account of the appellant not obliging, Writ Petition (S) No.1097 of 2005 was filed before the High Court of Jharkhand at Ranchi. The learned Single Judge of the High Court allowed the writ petition vide Order 04.9.2012. The order recorded that no departmental proceedings were ever initiated against the petitioner nor he was found guilty for any charge (an aspect undisputedly factually incorrect). After recording submissions, the writ petition was allowed without really recording any reasons other than the fact of absence of departmental proceedings as alleged by the respondent. A review petition was filed by the appellant predicated on a wrong recording of the factum of no departmental proceeding being initiated against the respondent. The review application was, however, dismissed by the Order dated 30.1.2015 merely recording the High Court order recording that factually the absence of departmental proceedings is not correctly noted but only opining that if departmental proceedings had been initiated subsequently they may face their own fate. The respondent assailed the aforesaid orders in LPA No.539 of 2015. This LPA, in the same manner as the Order of the Single Judge was dismissed by a cryptic order dated 09.5.2016 impugned in the present proceedings. 4. We may note that an aspect of delay has been noted here while referring to the fact that the Registry is not able to count the period of delay. However, the fact remains that the order was passed on 04.9.2012 and the review was filed in 2013 which was dismissed on 30.1.2015. Thus, one does not find the aspect of delay of any significance. The operative portion of the High Court order has been reproduced and after that there is a single sentence of dismissal. 5. We may note the most crucial aspect i.e. that the departmental proceedings had culminated in an Order dated 13.5.2015 and that aspect is stated to have been placed before the Division Bench. The respondent was not found guilty of committing irregularities in appointment and misbehavior albeit on account of the relevant records not being found. However, the charge of unauthorized absence from 04.4.1989 to 14.02.1991 and irregular absence from 15.2.1991 to 31.3.2003 (suspension period) continuously for 13 years was proved and the punishment was imposed as under:- (I) Censure (II) No payment shall be made for the period of unauthorized absence from 04.4.1989 to 1.02.1991 according to the principle of No work no pay and this period shall not be taken into account in service for any purpose. (III) Period from 15.02.1991 to 31.3.2003 (suspension period) shall be regularized in such a way according to the provision of rule 97(1)(A)(B) of the Service Code that only subsistence allowance shall be payable for the above period. 6. The aforesaid order has never been assailed by the respondent and the purport of the impugned orders would be to give him the full salary benefits for the complete period of absence, something we cannot countenance. 7. We were initially a little circumspect in respect of the manner in which the State has handled the case of the respondent where he remained under suspension for a long period of time without any departmental proceeding being initiated and the explanation given by the learned counsel for the State of Jharkhand that most of the period was when the Sate of Jharkhand had not been carved out did not appeal to us. However, what appeals to us is the fact that after his suspension the respondent appears to have disappeared from the scene and thus cannot be permitted to take advantage of his absence of the suspension order. We did put a question to the learned counsel for the respondent that did he ever report for work after the suspension order or over this period of time did he ever challenged the same till his suspension was revoked by the State of Jharkhand and there is no answer to the same. 8. It would be absolutely contrary to a service jurisprudence principle if an employee is able to take advantage of his own absence for this period of time. If his grievance was that departmental proceedings were not being initiated despite suspension, he was required to take redressal of his grievances. He did not do so. On the other hand he conveniently remained absent from the same with a result that even the suspension order could not be served on him. That the State of Bihar also did nothing in the matter is another part of the story!
### Response:
1
### Explanation:
6. The aforesaid order has never been assailed by the respondent and the purport of the impugned orders would be to give him the full salary benefits for the complete period of absence, something we cannot countenance.7. We were initially a little circumspect in respect of the manner in which the State has handled the case of the respondent where he remained under suspension for a long period of time without any departmental proceeding being initiated and the explanation given by the learned counsel for the State of Jharkhand that most of the period was when the Sate of Jharkhand had not been carved out did not appeal to us. However, what appeals to us is the fact that after his suspension the respondent appears to have disappeared from the scene and thus cannot be permitted to take advantage of his absence of the suspension order. We did put a question to the learned counsel for the respondent that did he ever report for work after the suspension order or over this period of time did he ever challenged the same till his suspension was revoked by the State of Jharkhand and there is no answer to the same.8. It would be absolutely contrary to a service jurisprudence principle if an employee is able to take advantage of his own absence for this period of time. If his grievance was that departmental proceedings were not being initiated despite suspension, he was required to take redressal of his grievances. He did not do so. On the other hand he conveniently remained absent from the same with a result that even the suspension order could not be served on him. That the State of Bihar also did nothing in the matter is another part of the story!
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SWETHA ENGINEERING LTD Vs. COMMISSIONER OF CENTRAL EXCISE, CHENNAI | 1. Appellant/Assesee herein is the manufacturer of machinery and parts for marketing pulp and paper, steel fabricated structures. 2. On a scrutiny of the sales for the year 1997-98, it was noticed that the said company had dispatched steel fabricated, structures for mounting the boilers and their accessories to M/s. Gujarat Torrent Energy Corporation Ltd. on behalf of M/s. Deutshe Babcock Balcke Durr Limited, Chennai and M/s. HPL Co. Gen. Ltd., Midnapore on behalf of M/s. Mitsui Babcock Energy (I) Pvt. Ltd., Chennai. The assessee had treated these fabricated structures as a part of boiler and classified them under Chapter Heading 8402.90 attracting 13% E.D. whereas they appeared to be classifiable as steel structures falling under Chapter 7308 attracting 15% E.D. Hence three show cause notices were issued on 5-11-1997, 16-4-1998 and on 13-7-1998 directing the assessee to show cause as to why differential duty of Rs. 6,89,156.65/- should not be demanded from it u/s 11A of the Central Excise Act, 1944. 3. The assessee has filed its reply contending that it has rightly classified them under Central Excise Tariff sub-heading 8402.90 in its 173B declaration filed on 3-3-1997 and again in declaration dated 2-4-1997, describing them as Boiler Structure/Steel Structure for Boilers as described by the customer in their purchase order. It further stated that whatever it has manufactured against the purchase order is only boiler component falling under the Indian Boilers Act and rules framed thereunder. It further stated that it has got the license/certificate from the boiler inspector since the said items cannot be manufactured without said license/certificate. 4. Issue arose as to whether the steel fabricated structures manufactured by the assessee in its factory and subsequently cleared in unassembled condition to the customers site and erected there would merit classification as parts of boilers under chapter sub-heading 8402.90 of the Central Excise Tariff Act, 1985. 5. The Commissioner vide his order dated 31-7-1988 confirmed the demand in the show cause notice and the order has been upheld by the CESTAT as well, which is under appeal before this Court. 6. It is not necessary to go into the merits of the controversy in view of the clarification issued by the Department itself vide its order dated 2nd April, 2012. It is inter alia stated as under : Accordingly it is clarified that those structural components which are to be used essentially as part of Boiler System would be classifiable as parts of Boiler only under Heading 8402 of the Tariff. It is further clarified that since these structural components are nothing but the parts and accessories of the Boiler, they would be covered by the definition of inputs under Rule 2(k)(iii) of the CENVAT Credit rules, 2004 (i.e. all goods for generation of electricity and steam). Further these structural components shall not be hit by the exclusion clause to the said definition of inputs, as these are not used for laying of foundation or making of structures for support of capital goods, but are essentially the part of said Boilers. 7. The Department itself has come out with the clarification that those structural components which are to be used as parts of Boiler System would be classifiable as parts of Boiler only under Heading 8402 of the Tariff. This clarification, thus, vindicates the stand which was taken by the assessee throughout by rightly classifying the parts of the boilers under Chapter sub-heading 8402.90 of the Central Excise Tariff Act, 1985. | 1[ds]7. The Department itself has come out with the clarification that those structural components which are to be used as parts of Boiler System would be classifiable as parts of Boiler only under Heading 8402 of the Tariff. This clarification, thus, vindicates the stand which was taken by the assessee throughout by rightly classifying the parts of the boilers under Chapter sub-heading 8402.90 of the Central Excise Tariff Act, 1985. | 1 | 636 | 80 | ### 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:
1. Appellant/Assesee herein is the manufacturer of machinery and parts for marketing pulp and paper, steel fabricated structures. 2. On a scrutiny of the sales for the year 1997-98, it was noticed that the said company had dispatched steel fabricated, structures for mounting the boilers and their accessories to M/s. Gujarat Torrent Energy Corporation Ltd. on behalf of M/s. Deutshe Babcock Balcke Durr Limited, Chennai and M/s. HPL Co. Gen. Ltd., Midnapore on behalf of M/s. Mitsui Babcock Energy (I) Pvt. Ltd., Chennai. The assessee had treated these fabricated structures as a part of boiler and classified them under Chapter Heading 8402.90 attracting 13% E.D. whereas they appeared to be classifiable as steel structures falling under Chapter 7308 attracting 15% E.D. Hence three show cause notices were issued on 5-11-1997, 16-4-1998 and on 13-7-1998 directing the assessee to show cause as to why differential duty of Rs. 6,89,156.65/- should not be demanded from it u/s 11A of the Central Excise Act, 1944. 3. The assessee has filed its reply contending that it has rightly classified them under Central Excise Tariff sub-heading 8402.90 in its 173B declaration filed on 3-3-1997 and again in declaration dated 2-4-1997, describing them as Boiler Structure/Steel Structure for Boilers as described by the customer in their purchase order. It further stated that whatever it has manufactured against the purchase order is only boiler component falling under the Indian Boilers Act and rules framed thereunder. It further stated that it has got the license/certificate from the boiler inspector since the said items cannot be manufactured without said license/certificate. 4. Issue arose as to whether the steel fabricated structures manufactured by the assessee in its factory and subsequently cleared in unassembled condition to the customers site and erected there would merit classification as parts of boilers under chapter sub-heading 8402.90 of the Central Excise Tariff Act, 1985. 5. The Commissioner vide his order dated 31-7-1988 confirmed the demand in the show cause notice and the order has been upheld by the CESTAT as well, which is under appeal before this Court. 6. It is not necessary to go into the merits of the controversy in view of the clarification issued by the Department itself vide its order dated 2nd April, 2012. It is inter alia stated as under : Accordingly it is clarified that those structural components which are to be used essentially as part of Boiler System would be classifiable as parts of Boiler only under Heading 8402 of the Tariff. It is further clarified that since these structural components are nothing but the parts and accessories of the Boiler, they would be covered by the definition of inputs under Rule 2(k)(iii) of the CENVAT Credit rules, 2004 (i.e. all goods for generation of electricity and steam). Further these structural components shall not be hit by the exclusion clause to the said definition of inputs, as these are not used for laying of foundation or making of structures for support of capital goods, but are essentially the part of said Boilers. 7. The Department itself has come out with the clarification that those structural components which are to be used as parts of Boiler System would be classifiable as parts of Boiler only under Heading 8402 of the Tariff. This clarification, thus, vindicates the stand which was taken by the assessee throughout by rightly classifying the parts of the boilers under Chapter sub-heading 8402.90 of the Central Excise Tariff Act, 1985.
### Response:
1
### Explanation:
7. The Department itself has come out with the clarification that those structural components which are to be used as parts of Boiler System would be classifiable as parts of Boiler only under Heading 8402 of the Tariff. This clarification, thus, vindicates the stand which was taken by the assessee throughout by rightly classifying the parts of the boilers under Chapter sub-heading 8402.90 of the Central Excise Tariff Act, 1985.
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Mangan Lal Deoshi Vs. Mohammad Moinul Haoque & Others | into their possession.5. Now, sub-section (1) of section 17 of the Registration Act, enumerates five categories of documents of which registration is made compulsory which include "(d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;". Sub-section (2) however provided that "nothing in clauses (b) and (c) of sub-section (1) applies to.... (vi) any decree or order of court." It may be mentioned in passing that this clause was amended with affect from the 1st April, 1930, by the Transfer of Property (Amendment) Supplementary Act, 1929, so as to exclude from the scope of the exception compromise decrees comprising immovable property other than that which is the subject-matter of the suit. But the amendment cannot affect the document here in question which came into existence in 1923. Before the amendment, the clause was held to cover even compromise decrees comprising immovable property which was not the subject matter of the suit : [Vide Hemanta Kumari Debi v. Midnapur Zamindari Co. [47 Cal. 485 : P.C.]. That decision applies to the present case and obviates the objection that because the compromise in question covered also the remaining 5, 300 bighas which were not the subject-matter of the title suit of 1921, it was outside the scope of the exception in sub-section (2), clause (vi).6. The only question, therefore, is whether the compromise decree is a "lease" [which expression includes "an agreement to lease" by the definition in section 2(7)] within the meaning of cl. (d) of sub-section (1). It is obvious that if the compromise decree falls within clause (d) of sub-section (1) it would not be protected under clause (vi) of sub-section (2) which excepts only documents falling under the categories (b) and (c) of sub-section (1). The High Court was of opinion that, on a proper construction of the terms of the compromise, it did not fall under clause (d). Manohar Lall J., who delivered the leading judgment, observed :"It was a tripartite agreement embodied in the decree of the court and was, therefore, exempt from registration. It will be observed also that so far as the defendants were concerned, their possession of the 500 bighas was not interfered with and they still remained in possession as the lessees, but instead of paying the royalty to the plaintiffs it was agreed between all the parties that the defendants would pay the royalty in future to Shibsaran and Sitaram. If the matter had stood there the learned Advocate for the appellant could not have seriously contested the position, but he vehemently argued that when the agreement was not to pay the same amount of royalty or commission as previously agreed to but an altered amount of royalty and commission, the document should be held to fall within the mischief of section 17(1)(d) of the Registration Act. The answer to this contention is, as I have stated just now, to be found in the Full Bench decision of this court;"[see Chara Chandra Mitras case [3 P.J. 255]. It was there held that a mere alteration of the rent reserved does not make the transaction a new lease so as to bring it within clause (d) of sub-section (1).7. We are unable to share this view. It oversimplifies the compromise transaction which, in our opinion, involves much more than a mere alteration of the royalties stipulated for in the previous pattas executed by Kumar. Nor can we accept the suggestion of Mr. Chatterjee for the respondents that the compromise operated as an assignment to the Singhs by Kumar of the latters reversion under the "lease granted to the Deoshis and all that the latter did was to acknowledge the Singhs as their landlords and attorn to them. On this view it was said that the transaction would not fall under clause (d), although it would fall under clause (b) but then would be saved by the exception in clause (vi) of sub-section (2). The argument, however, overlooks that Kumar had leased the area of 5, 800 bighas to the Singhs by his patta dated 11th March, 1921, and the compromise by providing that the Singhs should pay the reduced royalty of 1a. 9p. per ton in respect of the whole area preserved Kumars reversion intact. He could not therefore be deemed to have assigned any part of his interest in 5, 800 bighas as landlord to the Singhs who continue to hold the entire extent as tenants under him. What the compromise really did was, as stated already, to bring the Singhs and the Deoshis into a new legal relationship as under-lessor and under-lessee in respect of 500 bighas which were the subject-matter of the title suit; in other words, its legal effect was to create a perpetual underlease between the Singhs and the Deoshis which would clearly fall under clause (d) but for the circumstance that it was to take effect only on condition that the Singhs paid Rs. 8, 000 to Kumar within 2 months thereafter. As pointed out by the Judicial Committee in Hemanta Kumars case [47 Cal. 485 at p. 494]"An agreement for a lease, which a lease is by the statute declared to include, must, in their Lordships opinion, be a document which effects an actual demise and operates as a lease... The phrase which in the context where it occurs and in the statute in which it is found, must in their opinion relate to some document which creates a present and immediate interest in the land."8. The compromise decree expressly provides that unless the sum of Rs. 8, 000 was paid within the stipulated time the Singhs were not to execute the decree or to take possession of the disputed property. Until the payment was made it was impossible to determine whether there would be any underlease or not. Such a contingent agreement is not within clause (d) and although it is covered by clause (b), is excepted by clause (vi) of sub-section (2). | 0[ds]We are unable to share this view. It oversimplifies the compromise transaction which, in our opinion, involves much more than a mere alteration of the royalties stipulated for in the previous pattas executed by Kumar. Nor can we accept the suggestion ofMr. Chatterjee for the respondents that the compromise operated as an assignment to the Singhs by Kumar of the latters reversion under the "lease granted to the Deoshis and all that the latter did was to acknowledge the Singhs as their landlords and attorn to them.On this view it was said that the transaction would not fall under clause (d), although it would fall under clause (b) but then would be saved by the exception in clause (vi) of sub-section (2). The argument, however, overlooks that Kumar had leased the area of 5, 800 bighas to the Singhs by his patta dated 11th March, 1921, and the compromise by providing that the Singhs should pay the reduced royalty of 1a. 9p. per ton in respect of the whole area preserved Kumars reversion intact. He could not therefore be deemed to have assigned any part of his interest in 5, 800 bighas as landlord to the Singhs who continue to hold the entire extent as tenants under him. What the compromise really did was, as stated already, to bring the Singhs and the Deoshis into a new legal relationship as under-lessor and under-lessee in respect of 500 bighas which were the subject-matter of the title suit; in other words, its legal effect was to create a perpetual underlease between the Singhs and the Deoshis which would clearly fall under clause (d) but for the circumstance that it was to take effect only on condition that the Singhs paid Rs. 8, 000 to Kumar within 2 monthscompromise decree expressly provides that unless the sum of Rs. 8, 000 was paid within the stipulated time the Singhs were not to execute the decree or to take possession of the disputed property. Until the payment was made it was impossible to determine whether there would be any underlease or not. Such a contingent agreement is not within clause (d) and although it is covered by clause (b), is excepted by clause (vi) of sub-section (2). | 0 | 2,626 | 424 | ### 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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into their possession.5. Now, sub-section (1) of section 17 of the Registration Act, enumerates five categories of documents of which registration is made compulsory which include "(d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;". Sub-section (2) however provided that "nothing in clauses (b) and (c) of sub-section (1) applies to.... (vi) any decree or order of court." It may be mentioned in passing that this clause was amended with affect from the 1st April, 1930, by the Transfer of Property (Amendment) Supplementary Act, 1929, so as to exclude from the scope of the exception compromise decrees comprising immovable property other than that which is the subject-matter of the suit. But the amendment cannot affect the document here in question which came into existence in 1923. Before the amendment, the clause was held to cover even compromise decrees comprising immovable property which was not the subject matter of the suit : [Vide Hemanta Kumari Debi v. Midnapur Zamindari Co. [47 Cal. 485 : P.C.]. That decision applies to the present case and obviates the objection that because the compromise in question covered also the remaining 5, 300 bighas which were not the subject-matter of the title suit of 1921, it was outside the scope of the exception in sub-section (2), clause (vi).6. The only question, therefore, is whether the compromise decree is a "lease" [which expression includes "an agreement to lease" by the definition in section 2(7)] within the meaning of cl. (d) of sub-section (1). It is obvious that if the compromise decree falls within clause (d) of sub-section (1) it would not be protected under clause (vi) of sub-section (2) which excepts only documents falling under the categories (b) and (c) of sub-section (1). The High Court was of opinion that, on a proper construction of the terms of the compromise, it did not fall under clause (d). Manohar Lall J., who delivered the leading judgment, observed :"It was a tripartite agreement embodied in the decree of the court and was, therefore, exempt from registration. It will be observed also that so far as the defendants were concerned, their possession of the 500 bighas was not interfered with and they still remained in possession as the lessees, but instead of paying the royalty to the plaintiffs it was agreed between all the parties that the defendants would pay the royalty in future to Shibsaran and Sitaram. If the matter had stood there the learned Advocate for the appellant could not have seriously contested the position, but he vehemently argued that when the agreement was not to pay the same amount of royalty or commission as previously agreed to but an altered amount of royalty and commission, the document should be held to fall within the mischief of section 17(1)(d) of the Registration Act. The answer to this contention is, as I have stated just now, to be found in the Full Bench decision of this court;"[see Chara Chandra Mitras case [3 P.J. 255]. It was there held that a mere alteration of the rent reserved does not make the transaction a new lease so as to bring it within clause (d) of sub-section (1).7. We are unable to share this view. It oversimplifies the compromise transaction which, in our opinion, involves much more than a mere alteration of the royalties stipulated for in the previous pattas executed by Kumar. Nor can we accept the suggestion of Mr. Chatterjee for the respondents that the compromise operated as an assignment to the Singhs by Kumar of the latters reversion under the "lease granted to the Deoshis and all that the latter did was to acknowledge the Singhs as their landlords and attorn to them. On this view it was said that the transaction would not fall under clause (d), although it would fall under clause (b) but then would be saved by the exception in clause (vi) of sub-section (2). The argument, however, overlooks that Kumar had leased the area of 5, 800 bighas to the Singhs by his patta dated 11th March, 1921, and the compromise by providing that the Singhs should pay the reduced royalty of 1a. 9p. per ton in respect of the whole area preserved Kumars reversion intact. He could not therefore be deemed to have assigned any part of his interest in 5, 800 bighas as landlord to the Singhs who continue to hold the entire extent as tenants under him. What the compromise really did was, as stated already, to bring the Singhs and the Deoshis into a new legal relationship as under-lessor and under-lessee in respect of 500 bighas which were the subject-matter of the title suit; in other words, its legal effect was to create a perpetual underlease between the Singhs and the Deoshis which would clearly fall under clause (d) but for the circumstance that it was to take effect only on condition that the Singhs paid Rs. 8, 000 to Kumar within 2 months thereafter. As pointed out by the Judicial Committee in Hemanta Kumars case [47 Cal. 485 at p. 494]"An agreement for a lease, which a lease is by the statute declared to include, must, in their Lordships opinion, be a document which effects an actual demise and operates as a lease... The phrase which in the context where it occurs and in the statute in which it is found, must in their opinion relate to some document which creates a present and immediate interest in the land."8. The compromise decree expressly provides that unless the sum of Rs. 8, 000 was paid within the stipulated time the Singhs were not to execute the decree or to take possession of the disputed property. Until the payment was made it was impossible to determine whether there would be any underlease or not. Such a contingent agreement is not within clause (d) and although it is covered by clause (b), is excepted by clause (vi) of sub-section (2).
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We are unable to share this view. It oversimplifies the compromise transaction which, in our opinion, involves much more than a mere alteration of the royalties stipulated for in the previous pattas executed by Kumar. Nor can we accept the suggestion ofMr. Chatterjee for the respondents that the compromise operated as an assignment to the Singhs by Kumar of the latters reversion under the "lease granted to the Deoshis and all that the latter did was to acknowledge the Singhs as their landlords and attorn to them.On this view it was said that the transaction would not fall under clause (d), although it would fall under clause (b) but then would be saved by the exception in clause (vi) of sub-section (2). The argument, however, overlooks that Kumar had leased the area of 5, 800 bighas to the Singhs by his patta dated 11th March, 1921, and the compromise by providing that the Singhs should pay the reduced royalty of 1a. 9p. per ton in respect of the whole area preserved Kumars reversion intact. He could not therefore be deemed to have assigned any part of his interest in 5, 800 bighas as landlord to the Singhs who continue to hold the entire extent as tenants under him. What the compromise really did was, as stated already, to bring the Singhs and the Deoshis into a new legal relationship as under-lessor and under-lessee in respect of 500 bighas which were the subject-matter of the title suit; in other words, its legal effect was to create a perpetual underlease between the Singhs and the Deoshis which would clearly fall under clause (d) but for the circumstance that it was to take effect only on condition that the Singhs paid Rs. 8, 000 to Kumar within 2 monthscompromise decree expressly provides that unless the sum of Rs. 8, 000 was paid within the stipulated time the Singhs were not to execute the decree or to take possession of the disputed property. Until the payment was made it was impossible to determine whether there would be any underlease or not. Such a contingent agreement is not within clause (d) and although it is covered by clause (b), is excepted by clause (vi) of sub-section (2).
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Commissioner of Income Tax Vs. Jyotikana Chowdhurani & Others | that no sum was contributed towards cultivation."13. Even though Sarjoo Prosad, C. J., and Ram Labhaya, J., proceeded on the basis that these facts were proved. Deka, J., struck a dissenting note and observed that there was no evidence as to the claim made by the respondents and that the statements made on affidavit could not be accepted as there was no means to test them. We shall however proceed on the basis that these facts were proved by the assessees and determine whether the operations which the assessees claim to have performed in these forests were agricultural operations such as to bring the income derived from these forests within the definition of agricultural income.14. It may be noted that on the question of the employment of human skill and labour, the Appellants Representative stated before the Tribunal that with regard to the Mechpara Estate, the expenses on forest establishment (including temporary hands) were estimated at Rs. 15,000 a year, the gross receipts being about Rs. 1,70,000. With regard to Parbatjoar Estate, whose gross receipts come to Rs. 3,32,414, the appellants representative stated that a total sum of Rs. 14,057 had been spent on the following heads:8 Forest Officers and 18 Barkandajas . . . - Rs. 5,21932 Forest Guards .- Rs. 4,838Proportionate salary of the Head Officers ...- Rs. 4,000Total - Rs.14,05715. On these facts the majority of the Judges held that even though there was no tilling of the land or planting of seeds or saplings and the trees were of spontaneous germination, the operations carried on by the assessees were conducive to the growth and development of the trees and in essence involves the expenditure of human skill and labour on the land itself. In the opinion of the Court those operations were "agricultural operations" and the land on which the trees stood was being used for "agricultural purposes" and therefore, the income from the sale of the trees was "agricultural income" and was exempt from taxation under S. 4 (3) (viii) of the Income Tax, Act and the Court accordingly answered the referred question in the affirmative.16. The appellant applied for and obtained certificates of fitness under s. 66A (2) of the Act and that is how these appeals have come up for hearing and final disposal before us.17. The connotation of the terms "agriculture" and "agricultural purpose " and the conditions under which the forestry operations performed by the assessee on forests of spontaneous growth can be assimilated to agricultural operations so as to constitute the income derived from the sale of the forest trees agricultural income within the meaning of its definition in s. 2 (1) of the Indian Income Tax Act have been laid down by us in the judgment just delivered inCommissioner of Income-tax, West Bengal v. Raja Benoy Kumar Sahas Roy,civil Appeal No. 165 of 1954, Dated 23-5-1957: ( (S) AIR 1957 S C 763) (A).18. Applying the principles which we have enunciated in that judgment to the facts of the instant cases,it appears that there was no planting or sowing of the seeds nor was any human agency employed for the purpose of tilling the soil.The soil had remained untouched and in the production of the income the assessees had made no contribution by way of cultivation. There were no basic operations either which were performed by the assessees on the forest lands. What was done by them was the performance of forestry operations which were in the nature of subsequent operations, operations which were performed after the produce and sprouted from the soil. The forests continued to be forests of spontaneous growth and the only result of the performance of these operations on the produce of the forests which was the outcome of spontaneous growth unaided by human skill and labour was the maintenance, preservation, nursing, improving and rearing of the forests. Even though these subsequent operations had the effect of increasing the produce of the forests, the forests nonetheless remained forests of spontaneous growth. No human skill and labour was spent by the assessees on the cultivation of the forest land nor was any human skill and labour performed on the land itself. The various operations which were described in the statements of case were no doubt for fostering the growth of the forests and obtain the greatest advantage from the forest trees, but they nevertheless were of spontaneous growth. Nothing was done by the assessees to grow the trees from the soil itself. They had grown there by the process of nature. The obstacles which would retard the growth of these trees which had grown spontaneously from the soil were certainly removed but these operations would not convert these subsequent operations into basic operations which would be the only pre-requisites for the cultivation of the forest land. Out of the categories (a) to (g) set out in the statement of facts, none of the operations was assimilated to basic operations in agriculture and unless and until there was even one basic operation on the land itself the rest of the operations could not be tacked on to them so as to convert the whole of them into agricultural operations. We are of opinion that the ratio adopted by the majority of the Judges of the High Court was erroneous and the referred question ought to have been answered in the negative.19. We are fortified in this conclusion if regard be had to be fact that the forestry operations which were performed by the assessees were of insignificant value as compared with the gross receipts derived by them from the sale of the forests trees. In the case of Mechpara Estate the costs of these operations did not even come to 8% and in the case of the Parbatjoar Estate even to 4% of the gross income.All these operations were mainly operations performed for faciliating the spontaneous growth of these trees from the forest land and could not by any stretch of imagination be assimilated to agricultural operations. | 1[ds]17. The connotation of the terms "agriculture" and "agricultural purpose " and the conditions under which the forestry operations performed by the assessee on forests of spontaneous growth can be assimilated to agricultural operations so as to constitute the income derived from the sale of the forest trees agricultural income within the meaning of its definition in s. 2 (1) of the Indian Income Tax Act have been laid down by us in the judgment just delivered inCommissioner ofWest Bengal v. Raja Benoy Kumar Sahas Roy,civil Appeal No. 165 of 1954, Dated( (S) AIR 1957 S C 763) (A).18. Applying the principles which we have enunciated in that judgment to the facts of the instant cases,it appears that there was no planting or sowing of the seeds nor was any human agency employed for the purpose of tilling the soil.The soil had remained untouched and in the production of the income the assessees had made no contribution by way of cultivation. There were no basic operations either which were performed by the assessees on the forest lands. What was done by them was the performance of forestry operations which were in the nature of subsequent operations, operations which were performed after the produce and sprouted from the soil. The forests continued to be forests of spontaneous growth and the only result of the performance of these operations on the produce of the forests which was the outcome of spontaneous growth unaided by human skill and labour was the maintenance, preservation, nursing, improving and rearing of the forests. Even though these subsequent operations had the effect of increasing the produce of the forests, the forests nonetheless remained forests of spontaneous growth. No human skill and labour was spent by the assessees on the cultivation of the forest land nor was any human skill and labour performed on the land itself. The various operations which were described in the statements of case were no doubt for fostering the growth of the forests and obtain the greatest advantage from the forest trees, but they nevertheless were of spontaneous growth. Nothing was done by the assessees to grow the trees from the soil itself. They had grown there by the process of nature. The obstacles which would retard the growth of these trees which had grown spontaneously from the soil were certainly removed but these operations would not convert these subsequent operations into basic operations which would be the onlyfor the cultivation of the forest land. Out of the categories (a) to (g) set out in the statement of facts, none of the operations was assimilated to basic operations in agriculture and unless and until there was even one basic operation on the land itself the rest of the operations could not be tacked on to them so as to convert the whole of them into agricultural operations. We are of opinion that the ratio adopted by the majority of the Judges of the High Court was erroneous and the referred question ought to have been answered in the negative.19. We are fortified in this conclusion if regard be had to be fact that the forestry operations which were performed by the assessees were of insignificant value as compared with the gross receipts derived by them from the sale of the forests trees. In the case of Mechpara Estate the costs of these operations did not even come to 8% and in the case of the Parbatjoar Estate even to 4% of the gross income.All these operations were mainly operations performed for faciliating the spontaneous growth of these trees from the forest land and could not by any stretch of imagination be assimilated to agricultural operations. | 1 | 3,003 | 663 | ### Instruction:
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that no sum was contributed towards cultivation."13. Even though Sarjoo Prosad, C. J., and Ram Labhaya, J., proceeded on the basis that these facts were proved. Deka, J., struck a dissenting note and observed that there was no evidence as to the claim made by the respondents and that the statements made on affidavit could not be accepted as there was no means to test them. We shall however proceed on the basis that these facts were proved by the assessees and determine whether the operations which the assessees claim to have performed in these forests were agricultural operations such as to bring the income derived from these forests within the definition of agricultural income.14. It may be noted that on the question of the employment of human skill and labour, the Appellants Representative stated before the Tribunal that with regard to the Mechpara Estate, the expenses on forest establishment (including temporary hands) were estimated at Rs. 15,000 a year, the gross receipts being about Rs. 1,70,000. With regard to Parbatjoar Estate, whose gross receipts come to Rs. 3,32,414, the appellants representative stated that a total sum of Rs. 14,057 had been spent on the following heads:8 Forest Officers and 18 Barkandajas . . . - Rs. 5,21932 Forest Guards .- Rs. 4,838Proportionate salary of the Head Officers ...- Rs. 4,000Total - Rs.14,05715. On these facts the majority of the Judges held that even though there was no tilling of the land or planting of seeds or saplings and the trees were of spontaneous germination, the operations carried on by the assessees were conducive to the growth and development of the trees and in essence involves the expenditure of human skill and labour on the land itself. In the opinion of the Court those operations were "agricultural operations" and the land on which the trees stood was being used for "agricultural purposes" and therefore, the income from the sale of the trees was "agricultural income" and was exempt from taxation under S. 4 (3) (viii) of the Income Tax, Act and the Court accordingly answered the referred question in the affirmative.16. The appellant applied for and obtained certificates of fitness under s. 66A (2) of the Act and that is how these appeals have come up for hearing and final disposal before us.17. The connotation of the terms "agriculture" and "agricultural purpose " and the conditions under which the forestry operations performed by the assessee on forests of spontaneous growth can be assimilated to agricultural operations so as to constitute the income derived from the sale of the forest trees agricultural income within the meaning of its definition in s. 2 (1) of the Indian Income Tax Act have been laid down by us in the judgment just delivered inCommissioner of Income-tax, West Bengal v. Raja Benoy Kumar Sahas Roy,civil Appeal No. 165 of 1954, Dated 23-5-1957: ( (S) AIR 1957 S C 763) (A).18. Applying the principles which we have enunciated in that judgment to the facts of the instant cases,it appears that there was no planting or sowing of the seeds nor was any human agency employed for the purpose of tilling the soil.The soil had remained untouched and in the production of the income the assessees had made no contribution by way of cultivation. There were no basic operations either which were performed by the assessees on the forest lands. What was done by them was the performance of forestry operations which were in the nature of subsequent operations, operations which were performed after the produce and sprouted from the soil. The forests continued to be forests of spontaneous growth and the only result of the performance of these operations on the produce of the forests which was the outcome of spontaneous growth unaided by human skill and labour was the maintenance, preservation, nursing, improving and rearing of the forests. Even though these subsequent operations had the effect of increasing the produce of the forests, the forests nonetheless remained forests of spontaneous growth. No human skill and labour was spent by the assessees on the cultivation of the forest land nor was any human skill and labour performed on the land itself. The various operations which were described in the statements of case were no doubt for fostering the growth of the forests and obtain the greatest advantage from the forest trees, but they nevertheless were of spontaneous growth. Nothing was done by the assessees to grow the trees from the soil itself. They had grown there by the process of nature. The obstacles which would retard the growth of these trees which had grown spontaneously from the soil were certainly removed but these operations would not convert these subsequent operations into basic operations which would be the only pre-requisites for the cultivation of the forest land. Out of the categories (a) to (g) set out in the statement of facts, none of the operations was assimilated to basic operations in agriculture and unless and until there was even one basic operation on the land itself the rest of the operations could not be tacked on to them so as to convert the whole of them into agricultural operations. We are of opinion that the ratio adopted by the majority of the Judges of the High Court was erroneous and the referred question ought to have been answered in the negative.19. We are fortified in this conclusion if regard be had to be fact that the forestry operations which were performed by the assessees were of insignificant value as compared with the gross receipts derived by them from the sale of the forests trees. In the case of Mechpara Estate the costs of these operations did not even come to 8% and in the case of the Parbatjoar Estate even to 4% of the gross income.All these operations were mainly operations performed for faciliating the spontaneous growth of these trees from the forest land and could not by any stretch of imagination be assimilated to agricultural operations.
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### Explanation:
17. The connotation of the terms "agriculture" and "agricultural purpose " and the conditions under which the forestry operations performed by the assessee on forests of spontaneous growth can be assimilated to agricultural operations so as to constitute the income derived from the sale of the forest trees agricultural income within the meaning of its definition in s. 2 (1) of the Indian Income Tax Act have been laid down by us in the judgment just delivered inCommissioner ofWest Bengal v. Raja Benoy Kumar Sahas Roy,civil Appeal No. 165 of 1954, Dated( (S) AIR 1957 S C 763) (A).18. Applying the principles which we have enunciated in that judgment to the facts of the instant cases,it appears that there was no planting or sowing of the seeds nor was any human agency employed for the purpose of tilling the soil.The soil had remained untouched and in the production of the income the assessees had made no contribution by way of cultivation. There were no basic operations either which were performed by the assessees on the forest lands. What was done by them was the performance of forestry operations which were in the nature of subsequent operations, operations which were performed after the produce and sprouted from the soil. The forests continued to be forests of spontaneous growth and the only result of the performance of these operations on the produce of the forests which was the outcome of spontaneous growth unaided by human skill and labour was the maintenance, preservation, nursing, improving and rearing of the forests. Even though these subsequent operations had the effect of increasing the produce of the forests, the forests nonetheless remained forests of spontaneous growth. No human skill and labour was spent by the assessees on the cultivation of the forest land nor was any human skill and labour performed on the land itself. The various operations which were described in the statements of case were no doubt for fostering the growth of the forests and obtain the greatest advantage from the forest trees, but they nevertheless were of spontaneous growth. Nothing was done by the assessees to grow the trees from the soil itself. They had grown there by the process of nature. The obstacles which would retard the growth of these trees which had grown spontaneously from the soil were certainly removed but these operations would not convert these subsequent operations into basic operations which would be the onlyfor the cultivation of the forest land. Out of the categories (a) to (g) set out in the statement of facts, none of the operations was assimilated to basic operations in agriculture and unless and until there was even one basic operation on the land itself the rest of the operations could not be tacked on to them so as to convert the whole of them into agricultural operations. We are of opinion that the ratio adopted by the majority of the Judges of the High Court was erroneous and the referred question ought to have been answered in the negative.19. We are fortified in this conclusion if regard be had to be fact that the forestry operations which were performed by the assessees were of insignificant value as compared with the gross receipts derived by them from the sale of the forests trees. In the case of Mechpara Estate the costs of these operations did not even come to 8% and in the case of the Parbatjoar Estate even to 4% of the gross income.All these operations were mainly operations performed for faciliating the spontaneous growth of these trees from the forest land and could not by any stretch of imagination be assimilated to agricultural operations.
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I.C.I. Private Ltd Vs. The Commissioner of Income Tax, West Bengal | on the facts and in the circumstances of the case and on a proper construction of the documents referred to and/or considered by it the Tribunal was right in arriving at the finding that the transfer of the shares to Imperial Chemical Industries Ltd., London at the issue price or par was throughout the basis of the advance of loans to the assessee? 2. Whether, in arriving at the said finding the Tribunal misdirected itself in law in basing the said finding on evidence covering some matters only and ignoring evidence on other essential matters? 3. Whether, on the facts and in the circumstances of the case and particularly on view of the finding that there was no enforceable agreement making it obligatory upon the assessee to transfer the shares to Imperial Chemical Industries Ltd., London at par or issue price the conclusion of the Tribunal that the transfer of the shares by the assessee to the latter company at par was not effected with the object of avoidance or reduction of the liability of the assessee to capital gains tax was unreasonable or perverse? 4. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that Section 52 of the Income-tax Act, 1961, was not applicable to the facts of the case?" On the analysis of Section 52 of the Act made by us at a previous stage and the clear, cogent and precise findings and conclusions of the Appellate Tribunal, we are wholly unable to comprehend, how any question of law of the nature sought to be referred arose or arises from the order of the Appellate Tribunal. It is unfortunate that in a case of this nature and magnitude, the High Court did not choose to record a speaking order to enable us to appreciate the reasons which prevailed with it for directing the four questions to be referred. The Jurisdiction in the matter of reference can be exercised (i) when the point for determination is a pure question of law such as construction of a statute or document of title; (ii) when the point for determination is a mixed question of law and fact; while the finding of the Tribunal on the facts is final its decision as to the legal effect of those findings is a question of law (iii) a finding on a question of fact is open to attack as erroneous in law when there is no evidence to support it or if it is perverse. Where, however, the finding is one of fact, the fact that it is an inference from other basic fact will not alter its character as one of fact (See Sree Meenakshi Mills Ltd. v. Commr. of Income-tax, Madras, 31 ITR 28 = (AIR 1957 SC 49 ).In that case it was held that there was no question of construction of any statutory provision or document of title. The issues which arose for determination, whether the sales entered in books of the appellant in the names of the intermediaries were genuine, and if not, to whom the goods were sold and for what price, were all questions of fact. Their determination did not involve the application of any legal principles to facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It, therefore, followed that there was no question which could be referred to the Court under Section 66 (1) of the Income-tax Act 1922.The same principles will apply when a reference is sought under Section 256 of the Act. We are altogether unable to see how findings of the Appellate Tribunal that the transfer of shares in the present case was not made with the intention or object of avoidance or reduction of liability to capital gains were not question of fact and did not depend on inference of facts from the evidence or the material before the Tribunal. It can well be said that the determination of the question whether the object of the assessee was to avoid or reduce its liability to capital gains by making the transfers in question did not involve the application of any legal principles to the facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It is true that the amount involved is very large but that cannot justify a reference as under Section 256 of the Act neither the Appellate Tribunal could make a reference nor could the High Court direct the reference to be made to it by the Tribunal on pure questions of fact. 15. The learned counsel for the Commissioner has sought to invite our attention to certain parts of the order of the Tribunal and, in particular, to the statement extracted by us at an earlier stage about the question whether the assessee had held the shares beneficially and the point which was debated before the Tribunal whether there was any binding legal agreement between the assessee and I. C. I for transfer of the shares at par. We are unable to see how these matters were relevant for the purpose of determining the intention or object underlying the transfer of the shares to I. C. I. the assessee. Once the Tribunal came to the conclusion which was purely one of fact that before there was any proposal to reimpose capital gains tax which came to be embodied in the Finance Bill towards the end of November 1956, the scheme had been fully evolved between the assessee and I. C. I of making the loans by the later to the former for being invested in the three companies and that the shares would be transferred at par by the assessee to I. C. I. Whenever desired, the applicability of Section 52 could not be attracted as the same depended on certain facts which must exist or must be found and which had not been so found by the Tribunal. | 1[ds]7. As regards the first requirement, that was admittedly satisfied in the present case. The second requirement could be satisfied only if there was any cogent material on which the Income tax Officer could have reason to believe that the transfers were effected with the object of avoidance or reduction of liability to capital gains. It is abundantly clear that the intention with which a particular transfer is made, and the object which is to be achieved by such transfer is essentially a question of fact, the conclusion relating to which is to be arrived at on a consideration of the relevant material. In other words, before the Income tax Officer can have any reason to believe that a transfer was effected with the object mentioned in the section, fact must exist showing that the object was to avoid or reduce the liability to capital gainsOn the analysis of Section 52 of the Act made by us at a previous stage and the clear, cogent and precise findings and conclusions of the Appellate Tribunal, we are wholly unable to comprehend, how any question of law of the nature sought to be referred arose or arises from the order of the Appellate Tribunal. It is unfortunate that in a case of this nature and magnitude, the High Court did not choose to record a speaking order to enable us to appreciate the reasons which prevailed with it for directing the four questions to be referred. The Jurisdiction in the matter of reference can be exercised (i) when the point for determination is a pure question of law such as construction of a statute or document of title; (ii) when the point for determination is a mixed question of law and fact; while the finding of the Tribunal on the facts is final its decision as to the legal effect of those findings is a question of law (iii) a finding on a question of fact is open to attack as erroneous in law when there is no evidence to support it or if it is perverse. Where, however, the finding is one of fact, the fact that it is an inference from other basic fact will not alter its character as one of fact (See Sree Meenakshi Mills Ltd. v. Commr. of Income-tax, Madras, 31 ITR 28 = (AIR 1957 SC 49 ).In that case it was held that there was no question of construction of any statutory provision or document of title. The issues which arose for determination, whether the sales entered in books of the appellant in the names of the intermediaries were genuine, and if not, to whom the goods were sold and for what price, were all questions of fact. Their determination did not involve the application of any legal principles to facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It, therefore, followed that there was no question which could be referred to the Court under Section 66 (1) of the Income-tax Act 1922.The same principles will apply when a reference is sought under Section 256 of the Act. We are altogether unable to see how findings of the Appellate Tribunal that the transfer of shares in the present case was not made with the intention or object of avoidance or reduction of liability to capital gains were not question of fact and did not depend on inference of facts from the evidence or the material before the Tribunal. It can well be said that the determination of the question whether the object of the assessee was to avoid or reduce its liability to capital gains by making the transfers in question did not involve the application of any legal principles to the facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It is true that the amount involved is very large but that cannot justify a reference as under Section 256 of the Act neither the Appellate Tribunal could make a reference nor could the High Court direct the reference to be made to it by the Tribunal on pure questions of fact15. The learned counsel for the Commissioner has sought to invite our attention to certain parts of the order of the Tribunal and, in particular, to the statement extracted by us at an earlier stage about the question whether the assessee had held the shares beneficially and the point which was debated before the Tribunal whether there was any binding legal agreement between the assessee and I. C. I for transfer of the shares at par. We are unable to see how these matters were relevant for the purpose of determining the intention or object underlying the transfer of the shares to I. C. I. the assessee. Once the Tribunal came to the conclusion which was purely one of fact that before there was any proposal to reimpose capital gains tax which came to be embodied in the Finance Bill towards the end of November 1956, the scheme had been fully evolved between the assessee and I. C. I of making the loans by the later to the former for being invested in the three companies and that the shares would be transferred at par by the assessee to I. C. I. Whenever desired, the applicability of Section 52 could not be attracted as the same depended on certain facts which must exist or must be found and which had not been so found by the Tribunal. | 1 | 4,463 | 987 | ### 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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on the facts and in the circumstances of the case and on a proper construction of the documents referred to and/or considered by it the Tribunal was right in arriving at the finding that the transfer of the shares to Imperial Chemical Industries Ltd., London at the issue price or par was throughout the basis of the advance of loans to the assessee? 2. Whether, in arriving at the said finding the Tribunal misdirected itself in law in basing the said finding on evidence covering some matters only and ignoring evidence on other essential matters? 3. Whether, on the facts and in the circumstances of the case and particularly on view of the finding that there was no enforceable agreement making it obligatory upon the assessee to transfer the shares to Imperial Chemical Industries Ltd., London at par or issue price the conclusion of the Tribunal that the transfer of the shares by the assessee to the latter company at par was not effected with the object of avoidance or reduction of the liability of the assessee to capital gains tax was unreasonable or perverse? 4. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that Section 52 of the Income-tax Act, 1961, was not applicable to the facts of the case?" On the analysis of Section 52 of the Act made by us at a previous stage and the clear, cogent and precise findings and conclusions of the Appellate Tribunal, we are wholly unable to comprehend, how any question of law of the nature sought to be referred arose or arises from the order of the Appellate Tribunal. It is unfortunate that in a case of this nature and magnitude, the High Court did not choose to record a speaking order to enable us to appreciate the reasons which prevailed with it for directing the four questions to be referred. The Jurisdiction in the matter of reference can be exercised (i) when the point for determination is a pure question of law such as construction of a statute or document of title; (ii) when the point for determination is a mixed question of law and fact; while the finding of the Tribunal on the facts is final its decision as to the legal effect of those findings is a question of law (iii) a finding on a question of fact is open to attack as erroneous in law when there is no evidence to support it or if it is perverse. Where, however, the finding is one of fact, the fact that it is an inference from other basic fact will not alter its character as one of fact (See Sree Meenakshi Mills Ltd. v. Commr. of Income-tax, Madras, 31 ITR 28 = (AIR 1957 SC 49 ).In that case it was held that there was no question of construction of any statutory provision or document of title. The issues which arose for determination, whether the sales entered in books of the appellant in the names of the intermediaries were genuine, and if not, to whom the goods were sold and for what price, were all questions of fact. Their determination did not involve the application of any legal principles to facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It, therefore, followed that there was no question which could be referred to the Court under Section 66 (1) of the Income-tax Act 1922.The same principles will apply when a reference is sought under Section 256 of the Act. We are altogether unable to see how findings of the Appellate Tribunal that the transfer of shares in the present case was not made with the intention or object of avoidance or reduction of liability to capital gains were not question of fact and did not depend on inference of facts from the evidence or the material before the Tribunal. It can well be said that the determination of the question whether the object of the assessee was to avoid or reduce its liability to capital gains by making the transfers in question did not involve the application of any legal principles to the facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It is true that the amount involved is very large but that cannot justify a reference as under Section 256 of the Act neither the Appellate Tribunal could make a reference nor could the High Court direct the reference to be made to it by the Tribunal on pure questions of fact. 15. The learned counsel for the Commissioner has sought to invite our attention to certain parts of the order of the Tribunal and, in particular, to the statement extracted by us at an earlier stage about the question whether the assessee had held the shares beneficially and the point which was debated before the Tribunal whether there was any binding legal agreement between the assessee and I. C. I for transfer of the shares at par. We are unable to see how these matters were relevant for the purpose of determining the intention or object underlying the transfer of the shares to I. C. I. the assessee. Once the Tribunal came to the conclusion which was purely one of fact that before there was any proposal to reimpose capital gains tax which came to be embodied in the Finance Bill towards the end of November 1956, the scheme had been fully evolved between the assessee and I. C. I of making the loans by the later to the former for being invested in the three companies and that the shares would be transferred at par by the assessee to I. C. I. Whenever desired, the applicability of Section 52 could not be attracted as the same depended on certain facts which must exist or must be found and which had not been so found by the Tribunal.
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7. As regards the first requirement, that was admittedly satisfied in the present case. The second requirement could be satisfied only if there was any cogent material on which the Income tax Officer could have reason to believe that the transfers were effected with the object of avoidance or reduction of liability to capital gains. It is abundantly clear that the intention with which a particular transfer is made, and the object which is to be achieved by such transfer is essentially a question of fact, the conclusion relating to which is to be arrived at on a consideration of the relevant material. In other words, before the Income tax Officer can have any reason to believe that a transfer was effected with the object mentioned in the section, fact must exist showing that the object was to avoid or reduce the liability to capital gainsOn the analysis of Section 52 of the Act made by us at a previous stage and the clear, cogent and precise findings and conclusions of the Appellate Tribunal, we are wholly unable to comprehend, how any question of law of the nature sought to be referred arose or arises from the order of the Appellate Tribunal. It is unfortunate that in a case of this nature and magnitude, the High Court did not choose to record a speaking order to enable us to appreciate the reasons which prevailed with it for directing the four questions to be referred. The Jurisdiction in the matter of reference can be exercised (i) when the point for determination is a pure question of law such as construction of a statute or document of title; (ii) when the point for determination is a mixed question of law and fact; while the finding of the Tribunal on the facts is final its decision as to the legal effect of those findings is a question of law (iii) a finding on a question of fact is open to attack as erroneous in law when there is no evidence to support it or if it is perverse. Where, however, the finding is one of fact, the fact that it is an inference from other basic fact will not alter its character as one of fact (See Sree Meenakshi Mills Ltd. v. Commr. of Income-tax, Madras, 31 ITR 28 = (AIR 1957 SC 49 ).In that case it was held that there was no question of construction of any statutory provision or document of title. The issues which arose for determination, whether the sales entered in books of the appellant in the names of the intermediaries were genuine, and if not, to whom the goods were sold and for what price, were all questions of fact. Their determination did not involve the application of any legal principles to facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It, therefore, followed that there was no question which could be referred to the Court under Section 66 (1) of the Income-tax Act 1922.The same principles will apply when a reference is sought under Section 256 of the Act. We are altogether unable to see how findings of the Appellate Tribunal that the transfer of shares in the present case was not made with the intention or object of avoidance or reduction of liability to capital gains were not question of fact and did not depend on inference of facts from the evidence or the material before the Tribunal. It can well be said that the determination of the question whether the object of the assessee was to avoid or reduce its liability to capital gains by making the transfers in question did not involve the application of any legal principles to the facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It is true that the amount involved is very large but that cannot justify a reference as under Section 256 of the Act neither the Appellate Tribunal could make a reference nor could the High Court direct the reference to be made to it by the Tribunal on pure questions of fact15. The learned counsel for the Commissioner has sought to invite our attention to certain parts of the order of the Tribunal and, in particular, to the statement extracted by us at an earlier stage about the question whether the assessee had held the shares beneficially and the point which was debated before the Tribunal whether there was any binding legal agreement between the assessee and I. C. I for transfer of the shares at par. We are unable to see how these matters were relevant for the purpose of determining the intention or object underlying the transfer of the shares to I. C. I. the assessee. Once the Tribunal came to the conclusion which was purely one of fact that before there was any proposal to reimpose capital gains tax which came to be embodied in the Finance Bill towards the end of November 1956, the scheme had been fully evolved between the assessee and I. C. I of making the loans by the later to the former for being invested in the three companies and that the shares would be transferred at par by the assessee to I. C. I. Whenever desired, the applicability of Section 52 could not be attracted as the same depended on certain facts which must exist or must be found and which had not been so found by the Tribunal.
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Maulavi Hussein Haji Abraham Umarji Vs. State Of Gujarat | a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. vs. Popular Trading Company, Ujjain (2000(5) SCC 515). The legislative casus omissus cannot be supplied by judicial interpretative process. 22. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. An intention to produce an unreasonable result, said Danackwerts, L.J. in Artemiou vs. Procopiou (1966 (1) QB 878), is not to be imputed to a statute if there is some other construction available. Where to apply words literally would defeat the obvious intention of the legislature and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke vs. IRC (1966 AC 557) where at p. 577 he also observed : this is not a new problem, though our standard of drafting is such that it rarely emerges. 23. It is then true that, when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus and that the law intended quae frequentius accident. But, on the other hand, it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom (See Fenton vs. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; a casus omissus, observed Buller, J. in Jones vs. Smart (1 T.R. 52), can in no case be supplied by a court of law, for that would be to make laws. 24. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further (See Grey vs. Pearson 6 H.L. Cas 61). The latter part of this golden rule must, however, be applied with much caution. if, remarked Jervis, C.J., the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning (See Abley vs. Dale 11, C.B. 378). 25. At this juncture, it would be necessary to take note of a maxim Ad ea quae frequentius accidunt jura adaptantur (The laws are adapted to those cases which more frequently occur). 26. One thing which is specifically to be noted here is that the proviso inserted by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2) of the Code and not in respect of Section 167(2). Therefore, what is introduced by way of an exception by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2)(b). That being the position, the interpretation suggested by learned counsel for the appellant cannot be accepted. It is to be noted that the acceptance of application for police custody when an accused is in judicial custody is not a matter of course. Section 49(2)(b) provides inbuilt safeguards against its misuse by mandating filing of an affidavit by the investigating officer to justify the prayer and in an appropriate case the reason for delayed motion. Special Judge before whom such an application is made has to consider the prayer in its proper perspective and in accordance with law keeping in view the purpose for which the POTA was enacted, the reasons and / or explanation offered and pass necessary order. Therefore, the apprehension of learned counsel for appellant that there is likelihood of misuse of the provision is without substance. In any event, that cannot be a ground to give an extended meaning to the provision in the manner suggested by the learned counsel for the appellant. | 0[ds]17. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent21. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary22. Two principles of constructionone relating to casus omissus and the other in regard to reading the statute as a wholeappear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute23. It is then true that, when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus and that the law intended quae frequentius accident. But, on the other hand, it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom24. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further(See Grey vs. Pearson 6 H.L. Cas 61). The latter part of this golden rule must, however, be applied with much caution. if, remarked Jervis, C.J., the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning (See Abley vs. Dale 11, C.B. 378)26. One thing which is specifically to be noted here is that the proviso inserted by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2) of the Code and not in respect of Section 167(2). Therefore, what is introduced by way of an exception by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2)(b). That being the position, the interpretation suggested by learned counsel for the appellant cannot be accepted. It is to be noted that the acceptance of application for police custody when an accused is in judicial custody is not a matter of course. Section 49(2)(b) provides inbuilt safeguards against its misuse by mandating filing of an affidavit by the investigating officer to justify the prayer and in an appropriate case the reason for delayed motion. Special Judge before whom such an application is made has to consider the prayer in its proper perspective and in accordance with law keeping in view the purpose for which the POTA was enacted, the reasons and / or explanation offered and pass necessary order. Therefore, the apprehension of learned counsel for appellant that there is likelihood of misuse of the provision is without substance. In any event, that cannot be a ground to give an extended meaning to the provision in the manner suggested by the learned counsel for the appellant. | 0 | 3,974 | 837 | ### 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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a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. vs. Popular Trading Company, Ujjain (2000(5) SCC 515). The legislative casus omissus cannot be supplied by judicial interpretative process. 22. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. An intention to produce an unreasonable result, said Danackwerts, L.J. in Artemiou vs. Procopiou (1966 (1) QB 878), is not to be imputed to a statute if there is some other construction available. Where to apply words literally would defeat the obvious intention of the legislature and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke vs. IRC (1966 AC 557) where at p. 577 he also observed : this is not a new problem, though our standard of drafting is such that it rarely emerges. 23. It is then true that, when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus and that the law intended quae frequentius accident. But, on the other hand, it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom (See Fenton vs. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; a casus omissus, observed Buller, J. in Jones vs. Smart (1 T.R. 52), can in no case be supplied by a court of law, for that would be to make laws. 24. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further (See Grey vs. Pearson 6 H.L. Cas 61). The latter part of this golden rule must, however, be applied with much caution. if, remarked Jervis, C.J., the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning (See Abley vs. Dale 11, C.B. 378). 25. At this juncture, it would be necessary to take note of a maxim Ad ea quae frequentius accidunt jura adaptantur (The laws are adapted to those cases which more frequently occur). 26. One thing which is specifically to be noted here is that the proviso inserted by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2) of the Code and not in respect of Section 167(2). Therefore, what is introduced by way of an exception by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2)(b). That being the position, the interpretation suggested by learned counsel for the appellant cannot be accepted. It is to be noted that the acceptance of application for police custody when an accused is in judicial custody is not a matter of course. Section 49(2)(b) provides inbuilt safeguards against its misuse by mandating filing of an affidavit by the investigating officer to justify the prayer and in an appropriate case the reason for delayed motion. Special Judge before whom such an application is made has to consider the prayer in its proper perspective and in accordance with law keeping in view the purpose for which the POTA was enacted, the reasons and / or explanation offered and pass necessary order. Therefore, the apprehension of learned counsel for appellant that there is likelihood of misuse of the provision is without substance. In any event, that cannot be a ground to give an extended meaning to the provision in the manner suggested by the learned counsel for the appellant.
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17. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent21. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary22. Two principles of constructionone relating to casus omissus and the other in regard to reading the statute as a wholeappear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute23. It is then true that, when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus and that the law intended quae frequentius accident. But, on the other hand, it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom24. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further(See Grey vs. Pearson 6 H.L. Cas 61). The latter part of this golden rule must, however, be applied with much caution. if, remarked Jervis, C.J., the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning (See Abley vs. Dale 11, C.B. 378)26. One thing which is specifically to be noted here is that the proviso inserted by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2) of the Code and not in respect of Section 167(2). Therefore, what is introduced by way of an exception by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2)(b). That being the position, the interpretation suggested by learned counsel for the appellant cannot be accepted. It is to be noted that the acceptance of application for police custody when an accused is in judicial custody is not a matter of course. Section 49(2)(b) provides inbuilt safeguards against its misuse by mandating filing of an affidavit by the investigating officer to justify the prayer and in an appropriate case the reason for delayed motion. Special Judge before whom such an application is made has to consider the prayer in its proper perspective and in accordance with law keeping in view the purpose for which the POTA was enacted, the reasons and / or explanation offered and pass necessary order. Therefore, the apprehension of learned counsel for appellant that there is likelihood of misuse of the provision is without substance. In any event, that cannot be a ground to give an extended meaning to the provision in the manner suggested by the learned counsel for the appellant.
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Purshottam Das Gupta Vs. The Union of India and Others | duty, drawback to be recovered from any person or any interest or penalty payable by any person under the Act and has not been paid. The word defaulter has also been defined to mean any person from whom government dues are recoverable under the Act. Rule 3 deals with the issuance of recovery certificate; whereas, Rule 4 provides for issuance of notice. Notice is required to be issued and served upon a defaulter requiring him to pay the amount specified in the certificate issued under Rule 2(iii) within seven days from the date of the service of the notice. As already stated defaulter means a person from whom government dues are recoverable under the Act. None of the provisions under the Rules of 1995 makes the former director responsible to pay the dues of the government. The absolute liability created under the Act and the Rules is of that person who is an assessee i.e. a person engaged in production or manufacture of any specified goods included in I schedule of the Act (now the new Central Excise Tariff). In this view of the matter, in our opinion none of the petitioners were and are liable to pay the alleged government dues either under the provisions of the Act or Rules of 1995.26. In view of the above findings, it is not necessary for us to deal with the alternate contention raised by Mr. Nankani. However, since both the parties have addressed us on that aspect in detail, we propose to deal with the submission made in this behalf. Mr. Nankani, in our opinion, is perfectly justified in contending that the order passed by the CEGAT in the case of Mr. S.P. Mittal binds the respondents since a specific finding has been recorded by the Tribunal holding that the order of confirming duty and imposing penalty was only against the company and not against the director Mr. S.P. Mittal. Consequently, his appeal was dismissed for want of locus standi. This order has been accepted by the Revenue. The order has become final and conclusive. The Supreme Court has explained the concept of res judicata in the case of Sulochana Amma v. Narayanan Nair [1995 (77) E.L.T. 785 (S.C.)]. The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, decided and became final, so that parties are not vexed twice over; vexatious litigation is put an end to and the valuable time of the Court is saved. It is based on public policy as well as private justice. The principle would very much apply, to all judicial proceedings whether civil or otherwise. It equally applies to quasi-judicial proceedings of the Tribunals other than the Civil Courts. In this view of the matter, the respondents cannot set up any demand against Mr. S.P. Mittal based on the order dated 22-6-2000 passed against the company - M/s. GTL. The reasons recorded by the CEGAT while rejecting appeal filed by Mr. S.P. Mittal holds good even in the case of Mr. K.T. Shah.”20. This Judgment only follows what has been held earlier and subsequently.21. The reliance on the Judgment in the case of the Employees State Insurance Corporation (supra) indicates that this decision of the Supreme Court was rendered while dealing with the provisions of a distinct statute – The Employees State Insurance Act, 1948. There Section 2(17)(i) & (iii), and Sections 40 and 41 outline the concept of a Principal employer. In the case of a private limited company having its factory and duly naming an occupier, as also having a Manager, it was still held that the provision is not applicable to the Directors and the company was held to be liable. In the event there being an occupier, such occupier would be personally liable. 22. We do not think that any assistance can be derived by Mr. Jetly from this Judgment or from the general principle that it is possible to pierce the veil of a corporate entity and find out whether it is a glorified partnership. In the present case, according to Mr. Jetly, the piercing of veil has been done and that is why notices have been issued. We are sorry we cannot accept his contention and for more than one reason. This conclusion must be clearly discernible from the orders in the adjudication proceedings, in the sense the show cause notices must be directed to the Director personally and in addition to the corporate entity. Secondly, such corporate entity together with the Director must be heard and the Director must be granted an opportunity to satisfy the Adjudicating Authority that insofar as the company and its business is concerned, the Director may, as a part and parcel of the Board, lay down broad policies and take decisions in relation thereto but the day-to-day business is not discharged by him. That is carried out by other salaried persons, duly appointed for that purpose. The responsibilities are fixed and it is they who have to discharge their obligations and duties by pointing out to the persons in charge of the finances or in the management of finances, so that the liabilities of the company can be met or dues payable by the company can be paid. Thus there is a team of officials which takes a decision in relation to the day-to-day activities and management so also administration of the policy decisions. Something more than this and proof of involvement not only in the day-to-day activities but all affairs will also have to be placed on record to establish the piercing of veil. The argument now built, only on the basis of this principle and referred in the affidavit in reply is thus of no avail to Mr. Jetly. On that basis, we cannot hold that the petitioner is also liable for the dues of the company. | 1[ds]22. We do not think that any assistance can be derived by Mr. Jetly from this Judgment or from the general principle that it is possible to pierce the veil of a corporate entity and find out whether it is a glorified partnership. In the present case, according to Mr. Jetly, the piercing of veil has been done and that is why notices have been issued. We are sorry we cannot accept his contention and for more than one reason. This conclusion must be clearly discernible from the orders in the adjudication proceedings, in the sense the show cause notices must be directed to the Director personally and in addition to the corporate entity. Secondly, such corporate entity together with the Director must be heard and the Director must be granted an opportunity to satisfy the Adjudicating Authority that insofar as the company and its business is concerned, the Director may, as a part and parcel of the Board, lay down broad policies and take decisions in relation thereto but the day-to-day business is not discharged by him. That is carried out by other salaried persons, duly appointed for that purpose. The responsibilities are fixed and it is they who have to discharge their obligations and duties by pointing out to the persons in charge of the finances or in the management of finances, so that the liabilities of the company can be met or dues payable by the company can be paid. Thus there is a team of officials which takes a decision in relation to the day-to-day activities and management so also administration of the policy decisions. Something more than this and proof of involvement not only in the day-to-day activities but all affairs will also have to be placed on record to establish the piercing of veil. The argument now built, only on the basis of this principle and referred in the affidavit in reply is thus of no avail to Mr. Jetly. On that basis, we cannot hold that the petitioner is also liable for the dues of the company. | 1 | 5,024 | 373 | ### Instruction:
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duty, drawback to be recovered from any person or any interest or penalty payable by any person under the Act and has not been paid. The word defaulter has also been defined to mean any person from whom government dues are recoverable under the Act. Rule 3 deals with the issuance of recovery certificate; whereas, Rule 4 provides for issuance of notice. Notice is required to be issued and served upon a defaulter requiring him to pay the amount specified in the certificate issued under Rule 2(iii) within seven days from the date of the service of the notice. As already stated defaulter means a person from whom government dues are recoverable under the Act. None of the provisions under the Rules of 1995 makes the former director responsible to pay the dues of the government. The absolute liability created under the Act and the Rules is of that person who is an assessee i.e. a person engaged in production or manufacture of any specified goods included in I schedule of the Act (now the new Central Excise Tariff). In this view of the matter, in our opinion none of the petitioners were and are liable to pay the alleged government dues either under the provisions of the Act or Rules of 1995.26. In view of the above findings, it is not necessary for us to deal with the alternate contention raised by Mr. Nankani. However, since both the parties have addressed us on that aspect in detail, we propose to deal with the submission made in this behalf. Mr. Nankani, in our opinion, is perfectly justified in contending that the order passed by the CEGAT in the case of Mr. S.P. Mittal binds the respondents since a specific finding has been recorded by the Tribunal holding that the order of confirming duty and imposing penalty was only against the company and not against the director Mr. S.P. Mittal. Consequently, his appeal was dismissed for want of locus standi. This order has been accepted by the Revenue. The order has become final and conclusive. The Supreme Court has explained the concept of res judicata in the case of Sulochana Amma v. Narayanan Nair [1995 (77) E.L.T. 785 (S.C.)]. The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, decided and became final, so that parties are not vexed twice over; vexatious litigation is put an end to and the valuable time of the Court is saved. It is based on public policy as well as private justice. The principle would very much apply, to all judicial proceedings whether civil or otherwise. It equally applies to quasi-judicial proceedings of the Tribunals other than the Civil Courts. In this view of the matter, the respondents cannot set up any demand against Mr. S.P. Mittal based on the order dated 22-6-2000 passed against the company - M/s. GTL. The reasons recorded by the CEGAT while rejecting appeal filed by Mr. S.P. Mittal holds good even in the case of Mr. K.T. Shah.”20. This Judgment only follows what has been held earlier and subsequently.21. The reliance on the Judgment in the case of the Employees State Insurance Corporation (supra) indicates that this decision of the Supreme Court was rendered while dealing with the provisions of a distinct statute – The Employees State Insurance Act, 1948. There Section 2(17)(i) & (iii), and Sections 40 and 41 outline the concept of a Principal employer. In the case of a private limited company having its factory and duly naming an occupier, as also having a Manager, it was still held that the provision is not applicable to the Directors and the company was held to be liable. In the event there being an occupier, such occupier would be personally liable. 22. We do not think that any assistance can be derived by Mr. Jetly from this Judgment or from the general principle that it is possible to pierce the veil of a corporate entity and find out whether it is a glorified partnership. In the present case, according to Mr. Jetly, the piercing of veil has been done and that is why notices have been issued. We are sorry we cannot accept his contention and for more than one reason. This conclusion must be clearly discernible from the orders in the adjudication proceedings, in the sense the show cause notices must be directed to the Director personally and in addition to the corporate entity. Secondly, such corporate entity together with the Director must be heard and the Director must be granted an opportunity to satisfy the Adjudicating Authority that insofar as the company and its business is concerned, the Director may, as a part and parcel of the Board, lay down broad policies and take decisions in relation thereto but the day-to-day business is not discharged by him. That is carried out by other salaried persons, duly appointed for that purpose. The responsibilities are fixed and it is they who have to discharge their obligations and duties by pointing out to the persons in charge of the finances or in the management of finances, so that the liabilities of the company can be met or dues payable by the company can be paid. Thus there is a team of officials which takes a decision in relation to the day-to-day activities and management so also administration of the policy decisions. Something more than this and proof of involvement not only in the day-to-day activities but all affairs will also have to be placed on record to establish the piercing of veil. The argument now built, only on the basis of this principle and referred in the affidavit in reply is thus of no avail to Mr. Jetly. On that basis, we cannot hold that the petitioner is also liable for the dues of the company.
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22. We do not think that any assistance can be derived by Mr. Jetly from this Judgment or from the general principle that it is possible to pierce the veil of a corporate entity and find out whether it is a glorified partnership. In the present case, according to Mr. Jetly, the piercing of veil has been done and that is why notices have been issued. We are sorry we cannot accept his contention and for more than one reason. This conclusion must be clearly discernible from the orders in the adjudication proceedings, in the sense the show cause notices must be directed to the Director personally and in addition to the corporate entity. Secondly, such corporate entity together with the Director must be heard and the Director must be granted an opportunity to satisfy the Adjudicating Authority that insofar as the company and its business is concerned, the Director may, as a part and parcel of the Board, lay down broad policies and take decisions in relation thereto but the day-to-day business is not discharged by him. That is carried out by other salaried persons, duly appointed for that purpose. The responsibilities are fixed and it is they who have to discharge their obligations and duties by pointing out to the persons in charge of the finances or in the management of finances, so that the liabilities of the company can be met or dues payable by the company can be paid. Thus there is a team of officials which takes a decision in relation to the day-to-day activities and management so also administration of the policy decisions. Something more than this and proof of involvement not only in the day-to-day activities but all affairs will also have to be placed on record to establish the piercing of veil. The argument now built, only on the basis of this principle and referred in the affidavit in reply is thus of no avail to Mr. Jetly. On that basis, we cannot hold that the petitioner is also liable for the dues of the company.
|
Parsram And Anr Vs. Shivchand And Ors | old State of Punjab. This shows that even when the subject of specification of Scheduled Castes engaged the attention of the President in 1966 he did not take the view that mochis should be classed together with chamars in so far as the State of Haryana, Punjab and the Union territory of Chandigarh were concerned. It is also clear that the question of inclusion of mochis in the scheduled castes was considered by him. Apart from this, there are two decisions of this Court which conclude the point. 5. In Basavalingappa v. D. Munichinnappa, 1965-1 SCR 316 = (AIR 1965 SC 1269 ) an election petition was filed challenging the election of the first respondent inter alia on the ground that he was not a member of any of the scheduled castes mentioned in the Constitution (Scheduled Castes) Order, 1950. Respondent No. 1 claimed that he belonged to the scheduled caste listed as Bhovi in the order. The appellant, on the other hand contended that respondent No. 1 was a Voddar by caste and that Voddar was not a scheduled caste specified in the order and consequently, he could not stand for election from a scheduled caste constituency. It was held by this Court that it was not open to anyone to seek for any modification in the order by producing evidence to show (for example) that though caste A alone was mentioned in the Order, caste B was also a part of Caste A, and as such to be deemed to be included in caste A. This Court also pointed out that "wherever one caste has another name it has been mentioned in brackets after it in the Order. Therefore, generally speaking, it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order." In the peculiar circumstances of this case, evidence was allowed to be led to identify the caste specified in the Order because the Order referred to a Scheduled Caste known as Bhovi in the Mysore State as it was before 1956 and therefore it had to be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the Order, when the Order mentioned the caste Bhovi as a scheduled caste. But when it was not disputed specifically that there was no caste known as Bhovi in the Mysore State before 1956, the only course open to courts was to find which caste was meant by Bhovi by taking evidence. 6. A point very similar to the one before us came up for consideration in this Court in Bhaiya Lal v. Harikrishen Singh, 1965-2 SCR 877 = (AIR 1965 SC 1557 ). There, the appellants election was challenged on the ground that he belonged to the Dohar caste and was not a chamar. Dealing with this point, it was stated by this Court:"....the plea that the Dohar caste is a sub-caste of the Chamar caste cannot be entertained in the present proceedings in virtue of the Constitution (Scheduled Castes) Order, 1950." Reference was then made to Article 34l of the Constitution, Cls. 1 and 2 and it was said:"In order to determine whether or not a particular caste is a scheduled caste within the meaning of Article 341, one has to look at the public notification issued by the President in that behalf. In the present case, the notification refers to Chamar, Jatav or Mochi and so in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chamar, Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub-caste of the Chamar caste, cannot be accepted. It appears to us that an inquiry of this kind would not be permissible having regard to the provisions contained in Article 341." These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazeteers and the glossaries on the Punjab castes and tribes to which reference was made at the Bar to find out whether mochi and chamar in some parts of the State at least meant the same caste although there might be some difference in the professions followed by their members, the main difference being that Chamars skin dead animals which mochis do not. However that may be, the question not being open to agitation by evidence and being one the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a mochi, he could still claim to belong to the scheduled caste of chamars and be allowed to contest an election on that basis. Quite a lot of evidence was adduced orally and also by documents before the learned trial Judge to show that Krishan Lal was a chamar and not a mochi. The learned Judge examined the evidence thoroughly and we do not propose to do the same again. In his view Krishan Lal was a mochi and not a chamar and we do not see any reason why we should come to any different conclusion. 7. Once we hold that it is not open to this Court to scrutinise whether a person who is properly described as a mochi also falls within the caste of chamars and can describe himself as such, the question of the impropriety of the rejection of his nomination paper based on such distinction disappears. In this case, Krishan Lal was found to be mochi and not a chamar and therefore his nomination paper was rightly rejected. He tried to prove by evidence that he was a chamar but he did not succeed therein. | 0[ds]After the reorganisation of territories and creation of new States by the said Act the Scheduled Castes Order was amended providing for the specification of Scheduled Castes for the new States and territories. The Constitution (Scheduled Castes) (Union Territories) Order of 1951 was also amended in 1966. As a result of the above changes, the final position with regard to the Scheduled Castes was as follows. Item No. 9 remained unaltered as regards the new States of Haryana and the Punjab. Chamars and Mochis were put in the same class as regards the Union territory of Delhi and Himachal Pradesh, while the position in the Union territory of Chandigarh remained the same as in the old State of Punjab. This shows that even when the subject of specification of Scheduled Castes engaged the attention of the President in 1966 he did not take the view that mochis should be classed together with chamars in so far as the State of Haryana, Punjab and the Union territory of Chandigarh were concerned. It is also clear that the question of inclusion of mochis in the scheduled castes was considered by him. Apart from this, there are two decisions of this Court which conclude the point7. Once we hold that it is not open to this Court to scrutinise whether a person who is properly described as a mochi also falls within the caste of chamars and can describe himself as such, the question of the impropriety of the rejection of his nomination paper based on such distinction disappears. In this case, Krishan Lal was found to be mochi and not a chamar and therefore his nomination paper was rightly rejected. He tried to prove by evidence that he was a chamar but he did not succeed therein. | 0 | 2,482 | 321 | ### Instruction:
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old State of Punjab. This shows that even when the subject of specification of Scheduled Castes engaged the attention of the President in 1966 he did not take the view that mochis should be classed together with chamars in so far as the State of Haryana, Punjab and the Union territory of Chandigarh were concerned. It is also clear that the question of inclusion of mochis in the scheduled castes was considered by him. Apart from this, there are two decisions of this Court which conclude the point. 5. In Basavalingappa v. D. Munichinnappa, 1965-1 SCR 316 = (AIR 1965 SC 1269 ) an election petition was filed challenging the election of the first respondent inter alia on the ground that he was not a member of any of the scheduled castes mentioned in the Constitution (Scheduled Castes) Order, 1950. Respondent No. 1 claimed that he belonged to the scheduled caste listed as Bhovi in the order. The appellant, on the other hand contended that respondent No. 1 was a Voddar by caste and that Voddar was not a scheduled caste specified in the order and consequently, he could not stand for election from a scheduled caste constituency. It was held by this Court that it was not open to anyone to seek for any modification in the order by producing evidence to show (for example) that though caste A alone was mentioned in the Order, caste B was also a part of Caste A, and as such to be deemed to be included in caste A. This Court also pointed out that "wherever one caste has another name it has been mentioned in brackets after it in the Order. Therefore, generally speaking, it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order." In the peculiar circumstances of this case, evidence was allowed to be led to identify the caste specified in the Order because the Order referred to a Scheduled Caste known as Bhovi in the Mysore State as it was before 1956 and therefore it had to be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the Order, when the Order mentioned the caste Bhovi as a scheduled caste. But when it was not disputed specifically that there was no caste known as Bhovi in the Mysore State before 1956, the only course open to courts was to find which caste was meant by Bhovi by taking evidence. 6. A point very similar to the one before us came up for consideration in this Court in Bhaiya Lal v. Harikrishen Singh, 1965-2 SCR 877 = (AIR 1965 SC 1557 ). There, the appellants election was challenged on the ground that he belonged to the Dohar caste and was not a chamar. Dealing with this point, it was stated by this Court:"....the plea that the Dohar caste is a sub-caste of the Chamar caste cannot be entertained in the present proceedings in virtue of the Constitution (Scheduled Castes) Order, 1950." Reference was then made to Article 34l of the Constitution, Cls. 1 and 2 and it was said:"In order to determine whether or not a particular caste is a scheduled caste within the meaning of Article 341, one has to look at the public notification issued by the President in that behalf. In the present case, the notification refers to Chamar, Jatav or Mochi and so in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chamar, Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub-caste of the Chamar caste, cannot be accepted. It appears to us that an inquiry of this kind would not be permissible having regard to the provisions contained in Article 341." These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazeteers and the glossaries on the Punjab castes and tribes to which reference was made at the Bar to find out whether mochi and chamar in some parts of the State at least meant the same caste although there might be some difference in the professions followed by their members, the main difference being that Chamars skin dead animals which mochis do not. However that may be, the question not being open to agitation by evidence and being one the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a mochi, he could still claim to belong to the scheduled caste of chamars and be allowed to contest an election on that basis. Quite a lot of evidence was adduced orally and also by documents before the learned trial Judge to show that Krishan Lal was a chamar and not a mochi. The learned Judge examined the evidence thoroughly and we do not propose to do the same again. In his view Krishan Lal was a mochi and not a chamar and we do not see any reason why we should come to any different conclusion. 7. Once we hold that it is not open to this Court to scrutinise whether a person who is properly described as a mochi also falls within the caste of chamars and can describe himself as such, the question of the impropriety of the rejection of his nomination paper based on such distinction disappears. In this case, Krishan Lal was found to be mochi and not a chamar and therefore his nomination paper was rightly rejected. He tried to prove by evidence that he was a chamar but he did not succeed therein.
### Response:
0
### Explanation:
After the reorganisation of territories and creation of new States by the said Act the Scheduled Castes Order was amended providing for the specification of Scheduled Castes for the new States and territories. The Constitution (Scheduled Castes) (Union Territories) Order of 1951 was also amended in 1966. As a result of the above changes, the final position with regard to the Scheduled Castes was as follows. Item No. 9 remained unaltered as regards the new States of Haryana and the Punjab. Chamars and Mochis were put in the same class as regards the Union territory of Delhi and Himachal Pradesh, while the position in the Union territory of Chandigarh remained the same as in the old State of Punjab. This shows that even when the subject of specification of Scheduled Castes engaged the attention of the President in 1966 he did not take the view that mochis should be classed together with chamars in so far as the State of Haryana, Punjab and the Union territory of Chandigarh were concerned. It is also clear that the question of inclusion of mochis in the scheduled castes was considered by him. Apart from this, there are two decisions of this Court which conclude the point7. Once we hold that it is not open to this Court to scrutinise whether a person who is properly described as a mochi also falls within the caste of chamars and can describe himself as such, the question of the impropriety of the rejection of his nomination paper based on such distinction disappears. In this case, Krishan Lal was found to be mochi and not a chamar and therefore his nomination paper was rightly rejected. He tried to prove by evidence that he was a chamar but he did not succeed therein.
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Padmaraja & Another Vs. Dhanavathi & Others | decree is not an award within the meaning of Section 36(6). In arriving at that conclusion, it relied on the decision of that Court in Parameshwari Hengsu and Others v. Venkappa Shetty and Others (1961 Mys LJ 686.). Parameshwari Hengsus case (supra) first came up for hearing before a Division Bench consisting of Sadasivayya and Mir Iqbal Husain, JJ. Sadasivayya, J., held that the expression "award" in Section 36(6) does not take in an award decree. But Iqbal Husain, J., differed from that view and opined that the term "award" includes also an ward decree. In view of that difference of opinion, the question whether the expression "award" includes an award decree was referred to Somnath Iyer, J. That learned judge agreed with the view taken by Sadasivayya, J. The decision in Parameshwari Hengsus case (supra), was binding on the bench which heard this case. Hence naturally that controversy was not again gone into by the High Court in this case. The learned counsel for the appellants challenged the correctness of the decision of the Mysore High Court in Parameshwari Hengsus case (supra). He contended that the expression "award" in Section 36(6) includes also an award decree. He urged that in the case of an award decree, the court merely accepts the award made and makes it a decree of the court and hence award decrees have also to be considered as awards for the purpose of Section 36(6). In examining the correctness of the conclusion reached by the Mysore High Court in Parameshwari Hengsus (supra), we must first examine the principle underlying Section 36(6). As mentioned earlier, the legislature was evidently anxious not to disturb certain permanent arrangements made in the kutumbas either by means of any registered family settlements or by awards. That being the case one fails to understand why the legislature should be held to have excluded from the scope of Section 36(6) award decrees while bringing within its scope awards. Dealing with this aspect both Sadasivayya, J., and Somnath Iyer, J., opined that "it is possible that with a view not to disturb finality resulting from a decree (of whatever kind) that the legislature intentionally refrained from referring to decrees in sub-section (6) thereby confining the scope of that sub-section only to the registered family settlements and awards expressly mentioned therein. If that be so, no court would be justified in equating an award to the decree passed on it"13. This reasoning appears to us to be fallacious. It be remembered the only decrees that could possibly have been included within the scope of Section 36(6) was award decrees. We have earlier noticed that compulsory partition was not permissible under the Aliyasantana law. Hence there could not have been any partition decrees, nor could there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in Aliyasantana kutumbas. We can think of no decree regulating the affairs of kutumba which cannot be disturbed under the Act. We agree with those learned judges that the principle underlying Section 36(6) was not to disturb the finality of arrangements made. That very principle runs counter to the reasoning adopted by those learned judges. If permanency of an arrangement is the principle underlying Section 36(6) that permanency of should be available in a larger measure to an award decree. On the other had if the view taken by those learned judges is correct, while Section 36(6) provides permanency for some awards, no such permanency is available to any award decree. Parties could enforce partition ignoring award decree while they are bound by awards. This could hardly have been the intention of the legislature. There is yet another compelling reason not to accept the majority view in Parameshwari Hengsus case (supra). After the coming into force of the Arbitration Act, 1940, all awards had to be compulsorily made decrees of the courts if they were to have any force. The Act came into force in 1949. Many awards coming within the scope of Section 36(6) would have been made between 1940 and 1949. The legislature would not have denied to those awards the benefit of Sections 36(6). The basis of every award decree is an award decree is an award. Evidently the legislature by using the expression "award" intended to include both awards simpliciter as well as awards which had been made the decrees of courts. Whether we consider the principle underlying Section 36(6) or the language of Section 36(6), we see no justification to exclude award decree from the scope of Section 36(6). In our opinion Parameshwari Hengsus case (supra), in so far as it interpreted Section Section 36(6) has not been correctly decided. But that conclusion of ours does not help the appellants. One of the conditions that are necessary to be satisfied before a deed can be deemed to be a partition under Section 36(6) is that is must be shown that all the major members of the kutumba were parties to it. Admittedly Brahmiah did not join the mutchallika A-1 on the strength of which Ext. A-2, was rendered. In other words he was not a party to the award. But it was said on behalf of the appellants - the same view was taken by the learned trial judge that Brahmiah had acquiesced in the arrangements made under Ext. A-2. A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does not become a party to the arrangement. Herein we are dealing with a deemed partition and not an actual partition. Before an arrangement can be deemed to be a partition under Section 36(6), all the conditions prescribed under that provision should be fully satisfied. In such a case, substantial compliance with the provision is not sufficient14. As we are of the opinion that all the major members of the kutumba were not parties to Ex. A-2, it is not necessary to examine whether the remaining conditions prescribed under Section 36(6) were satisfied. | 0[ds]12. Evidently the legislature wanted to deem certain deeds under which perpetual arrangement had been made in the past for the maintenance of all the kavarus of a kutumba as partitions. The requirements of Sections 36(6) have been laid down by this Court as seen earlier in Gummanna Shettys case (supra). Therefore all that we have to see is whether the tests laid down by this Court in that decision are satisfied. The High Court having come to the conclusion that the first test was not satisfied rejected the contention of the plaintiffs that the deed Ext. A-2 comes within the scope of Section 36(6). It came to the conclusion that an award decree is not an award within the meaning of Section 36(6). In arriving at that conclusion, it relied on the decision of that Court in Parameshwari Hengsu and Others v. Venkappa Shetty and Others (1961 Mys LJ 686.). Parameshwari Hengsus case (supra) first came up for hearing before a Division Bench consisting of Sadasivayya and Mir Iqbal Husain, JJ. Sadasivayya, J., held that the expression "award" in Section 36(6) does not take in an award decree. But Iqbal Husain, J., differed from that view and opined that the term "award" includes also an ward decree. In view of that difference of opinion, the question whether the expression "award" includes an award decree was referred to Somnath Iyer, J. That learned judge agreed with the view taken by Sadasivayya, J. The decision in Parameshwari Hengsus case (supra), was binding on the bench which heard this case. Hence naturally that controversy was not again gone into by the High Court in this case. The learned counsel for the appellants challenged the correctness of the decision of the Mysore High Court in Parameshwari Hengsus case (supra). He contended that the expression "award" in Section 36(6) includes also an award decree. He urged that in the case of an award decree, the court merely accepts the award made and makes it a decree of the court and hence award decrees have also to be considered as awards for the purpose of Section 36(6). In examining the correctness of the conclusion reached by the Mysore High Court in Parameshwari Hengsus (supra), we must first examine the principle underlying Section 36(6). As mentioned earlier, the legislature was evidently anxious not to disturb certain permanent arrangements made in the kutumbas either by means of any registered family settlements or by awards. That being the case one fails to understand why the legislature should be held to have excluded from the scope of Section 36(6) award decrees while bringing within its scope awards. Dealing with this aspect both Sadasivayya, J., and Somnath Iyer, J., opined that "it is possible that with a view not to disturb finality resulting from a decree (of whatever kind) that the legislature intentionally refrained from referring to decrees in sub-section (6) thereby confining the scope of that sub-section only to the registered family settlements and awards expressly mentioned therein. If that be so, no court would be justified in equating an award to the decree passed on it"13. This reasoning appears to us to be fallacious. It be remembered the only decrees that could possibly have been included within the scope of Section 36(6) was award decrees. We have earlier noticed that compulsory partition was not permissible under the Aliyasantana law. Hence there could not have been any partition decrees, nor could there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in Aliyasantana kutumbas. We can think of no decree regulating the affairs of kutumba which cannot be disturbed under the Act. We agree with those learned judges that the principle underlying Section 36(6) was not to disturb the finality of arrangements made. That very principle runs counter to the reasoning adopted by those learned judges. If permanency of an arrangement is the principle underlying Section 36(6) that permanency of should be available in a larger measure to an award decree. On the other had if the view taken by those learned judges is correct, while Section 36(6) provides permanency for some awards, no such permanency is available to any award decree. Parties could enforce partition ignoring award decree while they are bound by awards. This could hardly have been the intention of the legislature. There is yet another compelling reason not to accept the majority view in Parameshwari Hengsus case (supra). After the coming into force ofthe Arbitration Act, 1940, all awards had to be compulsorily made decrees of the courts if they were to have any force. The Act came into force in 1949. Many awards coming within the scope of Section 36(6) would have been made between 1940 and 1949. The legislature would not have denied to those awards the benefit of Sections 36(6). The basis of every award decree is an award decree is an award. Evidently the legislature by using the expression "award" intended to include both awards simpliciter as well as awards which had been made the decrees of courts. Whether we consider the principle underlying Section 36(6) or the language of Section 36(6), we see no justification to exclude award decree from the scope of Section 36(6). In our opinion Parameshwari Hengsus case (supra), in so far as it interpreted Section Section 36(6) has not been correctly decided. But that conclusion of ours does not help the appellants. One of the conditions that are necessary to be satisfied before a deed can be deemed to be a partition under Section 36(6) is that is must be shown that all the major members of the kutumba were parties to it. Admittedly Brahmiah did not join the mutchallika A-1 on the strength of which Ext. A-2, was rendered. In other words he was not a party to the award. But it was said on behalf of the appellants - the same view was taken by the learned trial judge that Brahmiah had acquiesced in the arrangements made under Ext. A-2. A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does not become a party to the arrangement. Herein we are dealing with a deemed partition and not an actual partition. Before an arrangement can be deemed to be a partition under Section 36(6), all the conditions prescribed under that provision should be fully satisfied. In such a case, substantial compliance with the provision is not sufficient14. As we are of the opinion that all the major members of the kutumba were not parties to Ex. A-2, it is not necessary to examine whether the remaining conditions prescribed under Section 36(6) were4. The findings of the High Court as regards the true nature of Ext. A-2 were challenged before us on behalf of the appellants by Mr. K. N. Bhatt. Before proceeding to consider the contentions of the parties, it is necessary to refer, in brief, to the customary Aliyasantana law. Under that law inheritance is traced through the female line. Under that law, as interpreted by court partition was impermissible except with the consent of all family. The senior-most member of the family be it a male or a female was a Yejman or Yejmanthi of the family. With the passage of time, the members of the Aliyasantana kutumbas increased and kutumbas became unwieldy and joint living became intolerable. In order to mitigate these difficulties, three types of arrangements came to be made in those kutumbas. By and large the Yejman or Yejmanthi of the family made maintenance allotments (maintenance under the Aliyasantana is a mode of participation in the family properties). This type of arrangement was purely temporary in character. It was open to Yejman or Yejmanthi to resume the properties allotted for maintenance to the junior members and make alternative arrangements for their maintenance. Another type of arrangement that came to be made was permanent arrangement for maintenance. This was ordinarily done on kavaru basis. Under this arrangement, jointness of the family was kept intact but arrangement was made for separate living and separate management of kutumba properties on a permanent basis. Such arrangements ordinarily were not capable of being disturbed except with the consent of all the adult members of the kutumba. Lastly, there are few cases of partition with the consent or concurrence of all the adult members of the kutumba. Hence when the Act came into force in addition to joint living by the members of the kutumbas, aforementioned types of arrangements were in existence in various kutumbas. Under Section 35 of the Act power was given to kavarus, santhathi or nissanthathi to claim partition but those permanent arrangements which came within the scope of Section 36(6) were deemed to be partitions despite the fact that under those arrangements the jointness of the kutumba was kept intact. In Gummanna Shetty and Others v. Nagaveniemma (1967 3 SCR 932 : AIR 1967 SC 1595 : 1968 1 SCJ 269.), this Court while dealing with an arrangement in a Aliyasantana family entered into in the year 1900, observed"In 1900, when this deed was executed, one or more members of a joint family governed by the Aliyasantana law of inheritance had no right to claim partition of the joint family properties but by a family arrangement entered into with the consent of all its members, the properties could be divided and separately enjoyed. In such families, an arrangement for separate possession and enjoyment without actual disruption of the family was common. An arrangement for separate enjoyment did not effect a disruption of the family, unless it completely extinguished the community of interest in the family properties.Evidently the legislature wanted to deem certain deeds under which perpetual arrangement had been made in the past for the maintenance of all the kavarus of a kutumba as partitions. The requirements of Sections 36(6) have been laid down by this Court as seen earlier in Gummanna Shettys case (supra). Therefore all that we have to see is whether the tests laid down by this Court in that decision are satisfied. The High Court having come to the conclusion that the first test was not satisfied rejected the contention of the plaintiffs that the deed Ext. A-2 comes within the scope of Section 36(6). It came to the conclusion that an award decree is not an award within the meaning of Section 36(6). In arriving at that conclusion, it relied on the decision of that Court in Parameshwari Hengsu and Others v. Venkappa Shetty and Others (1961 Mys LJ 686.). Parameshwari Hengsus case (supra) first came up for hearing before a Division Bench consisting of Sadasivayya and Mir Iqbal Husain, JJ. Sadasivayya, J., held that the expression "award" in Section 36(6) does not take in an award decree. But Iqbal Husain, J., differed from that view and opined that the term "award" includes also an ward decree. In view of that difference of opinion, the question whether the expression "award" includes an award decree was referred to Somnath Iyer, J. That learned judge agreed with the view taken by Sadasivayya, J. The decision in Parameshwari Hengsus case (supra), was binding on the bench which heard this case. Hence naturally that controversy was not again gone into by the High Court in this case. The learned counsel for the appellants challenged the correctness of the decision of the Mysore High Court in Parameshwari Hengsus case (supra). He contended that the expression "award" in Section 36(6) includes also an award decree. He urged that in the case of an award decree, the court merely accepts the award made and makes it a decree of the court and hence award decrees have also to be considered as awards for the purpose of Section 36(6). In examining the correctness of the conclusion reached by the Mysore High Court in Parameshwari Hengsus (supra), we must first examine the principle underlying Section 36(6). As mentioned earlier, the legislature was evidently anxious not to disturb certain permanent arrangements made in the kutumbas either by means of any registered family settlements or by awards. That being the case one fails to understand why the legislature should be held to have excluded from the scope of Section 36(6) award decrees while bringing within its scope awards. Dealing with this aspect both Sadasivayya, J., and Somnath Iyer, J., opined that "it is possible that with a view not to disturb finality resulting from a decree (of whatever kind) that the legislature intentionally refrained from referring to decrees in sub-section (6) thereby confining the scope of that sub-section only to the registered family settlements and awards expressly mentioned therein. If that be so, no court would be justified in equating an award to the decree passed on it"13. This reasoning appears to us to be fallacious. It be remembered the only decrees that could possibly have been included within the scope of Section 36(6) was award decrees. We have earlier noticed that compulsory partition was not permissible under the Aliyasantana law. Hence there could not have been any partition decrees, nor could there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in Aliyasantana kutumbas. We can think of no decree regulating the affairs of kutumba which cannot be disturbed under the Act. We agree with those learned judges that the principle underlying Section 36(6) was not to disturb the finality of arrangements made. That very principle runs counter to the reasoning adopted by those learned judges. If permanency of an arrangement is the principle underlying Section 36(6) that permanency of should be available in a larger measure to an award decree. On the other had if the view taken by those learned judges is correct, while Section 36(6) provides permanency for some awards, no such permanency is available to any award decree. Parties could enforce partition ignoring award decree while they are bound by awards. This could hardly have been the intention of the legislature. There is yet another compelling reason not to accept the majority view in Parameshwari Hengsus case (supra). After the coming into force ofthe Arbitration Act, 1940, all awards had to be compulsorily made decrees of the courts if they were to have any force. The Act came into force in 1949. Many awards coming within the scope of Section 36(6) would have been made between 1940 and 1949. The legislature would not have denied to those awards the benefit of Sections 36(6). The basis of every award decree is an award decree is an award. Evidently the legislature by using the expression "award" intended to include both awards simpliciter as well as awards which had been made the decrees of courts. Whether we consider the principle underlying Section 36(6) or the language of Section 36(6), we see no justification to exclude award decree from the scope of Section 36(6). In our opinion Parameshwari Hengsus case (supra), in so far as it interpreted Section Section 36(6) has not been correctly decided. But that conclusion of ours does not help the appellants. One of the conditions that are necessary to be satisfied before a deed can be deemed to be a partition under Section 36(6) is that is must be shown that all the major members of the kutumba were parties to it. Admittedly Brahmiah did not join the mutchallika A-1 on the strength of which Ext. A-2, was rendered. In other words he was not a party to the award. But it was said on behalf of the appellants - the same view was taken by the learned trial judge that Brahmiah had acquiesced in the arrangements made under Ext. A-2. A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does not become a party to the arrangement. Herein we are dealing with a deemed partition and not an actual partition. Before an arrangement can be deemed to be a partition under Section 36(6), all the conditions prescribed under that provision should be fully satisfied. In such a case, substantial compliance with the provision is not sufficient14. As we are of the opinion that all the major members of the kutumba were not parties to Ex. A-2, it is not necessary to examine whether the remaining conditions prescribed under Section 36(6) were | 0 | 3,654 | 3,130 | ### 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:
decree is not an award within the meaning of Section 36(6). In arriving at that conclusion, it relied on the decision of that Court in Parameshwari Hengsu and Others v. Venkappa Shetty and Others (1961 Mys LJ 686.). Parameshwari Hengsus case (supra) first came up for hearing before a Division Bench consisting of Sadasivayya and Mir Iqbal Husain, JJ. Sadasivayya, J., held that the expression "award" in Section 36(6) does not take in an award decree. But Iqbal Husain, J., differed from that view and opined that the term "award" includes also an ward decree. In view of that difference of opinion, the question whether the expression "award" includes an award decree was referred to Somnath Iyer, J. That learned judge agreed with the view taken by Sadasivayya, J. The decision in Parameshwari Hengsus case (supra), was binding on the bench which heard this case. Hence naturally that controversy was not again gone into by the High Court in this case. The learned counsel for the appellants challenged the correctness of the decision of the Mysore High Court in Parameshwari Hengsus case (supra). He contended that the expression "award" in Section 36(6) includes also an award decree. He urged that in the case of an award decree, the court merely accepts the award made and makes it a decree of the court and hence award decrees have also to be considered as awards for the purpose of Section 36(6). In examining the correctness of the conclusion reached by the Mysore High Court in Parameshwari Hengsus (supra), we must first examine the principle underlying Section 36(6). As mentioned earlier, the legislature was evidently anxious not to disturb certain permanent arrangements made in the kutumbas either by means of any registered family settlements or by awards. That being the case one fails to understand why the legislature should be held to have excluded from the scope of Section 36(6) award decrees while bringing within its scope awards. Dealing with this aspect both Sadasivayya, J., and Somnath Iyer, J., opined that "it is possible that with a view not to disturb finality resulting from a decree (of whatever kind) that the legislature intentionally refrained from referring to decrees in sub-section (6) thereby confining the scope of that sub-section only to the registered family settlements and awards expressly mentioned therein. If that be so, no court would be justified in equating an award to the decree passed on it"13. This reasoning appears to us to be fallacious. It be remembered the only decrees that could possibly have been included within the scope of Section 36(6) was award decrees. We have earlier noticed that compulsory partition was not permissible under the Aliyasantana law. Hence there could not have been any partition decrees, nor could there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in Aliyasantana kutumbas. We can think of no decree regulating the affairs of kutumba which cannot be disturbed under the Act. We agree with those learned judges that the principle underlying Section 36(6) was not to disturb the finality of arrangements made. That very principle runs counter to the reasoning adopted by those learned judges. If permanency of an arrangement is the principle underlying Section 36(6) that permanency of should be available in a larger measure to an award decree. On the other had if the view taken by those learned judges is correct, while Section 36(6) provides permanency for some awards, no such permanency is available to any award decree. Parties could enforce partition ignoring award decree while they are bound by awards. This could hardly have been the intention of the legislature. There is yet another compelling reason not to accept the majority view in Parameshwari Hengsus case (supra). After the coming into force of the Arbitration Act, 1940, all awards had to be compulsorily made decrees of the courts if they were to have any force. The Act came into force in 1949. Many awards coming within the scope of Section 36(6) would have been made between 1940 and 1949. The legislature would not have denied to those awards the benefit of Sections 36(6). The basis of every award decree is an award decree is an award. Evidently the legislature by using the expression "award" intended to include both awards simpliciter as well as awards which had been made the decrees of courts. Whether we consider the principle underlying Section 36(6) or the language of Section 36(6), we see no justification to exclude award decree from the scope of Section 36(6). In our opinion Parameshwari Hengsus case (supra), in so far as it interpreted Section Section 36(6) has not been correctly decided. But that conclusion of ours does not help the appellants. One of the conditions that are necessary to be satisfied before a deed can be deemed to be a partition under Section 36(6) is that is must be shown that all the major members of the kutumba were parties to it. Admittedly Brahmiah did not join the mutchallika A-1 on the strength of which Ext. A-2, was rendered. In other words he was not a party to the award. But it was said on behalf of the appellants - the same view was taken by the learned trial judge that Brahmiah had acquiesced in the arrangements made under Ext. A-2. A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does not become a party to the arrangement. Herein we are dealing with a deemed partition and not an actual partition. Before an arrangement can be deemed to be a partition under Section 36(6), all the conditions prescribed under that provision should be fully satisfied. In such a case, substantial compliance with the provision is not sufficient14. As we are of the opinion that all the major members of the kutumba were not parties to Ex. A-2, it is not necessary to examine whether the remaining conditions prescribed under Section 36(6) were satisfied.
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0
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an award decree is not an award within the meaning of Section 36(6). In arriving at that conclusion, it relied on the decision of that Court in Parameshwari Hengsu and Others v. Venkappa Shetty and Others (1961 Mys LJ 686.). Parameshwari Hengsus case (supra) first came up for hearing before a Division Bench consisting of Sadasivayya and Mir Iqbal Husain, JJ. Sadasivayya, J., held that the expression "award" in Section 36(6) does not take in an award decree. But Iqbal Husain, J., differed from that view and opined that the term "award" includes also an ward decree. In view of that difference of opinion, the question whether the expression "award" includes an award decree was referred to Somnath Iyer, J. That learned judge agreed with the view taken by Sadasivayya, J. The decision in Parameshwari Hengsus case (supra), was binding on the bench which heard this case. Hence naturally that controversy was not again gone into by the High Court in this case. The learned counsel for the appellants challenged the correctness of the decision of the Mysore High Court in Parameshwari Hengsus case (supra). He contended that the expression "award" in Section 36(6) includes also an award decree. He urged that in the case of an award decree, the court merely accepts the award made and makes it a decree of the court and hence award decrees have also to be considered as awards for the purpose of Section 36(6). In examining the correctness of the conclusion reached by the Mysore High Court in Parameshwari Hengsus (supra), we must first examine the principle underlying Section 36(6). As mentioned earlier, the legislature was evidently anxious not to disturb certain permanent arrangements made in the kutumbas either by means of any registered family settlements or by awards. That being the case one fails to understand why the legislature should be held to have excluded from the scope of Section 36(6) award decrees while bringing within its scope awards. Dealing with this aspect both Sadasivayya, J., and Somnath Iyer, J., opined that "it is possible that with a view not to disturb finality resulting from a decree (of whatever kind) that the legislature intentionally refrained from referring to decrees in sub-section (6) thereby confining the scope of that sub-section only to the registered family settlements and awards expressly mentioned therein. If that be so, no court would be justified in equating an award to the decree passed on it"13. This reasoning appears to us to be fallacious. It be remembered the only decrees that could possibly have been included within the scope of Section 36(6) was award decrees. We have earlier noticed that compulsory partition was not permissible under the Aliyasantana law. Hence there could not have been any partition decrees, nor could there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in Aliyasantana kutumbas. We can think of no decree regulating the affairs of kutumba which cannot be disturbed under the Act. We agree with those learned judges that the principle underlying Section 36(6) was not to disturb the finality of arrangements made. That very principle runs counter to the reasoning adopted by those learned judges. If permanency of an arrangement is the principle underlying Section 36(6) that permanency of should be available in a larger measure to an award decree. On the other had if the view taken by those learned judges is correct, while Section 36(6) provides permanency for some awards, no such permanency is available to any award decree. Parties could enforce partition ignoring award decree while they are bound by awards. This could hardly have been the intention of the legislature. There is yet another compelling reason not to accept the majority view in Parameshwari Hengsus case (supra). After the coming into force ofthe Arbitration Act, 1940, all awards had to be compulsorily made decrees of the courts if they were to have any force. The Act came into force in 1949. Many awards coming within the scope of Section 36(6) would have been made between 1940 and 1949. The legislature would not have denied to those awards the benefit of Sections 36(6). The basis of every award decree is an award decree is an award. Evidently the legislature by using the expression "award" intended to include both awards simpliciter as well as awards which had been made the decrees of courts. Whether we consider the principle underlying Section 36(6) or the language of Section 36(6), we see no justification to exclude award decree from the scope of Section 36(6). In our opinion Parameshwari Hengsus case (supra), in so far as it interpreted Section Section 36(6) has not been correctly decided. But that conclusion of ours does not help the appellants. One of the conditions that are necessary to be satisfied before a deed can be deemed to be a partition under Section 36(6) is that is must be shown that all the major members of the kutumba were parties to it. Admittedly Brahmiah did not join the mutchallika A-1 on the strength of which Ext. A-2, was rendered. In other words he was not a party to the award. But it was said on behalf of the appellants - the same view was taken by the learned trial judge that Brahmiah had acquiesced in the arrangements made under Ext. A-2. A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does not become a party to the arrangement. Herein we are dealing with a deemed partition and not an actual partition. Before an arrangement can be deemed to be a partition under Section 36(6), all the conditions prescribed under that provision should be fully satisfied. In such a case, substantial compliance with the provision is not sufficient14. As we are of the opinion that all the major members of the kutumba were not parties to Ex. A-2, it is not necessary to examine whether the remaining conditions prescribed under Section 36(6) were
|
Jibon Chandra Sarma Doloi Vs. Anandi Ram Kalita & Others | fully carried out by General Jenkins. Instead of treating all lakhiraj lands as being on the same footing and liable to assessment the General drew a broad distinction between debotter lands which were appropriated to temples and lands known as brahmottar or dharmottar, that is to say lands devoted to some religious purpose not being temple lands. In respect of the former he confirmed the grants revenue-free. In respect of the latter he simply confirmed the grantees in possession subject to the payment of Mr. Scotts favourable rates until Captain Bogles enquiry was terminated and final orders passed in that behalf.10. It is curious that though the enquiry of Captain Bogle went on for many years it was not formally completed till the year 1860. By that time the instructions issued by the Government of India at the commencement of the enquiry were lost sight of. No report was submitted to the Government by the enquiring officer and final orders of the Government of India were not obtained on the question whether the holders of brahmottar and dharmottar lands were to hold their lands at the rates fixed by General Jenkins. In consequence holders of these lands have ever since continued to hold at half rates without any formal decision by the Government of India having been reached in that behalf. Subsequently the holders rights to continue to hold the lands at the said rates have been recognised and their holdings have been declared to be heritable and transferable by the Government of India in 1879.11. This summary of the history of these lands which is to be found in the introduction to the Assam Land Revenue Manual shows that Nisf-khirajdar of the present day "is ordinarily a person whose lands were claimed by his ancestors revenue-free on the ground that they were granted by the Assam Rajas for some religious or charitable purpose". It appears that the word Nisf-khiraj was invented for the first time in 1871 and it applied to all estates which paid half the ordinary revenue rates. This word was presumably invented to avoid confusion caused by the use of the word lakhiraj which had been applied to them prior to 1871.12. The history of this tenure is similarly stated in the Government Gazette relating to Assam as well as by Baden-Powell (vol. III, p. 406 following).13. At this stage it would be necessary to refer to the relevant provisions of Regulation 1 of 1886. It is called the Assam Land and Revenue Regulation of the said year. Section 3(g) of this Regulation defines land holder as meaning any person deemed to have acquired the status of a land holder under S. 8; while S. 8(1) provides, inter alia, that any person who has, before the commencement of this Regulation, held immediately under the Government for ten years continuously any land not included either in a permanently settled estate, or in a revenue-free estate, and who has during that period paid to the Government the revenue due thereon or held the same under an express exemption from revenue, shall be deemed to have acquired the status of a land holder in respect of the land. That takes us to S. 9 which provides that a land holder shall have a permanent heritable and transferable right of use and occupancy in his land subject to the provisions contained in cls. (a), (b) and (c) of the said section. It is unnecessary to refer to the said exceptions. It would thus be clear, and indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under S. 8(1)(a) and became land holders under S. 3(g). The inevitable consequence of this position is that S. 9 applies to them and their rights in the lands in their occupation are statutorily recognised to be permanent, hereitable and transferable. This statutory position is consistent with the declaration made by the Government of India in 1879, and in view of this clear statutory position it would be difficult to sustain the plea that the lands in question are burdened with the special condition that they can be transferred only to Bardeuries and not to any strangers outside the group. As the High Court has found, and that is no longer is dispute, these lands are described as brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore, it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restriction. This aspect of the matter was completely ignored by the trial court and the appellate court and so the High Court was right in correcting the error which had crept into the concurrent decisions of the courts below.14. Besides, the High court was also right in holding that in a case of this kind where the appellant urged that the lands could be alienated only to a specified class of persons, the onus was on the appellant and not on the respondents to prove the contrary. Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question. That was another infirmity in their decision. It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory, and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question. We are also satisfied that the declaration granted by the District Court was futile. Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained. | 0[ds]7. It appears that prior to the conquest of Assam under the previous regime the predecessors in interest of the then owners of Nisf-khiraj estates held their lands revenue-free and called themselves lakhirajdars.It appears that the instructions issued by the Government were not fully carried out by General Jenkins. Instead of treating all lakhiraj lands as being on the same footing and liable to assessment the General drew a broad distinction between debotter lands which were appropriated to temples and lands known as brahmottar or dharmottar, that is to say lands devoted to some religious purpose not being temple lands.This summary of the history of these lands which is to be found in the introduction to the Assam Land Revenue Manual shows that Nisf-khirajdar of the present day "is ordinarily a person whose lands were claimed by his ancestors revenue-free on the ground that they were granted by the Assam Rajas for some religious or charitable purpose". It appears that the word Nisf-khiraj was invented for the first time in 1871 and it applied to all estates which paid half the ordinary revenue rates. This word was presumably invented to avoid confusion caused by the use of the word lakhiraj which had been applied to them prior to 1871.It is unnecessary to refer to the said exceptions. It would thus be clear, and indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under S. 8(1)(a) and became land holders under S. 3(g). The inevitable consequence of this position is that S. 9 applies to them and their rights in the lands in their occupation are statutorily recognised to be permanent, hereitable and transferable. This statutory position is consistent with the declaration made by the Government of India in 1879, and in view of this clear statutory position it would be difficult to sustain the plea that the lands in question are burdened with the special condition that they can be transferred only to Bardeuries and not to any strangers outside the group. As the High Court has found, and that is no longer is dispute, these lands are described as brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore, it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restriction. This aspect of the matter was completely ignored by the trial court and the appellate court and so the High Court was right in correcting the error which had crept into the concurrent decisions of the courts below.14. Besides, the High court was also right in holding that in a case of this kind where the appellant urged that the lands could be alienated only to a specified class of persons, the onus was on the appellant and not on the respondents to prove the contrary. Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question. That was another infirmity in their decision. It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory, and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question. We are also satisfied that the declaration granted by the District Court was futile. Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained. | 0 | 2,733 | 685 | ### Instruction:
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fully carried out by General Jenkins. Instead of treating all lakhiraj lands as being on the same footing and liable to assessment the General drew a broad distinction between debotter lands which were appropriated to temples and lands known as brahmottar or dharmottar, that is to say lands devoted to some religious purpose not being temple lands. In respect of the former he confirmed the grants revenue-free. In respect of the latter he simply confirmed the grantees in possession subject to the payment of Mr. Scotts favourable rates until Captain Bogles enquiry was terminated and final orders passed in that behalf.10. It is curious that though the enquiry of Captain Bogle went on for many years it was not formally completed till the year 1860. By that time the instructions issued by the Government of India at the commencement of the enquiry were lost sight of. No report was submitted to the Government by the enquiring officer and final orders of the Government of India were not obtained on the question whether the holders of brahmottar and dharmottar lands were to hold their lands at the rates fixed by General Jenkins. In consequence holders of these lands have ever since continued to hold at half rates without any formal decision by the Government of India having been reached in that behalf. Subsequently the holders rights to continue to hold the lands at the said rates have been recognised and their holdings have been declared to be heritable and transferable by the Government of India in 1879.11. This summary of the history of these lands which is to be found in the introduction to the Assam Land Revenue Manual shows that Nisf-khirajdar of the present day "is ordinarily a person whose lands were claimed by his ancestors revenue-free on the ground that they were granted by the Assam Rajas for some religious or charitable purpose". It appears that the word Nisf-khiraj was invented for the first time in 1871 and it applied to all estates which paid half the ordinary revenue rates. This word was presumably invented to avoid confusion caused by the use of the word lakhiraj which had been applied to them prior to 1871.12. The history of this tenure is similarly stated in the Government Gazette relating to Assam as well as by Baden-Powell (vol. III, p. 406 following).13. At this stage it would be necessary to refer to the relevant provisions of Regulation 1 of 1886. It is called the Assam Land and Revenue Regulation of the said year. Section 3(g) of this Regulation defines land holder as meaning any person deemed to have acquired the status of a land holder under S. 8; while S. 8(1) provides, inter alia, that any person who has, before the commencement of this Regulation, held immediately under the Government for ten years continuously any land not included either in a permanently settled estate, or in a revenue-free estate, and who has during that period paid to the Government the revenue due thereon or held the same under an express exemption from revenue, shall be deemed to have acquired the status of a land holder in respect of the land. That takes us to S. 9 which provides that a land holder shall have a permanent heritable and transferable right of use and occupancy in his land subject to the provisions contained in cls. (a), (b) and (c) of the said section. It is unnecessary to refer to the said exceptions. It would thus be clear, and indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under S. 8(1)(a) and became land holders under S. 3(g). The inevitable consequence of this position is that S. 9 applies to them and their rights in the lands in their occupation are statutorily recognised to be permanent, hereitable and transferable. This statutory position is consistent with the declaration made by the Government of India in 1879, and in view of this clear statutory position it would be difficult to sustain the plea that the lands in question are burdened with the special condition that they can be transferred only to Bardeuries and not to any strangers outside the group. As the High Court has found, and that is no longer is dispute, these lands are described as brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore, it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restriction. This aspect of the matter was completely ignored by the trial court and the appellate court and so the High Court was right in correcting the error which had crept into the concurrent decisions of the courts below.14. Besides, the High court was also right in holding that in a case of this kind where the appellant urged that the lands could be alienated only to a specified class of persons, the onus was on the appellant and not on the respondents to prove the contrary. Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question. That was another infirmity in their decision. It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory, and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question. We are also satisfied that the declaration granted by the District Court was futile. Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained.
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7. It appears that prior to the conquest of Assam under the previous regime the predecessors in interest of the then owners of Nisf-khiraj estates held their lands revenue-free and called themselves lakhirajdars.It appears that the instructions issued by the Government were not fully carried out by General Jenkins. Instead of treating all lakhiraj lands as being on the same footing and liable to assessment the General drew a broad distinction between debotter lands which were appropriated to temples and lands known as brahmottar or dharmottar, that is to say lands devoted to some religious purpose not being temple lands.This summary of the history of these lands which is to be found in the introduction to the Assam Land Revenue Manual shows that Nisf-khirajdar of the present day "is ordinarily a person whose lands were claimed by his ancestors revenue-free on the ground that they were granted by the Assam Rajas for some religious or charitable purpose". It appears that the word Nisf-khiraj was invented for the first time in 1871 and it applied to all estates which paid half the ordinary revenue rates. This word was presumably invented to avoid confusion caused by the use of the word lakhiraj which had been applied to them prior to 1871.It is unnecessary to refer to the said exceptions. It would thus be clear, and indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under S. 8(1)(a) and became land holders under S. 3(g). The inevitable consequence of this position is that S. 9 applies to them and their rights in the lands in their occupation are statutorily recognised to be permanent, hereitable and transferable. This statutory position is consistent with the declaration made by the Government of India in 1879, and in view of this clear statutory position it would be difficult to sustain the plea that the lands in question are burdened with the special condition that they can be transferred only to Bardeuries and not to any strangers outside the group. As the High Court has found, and that is no longer is dispute, these lands are described as brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore, it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restriction. This aspect of the matter was completely ignored by the trial court and the appellate court and so the High Court was right in correcting the error which had crept into the concurrent decisions of the courts below.14. Besides, the High court was also right in holding that in a case of this kind where the appellant urged that the lands could be alienated only to a specified class of persons, the onus was on the appellant and not on the respondents to prove the contrary. Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question. That was another infirmity in their decision. It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory, and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question. We are also satisfied that the declaration granted by the District Court was futile. Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained.
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Bhubaneshwar Singh Vs. Union Of India | declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A courts decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statue or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law." * The same view has been expressed in the cases of West Ramnad Electric Distribution Co. Ltd. v. State of Madras Udai Ram Sharma v. Union of India , Tirath Ram Rajindra Nath v. State of U.P., Krishna Chandra Gangopadhyaya v. Union of India, Hindustan Gum & Chemicals Ltd. v. State of Haryana and Utkal Contractors and Joinery (P) Ltd. v. State of Orissa 13. In the present case as already pointed out above, if sub-section (2) as introduced by the Coal Mines Nationalisation Laws (Amendment) Act, 1986 in Section 10 had existed since the very inception, there was no occasion for the High Court or this Court to issue a direction for taking into account the price which was payable for the stock of coke lying on the date before the appointed day. The authority to introduce sub-section (2) in Section 10 of the aforesaid Act with retrospective effect cannot be questioned. Once the amendment has been introduced retrospectively, courts have to act on the basis that such provision was there since the beginning. The role of the deeming provision need not be emphasised in view of series of judgments of this Courts. Hence reading sub-section (2) of Section 10 along with Section 10, it has to be held that respondents are not required to take into account the stock of coke lying on the date prior to the appointed day, for the purpose of accounting during the period when the mine in question was under the management of the Central Government, because it shall be deemed that the compensation awarded to the petitioner included the price for such coal lying in stock on the date prior to the appointed day. Neither any compensation is to be paid for such stock of coal nor the price thereof is to be taken into account for the purpose of sub-section (1) of Section 22 of the Coking Coal Mines (Nationalisation) Act, 1972. It need not be pointed out that sub-section (1) of Section 22 shall be applicable where the statement of accounts is to be prepared in respect of each coking coal mine taking into account the expenditure incurred in raising the coal and the price of the coal raised during the period when such coking coal mine was under the management of the Central Government or the government company. In view of the aforesaid sub-section (2) introduced in Section 10 of the Coking Coal Mines (Nationalisation) Act, 1972 and Section 19 of the Coal Mines Nationalisation Laws (Amendment) Act, 1972, it shall be deemed that the compensation has been paid even for the stock of coal lying on the date prior to the appointed day 14. On behalf of the petitioner, reference was made to the case of D. Cawasji & Co. v. State of Mysore. In that case, it was held that Section 3 of the Mysore Sales Tax (Amendment) Act, 1969 was unreasonable insofar as it sought to nullify the High Court judgment which had become final and binding on parties. From a bare reference to the aforesaid judgment it shall appear that this Court pointed out that the amendment did not proceed to cure the defect or to remove the lacuna pointed out in the earlier judgment by bringing in an amendment. As such it was not a Validating Act and it could not nullify the judgment of the High Court, because the defect had not been removed by the said Act. In other words, the Validating Act had not served its purpose. In the present case, the lacuna or defect has been removed by introduction of sub-section (2) in Section 10 of the Act with retrospective effect. Sub-section (2) of Section 10 as well as Section 19, both have specified that the amount which is to be paid as compensation mentioned in the schedule shall be deemed to include and deemed always to have included, the amount required to be paid to such owner in respect of all coal in stock on the date immediately before the appointed day. As such the earlier judgment of this Court is of no help to the petitioner | 0[ds]on (2) has been introduced in Section 10 of the Nationalisation Act with retrospective effect, it shall be deemed to have been there sincethe day the Coking Coal Mines (Nationalisation) Act, 1972 came into force. The saidprovides and declares that the amount specified in the fifth column of the First Schedule against any coking coal mine specified in the said schedule which was required to be given by the Central Government to its owner under(1) shall be deemed to include, and deemed always to have included "the amount required to be paid to such owner in respect of all coke in stock or other assets referred to in clause (b) of Section 3 on the date immediately before the appointed day and no further amount shall be payable to the owner in respect of such coke or other assets". It cannot be disputed that if(2) was in existence on the date the writ application had been filed on behalf of the petitioner, there would have been no occasion for the High Court or this Court to direct that the account be taken also of the stock of coke lying on the date immediately before the appointed day because the amount which is payable to the petitioner shall be deemed to have included the payment even in respect of suchis well settled that Parliament and State Legislatures have plenary powers of legislation on the subjects within their field. They can legislate on the said subjects prospectively as well as retrospectively. If the intention of the legislature is clearly expressed that it purports to introduce the legislation or to amend an existing legislation retrospectively, then subject to the legislative competence and the exercise being not in violation of any of the provisions of the Constitution, such power cannot be questioned,(2) of Section 1 of the Coal Mines Nationalisation Laws (Amendment) Act, 1986 clearly and specifically says that the said amendment to the Coking Coal Mines (Nationalisation) Act, 1972 shall be deemed to have come into force onn (2) of Section 10 which has been introduced with retrospective effect says that the amount which has been mentioned in the schedule to be payable to the owner shall be deemed to include and deemed always to have included the amount required to be paid to such owner in respect of all coke in stock on the date immediately before the appointed day. The amount which is to be paid as compensation for acquisition of right, title and interest of the petitioner in the coking coal mine in question, shall include the compensation for all coke in stock on the date immediately before the appointed day. It can therefore be said that the amendments which have been introduced retrospectively, have taken away the substratum of the claim made on behalf of the petitioner, in respect of the price of the stock of coke lying on the date immediately before the appointedexercise of rendering ineffective the judgments or orders of competent courts by changing the very basis by legislation is adevice of validating legislation. This Court has repeatedly pointed out that such validating legislation which removes the cause of the invalidity cannot be considered to be an encroachment on judicial power. At the same time, any action in exercise of the power under any enactment which has been declared to be invalid by a court cannot be made valid by a Validating Act by merely saying so unless the defect which has been pointed out by the court is removed with retrospective effect. The validating legislation must remove the cause of invalidity. Till such defect or the lack of authority pointed out by the court under a statute is removed by the subsequent enactment with retrospective effect, the binding nature of the judgment of the court cannot beIn the present case as already pointed out above, if(2) as introduced by the Coal Mines Nationalisation Laws (Amendment) Act, 1986 in Section 10 had existed since the very inception, there was no occasion for the High Court or this Court to issue a direction for taking into account the price which was payable for the stock of coke lying on the date before the appointed day. The authority to introduce(2) in Section 10 of the aforesaid Act with retrospective effect cannot be questioned. Once the amendment has been introduced retrospectively, courts have to act on the basis that such provision was there since the beginning. The role of the deeming provision need not be emphasised in view of series of judgments of this Courts. Hence reading(2) of Section 10 along with Section 10, it has to be held that respondents are not required to take into account the stock of coke lying on the date prior to the appointed day, for the purpose of accounting during the period when the mine in question was under the management of the Central Government, because it shall be deemed that the compensation awarded to the petitioner included the price for such coal lying in stock on the date prior to the appointed day. Neither any compensation is to be paid for such stock of coal nor the price thereof is to be taken into account for the purpose of(1) of Section 22 of the Coking Coal Mines (Nationalisation) Act, 1972. It need not be pointed out that(1) of Section 22 shall be applicable where the statement of accounts is to be prepared in respect of each coking coal mine taking into account the expenditure incurred in raising the coal and the price of the coal raised during the period when such coking coal mine was under the management of the Central Government or the government company. In view of the aforesaid(2) introduced in Section 10 of the Coking Coal Mines (Nationalisation) Act, 1972 and Section 19 of the Coal Mines Nationalisation Laws (Amendment) Act, 1972, it shall be deemed that the compensation has been paid even for the stock of coal lying on the date prior to the appointedthe present case, the lacuna or defect has been removedby introduction of(2) in Section 10 of the Act with retrospective effect.(2) of Section 10 as well as Section 19, both have specified that the amount which is to be paid as compensation mentioned in the schedule shall be deemed to include and deemed always to have included, the amount required to be paid to such owner in respect of all coal in stock on the date immediately before the appointed day. As such the earlier judgment of this Court is of no help to the petitioner | 0 | 3,958 | 1,206 | ### 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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declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A courts decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statue or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law." * The same view has been expressed in the cases of West Ramnad Electric Distribution Co. Ltd. v. State of Madras Udai Ram Sharma v. Union of India , Tirath Ram Rajindra Nath v. State of U.P., Krishna Chandra Gangopadhyaya v. Union of India, Hindustan Gum & Chemicals Ltd. v. State of Haryana and Utkal Contractors and Joinery (P) Ltd. v. State of Orissa 13. In the present case as already pointed out above, if sub-section (2) as introduced by the Coal Mines Nationalisation Laws (Amendment) Act, 1986 in Section 10 had existed since the very inception, there was no occasion for the High Court or this Court to issue a direction for taking into account the price which was payable for the stock of coke lying on the date before the appointed day. The authority to introduce sub-section (2) in Section 10 of the aforesaid Act with retrospective effect cannot be questioned. Once the amendment has been introduced retrospectively, courts have to act on the basis that such provision was there since the beginning. The role of the deeming provision need not be emphasised in view of series of judgments of this Courts. Hence reading sub-section (2) of Section 10 along with Section 10, it has to be held that respondents are not required to take into account the stock of coke lying on the date prior to the appointed day, for the purpose of accounting during the period when the mine in question was under the management of the Central Government, because it shall be deemed that the compensation awarded to the petitioner included the price for such coal lying in stock on the date prior to the appointed day. Neither any compensation is to be paid for such stock of coal nor the price thereof is to be taken into account for the purpose of sub-section (1) of Section 22 of the Coking Coal Mines (Nationalisation) Act, 1972. It need not be pointed out that sub-section (1) of Section 22 shall be applicable where the statement of accounts is to be prepared in respect of each coking coal mine taking into account the expenditure incurred in raising the coal and the price of the coal raised during the period when such coking coal mine was under the management of the Central Government or the government company. In view of the aforesaid sub-section (2) introduced in Section 10 of the Coking Coal Mines (Nationalisation) Act, 1972 and Section 19 of the Coal Mines Nationalisation Laws (Amendment) Act, 1972, it shall be deemed that the compensation has been paid even for the stock of coal lying on the date prior to the appointed day 14. On behalf of the petitioner, reference was made to the case of D. Cawasji & Co. v. State of Mysore. In that case, it was held that Section 3 of the Mysore Sales Tax (Amendment) Act, 1969 was unreasonable insofar as it sought to nullify the High Court judgment which had become final and binding on parties. From a bare reference to the aforesaid judgment it shall appear that this Court pointed out that the amendment did not proceed to cure the defect or to remove the lacuna pointed out in the earlier judgment by bringing in an amendment. As such it was not a Validating Act and it could not nullify the judgment of the High Court, because the defect had not been removed by the said Act. In other words, the Validating Act had not served its purpose. In the present case, the lacuna or defect has been removed by introduction of sub-section (2) in Section 10 of the Act with retrospective effect. Sub-section (2) of Section 10 as well as Section 19, both have specified that the amount which is to be paid as compensation mentioned in the schedule shall be deemed to include and deemed always to have included, the amount required to be paid to such owner in respect of all coal in stock on the date immediately before the appointed day. As such the earlier judgment of this Court is of no help to the petitioner
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such owner in respect of all coke in stock or other assets referred to in clause (b) of Section 3 on the date immediately before the appointed day and no further amount shall be payable to the owner in respect of such coke or other assets". It cannot be disputed that if(2) was in existence on the date the writ application had been filed on behalf of the petitioner, there would have been no occasion for the High Court or this Court to direct that the account be taken also of the stock of coke lying on the date immediately before the appointed day because the amount which is payable to the petitioner shall be deemed to have included the payment even in respect of suchis well settled that Parliament and State Legislatures have plenary powers of legislation on the subjects within their field. They can legislate on the said subjects prospectively as well as retrospectively. If the intention of the legislature is clearly expressed that it purports to introduce the legislation or to amend an existing legislation retrospectively, then subject to the legislative competence and the exercise being not in violation of any of the provisions of the Constitution, such power cannot be questioned,(2) of Section 1 of the Coal Mines Nationalisation Laws (Amendment) Act, 1986 clearly and specifically says that the said amendment to the Coking Coal Mines (Nationalisation) Act, 1972 shall be deemed to have come into force onn (2) of Section 10 which has been introduced with retrospective effect says that the amount which has been mentioned in the schedule to be payable to the owner shall be deemed to include and deemed always to have included the amount required to be paid to such owner in respect of all coke in stock on the date immediately before the appointed day. The amount which is to be paid as compensation for acquisition of right, title and interest of the petitioner in the coking coal mine in question, shall include the compensation for all coke in stock on the date immediately before the appointed day. It can therefore be said that the amendments which have been introduced retrospectively, have taken away the substratum of the claim made on behalf of the petitioner, in respect of the price of the stock of coke lying on the date immediately before the appointedexercise of rendering ineffective the judgments or orders of competent courts by changing the very basis by legislation is adevice of validating legislation. This Court has repeatedly pointed out that such validating legislation which removes the cause of the invalidity cannot be considered to be an encroachment on judicial power. At the same time, any action in exercise of the power under any enactment which has been declared to be invalid by a court cannot be made valid by a Validating Act by merely saying so unless the defect which has been pointed out by the court is removed with retrospective effect. The validating legislation must remove the cause of invalidity. Till such defect or the lack of authority pointed out by the court under a statute is removed by the subsequent enactment with retrospective effect, the binding nature of the judgment of the court cannot beIn the present case as already pointed out above, if(2) as introduced by the Coal Mines Nationalisation Laws (Amendment) Act, 1986 in Section 10 had existed since the very inception, there was no occasion for the High Court or this Court to issue a direction for taking into account the price which was payable for the stock of coke lying on the date before the appointed day. The authority to introduce(2) in Section 10 of the aforesaid Act with retrospective effect cannot be questioned. Once the amendment has been introduced retrospectively, courts have to act on the basis that such provision was there since the beginning. The role of the deeming provision need not be emphasised in view of series of judgments of this Courts. Hence reading(2) of Section 10 along with Section 10, it has to be held that respondents are not required to take into account the stock of coke lying on the date prior to the appointed day, for the purpose of accounting during the period when the mine in question was under the management of the Central Government, because it shall be deemed that the compensation awarded to the petitioner included the price for such coal lying in stock on the date prior to the appointed day. Neither any compensation is to be paid for such stock of coal nor the price thereof is to be taken into account for the purpose of(1) of Section 22 of the Coking Coal Mines (Nationalisation) Act, 1972. It need not be pointed out that(1) of Section 22 shall be applicable where the statement of accounts is to be prepared in respect of each coking coal mine taking into account the expenditure incurred in raising the coal and the price of the coal raised during the period when such coking coal mine was under the management of the Central Government or the government company. In view of the aforesaid(2) introduced in Section 10 of the Coking Coal Mines (Nationalisation) Act, 1972 and Section 19 of the Coal Mines Nationalisation Laws (Amendment) Act, 1972, it shall be deemed that the compensation has been paid even for the stock of coal lying on the date prior to the appointedthe present case, the lacuna or defect has been removedby introduction of(2) in Section 10 of the Act with retrospective effect.(2) of Section 10 as well as Section 19, both have specified that the amount which is to be paid as compensation mentioned in the schedule shall be deemed to include and deemed always to have included, the amount required to be paid to such owner in respect of all coal in stock on the date immediately before the appointed day. As such the earlier judgment of this Court is of no help to the petitioner
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Dakshin Haryana Bijli Vitran Nigam Ltd Vs. M/S. Paramount Polymers Pvt.Ltd | in that process in respect of recovery of dues in respect of a premises to which supply had been made, a condition is inserted for its recovery from a transferee of the undertaking, it cannot ex facie be said to be unauthorized or unreasonable. Of course, still a court may be able to strike it down as being violative of the fundamental rights enshrined in the Constitution of India. But that is a different matter. In this case, the High Court has not undertaken that exercise. 14. The position obtaining in Isha Marbles, [(1995) 1 S.C.R. 847]. (supra) was akin to the position that was available in the case on hand in view of the Haryana Government Electrical Undertakings (Dues Recovery) Act, 1970. There was no insertion of a clause like clause 21A as in the present case, in the Terms and Conditions of Supply involved in that case. The decision proceeded on the basis that the contract for supply was only with the previous consumer and the obligation or liability was enforceable only against that consumer and since there was no contractual relationship with the subsequent purchaser and he was not a consumer within the meaning of the Electricity Act, the dues of the previous consumer could not be recovered from the purchaser. This Court had no occasion to consider the effect of clause like clause 21A in the Terms and Conditions of Supply. We are therefore of the view that the decision in Isha Marbles,[(1995) 1 S.C.R. 847]. (supra) cannot be applied to strike down the condition imposed and the first respondent has to make out a case independent on the ratio of Isha Marbles, [(1995) 1 S.C.R. 847]. (supra), though it can rely on its ratio if it is helpful, for attacking the insertion of such a condition for supply of electrical energy. This Court was essentially dealing with the construction of Section 24 of the Electricity Act in arriving at its conclusion. The question of correctness or otherwise of the decision in Isha Marbles, [(1995) 1 S.C.R. 847]. (supra) therefore does not arise in this case especially in view of the fact that the High Court has not considered the question whether clause 21A of the terms and conditions incorporated is invalid for any reason.15. In the light of what we have stated above we think that the proper course to adopt is to set aside the judgments of the learned Single Judge and that of the Division Bench and remit the writ petition filed by the first respondent to the High Court for a fresh decision in accordance with law. The first respondent would be free to amend its writ petition including the prayers therein and in the case of such an amendment the appellant would be entitled to file an additional statement in opposition. The writ petition will be considered afresh by the High Court in the light of what we have stated above.16. It is seen that after the High Court allowed the writ petition, the connection was restored to the first respondent in obedience to the writ, even though subsequently, this Court stayed the operation of the judgment of the High Court by its order dated 5.7.2006. It is now brought to our notice that a fresh connection has been provided to the first respondent in the light of the direction in the judgment under appeal without collecting the arrears that were due from M/s L.L.C. Steel Pvt. Ltd. Strictly, in view of the fact that we have set aside the judgment of the High Court, the first respondent should lose the benefit of the fresh connection. But considering that the first respondent is an industrial undertaking and taking note of the plea that investments have been made by it to make the unit workable, we think that it will be appropriate to direct the first respondent to deposit a portion of the amount in arrears as a condition for continuance of the supply to it by the appellant on payment of regular monthly bills as per the terms and conditions between the parties. We, therefore, direct that if the first respondent pays to the appellant, without prejudice to its contentions in the writ petition, a sum of Rs.25 lakhs (rupees twenty five lakhs) within a period of six weeks from today, the fresh connection given to the first respondent will not be disconnected by the appellant, until the writ petition is disposed of afresh by the High Court pursuant to this order of remand. In case the High Court accepts the challenge of the first respondent to clause 21A as inserted in the terms and conditions of supply, the appellant will refund the sum of Rs.25 lakhs with six per cent interest thereon from the date of payment by the first respondent till the date of its return by the appellant. In case the writ petition is dismissed by the High Court, the appellant would be entitled, at the volition of the first respondent, to adjust the amount of Rs.25 lakhs towards the dues claimed from the previous consumer, M/s L.L.C. Steel Pvt. Ltd. and maintain the fresh connection given to the first respondent on it fulfilling its obligations in terms of clause 21A and act on that basis. If the first respondent, does not desire to have a power connection based on clause 21A of the Terms and Conditions of Supply, the appellant will refund the sum of Rs. 25 lakhs to the first respondent without interest within two months of the judgment of the High Court and would disconnect the power connection now given. Of course, if the first respondent fails to deposit the sum of Rs.25 lakhs within the time fixed by us, the appellant would be free to disconnect the power supply granted to the first respondent pursuant to the judgment of the High Court which we have set aside herein and take all steps that may be permissible in law for recovery of the amounts due. | 1[ds]On a scrutiny of the decisions of the High Court of Bombay giving rise to those appeals, we find that the primary question in those appeals would be the correctness of the view of the High Court that the Electricity Board had no power to impose a condition that the purchaser of an undertaking will have the obligation to clear the arrears of charges of the prior consumer. Of course, incidentally the correctness of some of the observations in Isha Marbles(supra) may also be involved. Anyway, that aspect will also have to be borne in mind while we consider the elaborate submissions made before us in this appeal.The position obtaining in Isha Marbles(supra) was akin to the position that was available in the case on hand in view of the Haryana Government Electrical Undertakings (Dues Recovery) Act, 1970. There was no insertion of a clause like clause 21A as in the present case, in the Terms and Conditions of Supply involved in that case. The decision proceeded on the basis that the contract for supply was only with the previous consumer and the obligation or liability was enforceable only against that consumer and since there was no contractual relationship with the subsequent purchaser and he was not a consumer within the meaning of the Electricity Act, the dues of the previous consumer could not be recovered from the purchaser. This Court had no occasion to consider the effect of clause like clause 21A in the Terms and Conditions of Supply. We are therefore of the view that the decision in Isha Marbles(supra) cannot be applied to strike down the condition imposed and the first respondent has to make out a case independent on the ratio of Isha Marbles(supra), though it can rely on its ratio if it is helpful, for attacking the insertion of such a condition for supply of electrical energy. This Court was essentially dealing with the construction of Section 24 of the Electricity Act in arriving at its conclusion. The question of correctness or otherwise of the decision in Isha Marbles(supra) therefore does not arise in this case especially in view of the fact that the High Court has not considered the question whether clause 21A of the terms and conditions incorporated is invalid for any reason.15. In the light of what we have stated above we think that the proper course to adopt is to set aside the judgments of the learned Single Judge and that of the Division Bench and remit the writ petition filed by the first respondent to the High Court for a fresh decision in accordance with law. The first respondent would be free to amend its writ petition including the prayers therein and in the case of such an amendment the appellant would be entitled to file an additional statement in opposition. The writ petition will be considered afresh by the High Court in the light of what we have stated above.16. It is seen that after the High Court allowed the writ petition, the connection was restored to the first respondent in obedience to the writ, even though subsequently, this Court stayed the operation of the judgment of the High Court by its order dated 5.7.2006. It is now brought to our notice that a fresh connection has been provided to the first respondent in the light of the direction in the judgment under appeal without collecting the arrears that were due from M/s L.L.C. Steel Pvt. Ltd. Strictly, in view of the fact that we have set aside the judgment of the High Court, the first respondent should lose the benefit of the fresh connection. But considering that the first respondent is an industrial undertaking and taking note of the plea that investments have been made by it to make the unit workable, we think that it will be appropriate to direct the first respondent to deposit a portion of the amount in arrears as a condition for continuance of the supply to it by the appellant on payment of regular monthly bills as per the terms and conditions between the parties. We, therefore, direct that if the first respondent pays to the appellant, without prejudice to its contentions in the writ petition, a sum of Rs.25 lakhs (rupees twenty five lakhs) within a period of six weeks from today, the fresh connection given to the first respondent will not be disconnected by the appellant, until the writ petition is disposed of afresh by the High Court pursuant to this order of remand. In case the High Court accepts the challenge of the first respondent to clause 21A as inserted in the terms and conditions of supply, the appellant will refund the sum of Rs.25 lakhs with six per cent interest thereon from the date of payment by the first respondent till the date of its return by the appellant. In case the writ petition is dismissed by the High Court, the appellant would be entitled, at the volition of the first respondent, to adjust the amount of Rs.25 lakhs towards the dues claimed from the previous consumer, M/s L.L.C. Steel Pvt. Ltd. and maintain the fresh connection given to the first respondent on it fulfilling its obligations in terms of clause 21A and act on that basis. If the first respondent, does not desire to have a power connection based on clause 21A of the Terms and Conditions of Supply, the appellant will refund the sum of Rs. 25 lakhs to the first respondent without interest within two months of the judgment of the High Court and would disconnect the power connection now given. Of course, if the first respondent fails to deposit the sum of Rs.25 lakhs within the time fixed by us, the appellant would be free to disconnect the power supply granted to the first respondent pursuant to the judgment of the High Court which we have set aside herein and take all steps that may be permissible in law for recovery of the amounts due. | 1 | 5,431 | 1,080 | ### 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:
in that process in respect of recovery of dues in respect of a premises to which supply had been made, a condition is inserted for its recovery from a transferee of the undertaking, it cannot ex facie be said to be unauthorized or unreasonable. Of course, still a court may be able to strike it down as being violative of the fundamental rights enshrined in the Constitution of India. But that is a different matter. In this case, the High Court has not undertaken that exercise. 14. The position obtaining in Isha Marbles, [(1995) 1 S.C.R. 847]. (supra) was akin to the position that was available in the case on hand in view of the Haryana Government Electrical Undertakings (Dues Recovery) Act, 1970. There was no insertion of a clause like clause 21A as in the present case, in the Terms and Conditions of Supply involved in that case. The decision proceeded on the basis that the contract for supply was only with the previous consumer and the obligation or liability was enforceable only against that consumer and since there was no contractual relationship with the subsequent purchaser and he was not a consumer within the meaning of the Electricity Act, the dues of the previous consumer could not be recovered from the purchaser. This Court had no occasion to consider the effect of clause like clause 21A in the Terms and Conditions of Supply. We are therefore of the view that the decision in Isha Marbles,[(1995) 1 S.C.R. 847]. (supra) cannot be applied to strike down the condition imposed and the first respondent has to make out a case independent on the ratio of Isha Marbles, [(1995) 1 S.C.R. 847]. (supra), though it can rely on its ratio if it is helpful, for attacking the insertion of such a condition for supply of electrical energy. This Court was essentially dealing with the construction of Section 24 of the Electricity Act in arriving at its conclusion. The question of correctness or otherwise of the decision in Isha Marbles, [(1995) 1 S.C.R. 847]. (supra) therefore does not arise in this case especially in view of the fact that the High Court has not considered the question whether clause 21A of the terms and conditions incorporated is invalid for any reason.15. In the light of what we have stated above we think that the proper course to adopt is to set aside the judgments of the learned Single Judge and that of the Division Bench and remit the writ petition filed by the first respondent to the High Court for a fresh decision in accordance with law. The first respondent would be free to amend its writ petition including the prayers therein and in the case of such an amendment the appellant would be entitled to file an additional statement in opposition. The writ petition will be considered afresh by the High Court in the light of what we have stated above.16. It is seen that after the High Court allowed the writ petition, the connection was restored to the first respondent in obedience to the writ, even though subsequently, this Court stayed the operation of the judgment of the High Court by its order dated 5.7.2006. It is now brought to our notice that a fresh connection has been provided to the first respondent in the light of the direction in the judgment under appeal without collecting the arrears that were due from M/s L.L.C. Steel Pvt. Ltd. Strictly, in view of the fact that we have set aside the judgment of the High Court, the first respondent should lose the benefit of the fresh connection. But considering that the first respondent is an industrial undertaking and taking note of the plea that investments have been made by it to make the unit workable, we think that it will be appropriate to direct the first respondent to deposit a portion of the amount in arrears as a condition for continuance of the supply to it by the appellant on payment of regular monthly bills as per the terms and conditions between the parties. We, therefore, direct that if the first respondent pays to the appellant, without prejudice to its contentions in the writ petition, a sum of Rs.25 lakhs (rupees twenty five lakhs) within a period of six weeks from today, the fresh connection given to the first respondent will not be disconnected by the appellant, until the writ petition is disposed of afresh by the High Court pursuant to this order of remand. In case the High Court accepts the challenge of the first respondent to clause 21A as inserted in the terms and conditions of supply, the appellant will refund the sum of Rs.25 lakhs with six per cent interest thereon from the date of payment by the first respondent till the date of its return by the appellant. In case the writ petition is dismissed by the High Court, the appellant would be entitled, at the volition of the first respondent, to adjust the amount of Rs.25 lakhs towards the dues claimed from the previous consumer, M/s L.L.C. Steel Pvt. Ltd. and maintain the fresh connection given to the first respondent on it fulfilling its obligations in terms of clause 21A and act on that basis. If the first respondent, does not desire to have a power connection based on clause 21A of the Terms and Conditions of Supply, the appellant will refund the sum of Rs. 25 lakhs to the first respondent without interest within two months of the judgment of the High Court and would disconnect the power connection now given. Of course, if the first respondent fails to deposit the sum of Rs.25 lakhs within the time fixed by us, the appellant would be free to disconnect the power supply granted to the first respondent pursuant to the judgment of the High Court which we have set aside herein and take all steps that may be permissible in law for recovery of the amounts due.
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### Explanation:
a scrutiny of the decisions of the High Court of Bombay giving rise to those appeals, we find that the primary question in those appeals would be the correctness of the view of the High Court that the Electricity Board had no power to impose a condition that the purchaser of an undertaking will have the obligation to clear the arrears of charges of the prior consumer. Of course, incidentally the correctness of some of the observations in Isha Marbles(supra) may also be involved. Anyway, that aspect will also have to be borne in mind while we consider the elaborate submissions made before us in this appeal.The position obtaining in Isha Marbles(supra) was akin to the position that was available in the case on hand in view of the Haryana Government Electrical Undertakings (Dues Recovery) Act, 1970. There was no insertion of a clause like clause 21A as in the present case, in the Terms and Conditions of Supply involved in that case. The decision proceeded on the basis that the contract for supply was only with the previous consumer and the obligation or liability was enforceable only against that consumer and since there was no contractual relationship with the subsequent purchaser and he was not a consumer within the meaning of the Electricity Act, the dues of the previous consumer could not be recovered from the purchaser. This Court had no occasion to consider the effect of clause like clause 21A in the Terms and Conditions of Supply. We are therefore of the view that the decision in Isha Marbles(supra) cannot be applied to strike down the condition imposed and the first respondent has to make out a case independent on the ratio of Isha Marbles(supra), though it can rely on its ratio if it is helpful, for attacking the insertion of such a condition for supply of electrical energy. This Court was essentially dealing with the construction of Section 24 of the Electricity Act in arriving at its conclusion. The question of correctness or otherwise of the decision in Isha Marbles(supra) therefore does not arise in this case especially in view of the fact that the High Court has not considered the question whether clause 21A of the terms and conditions incorporated is invalid for any reason.15. In the light of what we have stated above we think that the proper course to adopt is to set aside the judgments of the learned Single Judge and that of the Division Bench and remit the writ petition filed by the first respondent to the High Court for a fresh decision in accordance with law. The first respondent would be free to amend its writ petition including the prayers therein and in the case of such an amendment the appellant would be entitled to file an additional statement in opposition. The writ petition will be considered afresh by the High Court in the light of what we have stated above.16. It is seen that after the High Court allowed the writ petition, the connection was restored to the first respondent in obedience to the writ, even though subsequently, this Court stayed the operation of the judgment of the High Court by its order dated 5.7.2006. It is now brought to our notice that a fresh connection has been provided to the first respondent in the light of the direction in the judgment under appeal without collecting the arrears that were due from M/s L.L.C. Steel Pvt. Ltd. Strictly, in view of the fact that we have set aside the judgment of the High Court, the first respondent should lose the benefit of the fresh connection. But considering that the first respondent is an industrial undertaking and taking note of the plea that investments have been made by it to make the unit workable, we think that it will be appropriate to direct the first respondent to deposit a portion of the amount in arrears as a condition for continuance of the supply to it by the appellant on payment of regular monthly bills as per the terms and conditions between the parties. We, therefore, direct that if the first respondent pays to the appellant, without prejudice to its contentions in the writ petition, a sum of Rs.25 lakhs (rupees twenty five lakhs) within a period of six weeks from today, the fresh connection given to the first respondent will not be disconnected by the appellant, until the writ petition is disposed of afresh by the High Court pursuant to this order of remand. In case the High Court accepts the challenge of the first respondent to clause 21A as inserted in the terms and conditions of supply, the appellant will refund the sum of Rs.25 lakhs with six per cent interest thereon from the date of payment by the first respondent till the date of its return by the appellant. In case the writ petition is dismissed by the High Court, the appellant would be entitled, at the volition of the first respondent, to adjust the amount of Rs.25 lakhs towards the dues claimed from the previous consumer, M/s L.L.C. Steel Pvt. Ltd. and maintain the fresh connection given to the first respondent on it fulfilling its obligations in terms of clause 21A and act on that basis. If the first respondent, does not desire to have a power connection based on clause 21A of the Terms and Conditions of Supply, the appellant will refund the sum of Rs. 25 lakhs to the first respondent without interest within two months of the judgment of the High Court and would disconnect the power connection now given. Of course, if the first respondent fails to deposit the sum of Rs.25 lakhs within the time fixed by us, the appellant would be free to disconnect the power supply granted to the first respondent pursuant to the judgment of the High Court which we have set aside herein and take all steps that may be permissible in law for recovery of the amounts due.
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M/S Bakemans Industries Pvt.Ltd Vs. M/S New Cawnpore Flour Mills | Gas and Petrochemical Co. v. Multinational Gas & Petrochemical Services Ltd. [1983 Ch. 258] directors owe fiduciary duties to the company though not to the creditors, present or future, or individual shareholders. Winkworth v. Edward Baron Development Co. Ltd. [(1987) 1 All ER 114], a House of Lords decision, might suggest that there has been a change to that position with Lord Templeman stating:‘...a company ownes a duty to its creditors, present and future. The company owes a duty to its creditors to keep its property inviolate and available for repayment of its debts. The conscience of the company, as well as its management, is confided to its directors. A duty is owed by the directors to the company and to the creditors of the company to ensure that the affairs of the company are properly administered and that its property is not dissipated or exploited for the benefit of the directors themselves to the prejudice of the creditors." The learned author furthermore observed: "Support here for this approach can be found in West Mercia Safetywear Ltd. v. Dodd [(1986) 4 ACLC 215] where Dillon LJ approved the following statement of the position by the New South Wales Court of Appeal in Kinsela v. Russell Kinsela Pry Ltd. [(1989) AC 755]: In a solvent company the proprietary interests of the shareholders entitle them as a general body to be regarded as the company when questions of the duty of directors arise. If as a general body, they authorize or ratify a particular action of the director, there can be no challenge to the validity of what the directors have done. But where a company is insolvent, the interests of the creditors intrude. They become prospectively entitled through the mechanism of liquidation, to displace the power of the shareholders and directors to deal with the companys assets. It is in a practical sense their assets and not the shareholders assets that through the medium of the company are under the management of the directors pending either liquidation, return to solvency, or the imposition of some alternative administration." 62. This is the meet of the matter. If the property which has been put to auction was the prime property over which the fate of the creditors depended, be they secured or non-secured ones, the company court, in exercise of its equity jurisdiction could not have obliterated it from its mind the cases of the others. If the assets belong to the creditors, that must mean the whole body of the creditors and not only one of the secured creditors. The inconsistency of is self-evident, as, on the one hand, it is stated that the property of the company does not vest in the court or the official liquidator, on the other hand, it is stated that it is vested in the body of the creditors and not only in SICOM.63. The High Court, therefore, could not have ignored the official liquidator only on the ground that a provisional official liquidator was appointed and not a regular official liquidator. The power and functions of the provisional official liquidator for all intent and purport would be the same as that of the official liquidator and, therefore, it was not necessary for the Company Judge to wait till the Company was wound up.64. If the jurisdiction of a Company Judge is limited, any substantial deviation and departure therefrom would result in unfairness. When an order is passed in total disregard of the mandatory provisions of law, the order itself would be without jurisdiction. In this case, however, even otherwise a fair procedure was not adopted. We, however, very much appreciate the anxiety on the part of the Court to see that otherwise just dues of SICOM be realized. Conduct of a party plays an important role in the matter of grant of a relief. However, only because the conduct of a party was not fair, the same, by itself, cannot be a ground to adopt a procedure which is unjust or unfair, particularly, when by reason thereof, not only the Company itself but also other creditors are seriously prejudiced. We fail to see any reason as to why the hearing of the case was to be preponed. Why even a days time could not have been granted when a prayer for adjournment was made. The jurisdiction of the Company Court is vast and wide. It can mould its reliefs. It may exercise one jurisdiction or the other. It may grant a variety of reliefs to the parties before it. The parties before the Company Judge are not only the Company or the creditors who had initiated the proceedings but also others who have something to do therewith. Even in a given case a larger public interest may have to be kept in mind. The court may direct winding up. It may prepare a scheme for its restructuring.65. We, therefore, are of the opinion that the Company Judge was not correct in its view and passed the impugned judgments only having regard to the wrongful conduct on the part of the appellant in obtaining an award from the conciliation tribunal or failure to bring a better offer from another bidder. 66. The question which is really an intricate one is what relief can be granted. On the one hand, the Company has committed wrongs, on the other, its property has been sold in auction. Even a part of the property has been permitted by us to be taken out of the country. The factory, we are told, has started operation. It has employed a large number of workmen. Would that itself mean that we should refrain ourselves from granting any relief? Direction issued by this Court in a case of this nature need not be a narrow one.The court has to take into consideration the fate of not only those workmen who are working but also those who have a claim against the Company. We must also take into consideration the fate of the other creditors. | 1[ds]But, in this case, the sale in favour of Ceylon Biscuits Pvt. Ltd. having not taken place in terms of Section 29 of the 1951 Act, the said question cannot have any application whatsoever. It is, however, a case where the learned Company Judge was not authorized to exercise its power under Section 29 of the 1951 Act. It purported to exercise its power only under the Companies Act. SICOM submitted itself to its jurisdiction. It allowed the Company Judge to conduct the sale. The sale that was conducted was purported to be in terms of the Companies Act. We have noticed hereinbefore that when a provisional liquidator was appointed, the High Court instead of exercising its writ jurisdiction referred the matter to the Company Judge. It was the Company Judge, therefore, who proceeded in the matter. The Company Judge could exercise its jurisdiction only in terms of the Companies Act and not in terms of Section 29 of the 1951 Act. If it did not have the power under the 1951 Act, any decision purported to have been taken by it would be a nullity. SICOM indisputably has a statutory power but it could waive the same. It preferred the conduct of the auction at the hands of the Company Judge in stead and place of carrying on the same by itself. It submitted itself to the jurisdiction of the Company Judge. Not only it took part in the proceedings without any demur whatsoever, it actively participated therein. It is only at its instance that the bid was held. The other bidders were also brought in. It is, therefore, not a case where the learned Company Judge had no jurisdiction to exercise supervision of sale of the assets of the appellant on behalf of SICOM in terms of the provisions of Section 29 of the 1951 Act or otherwise. Respondents even never insisted to get the question of jurisdiction determined as a preliminary issue, although raised by it specifically. It, thus, for all intent and purport waived its right.The official liquidator brought to the courts notice the claims of the other creditors. The Company Judge having been exercising its jurisdiction under Section 433 of the Companies Act was, thus, under a statutory obligation to consider the cases of all creditors of the Company simultaneously. For the said purpose, the learned Company Judge was bound to follow the provisions of the Companies Act and/ or the Company Court Rules. The jurisdiction of a Company Court extends only to those matters which are specified in the Companies Act and apart therefrom it had no jurisdiction. It also has a duty to see that the claims of all creditors be dealt with, particularly having regard to the provisions of Section 529A of the Companies Act. We are informed that the workers had also filed their claims. Their claims having regard to a series of decisions of this Court could not have been ignored.The matter might have been otherwise if SICOM had remained outside the winding up proceedings. If it attained, disposal of the assets of the Company would be subject to pari passu claim of unpaid workmen in terms of Section 529A of the Companies Act.45. The sale has been effected by the court treating SICOM as an agent. Factually the court did not do so. Even otherwise, it is impermissible. It exercised its own jurisdiction. It was bound to do so. There cannot be any doubt whatsoever that in the matter of control over the assets of a company in liquidation, the courts exercise a wide jurisdiction. It may not only take recourse to the sale of the assets of the company whether before or after it is wound up, but also would be entitled to, nay obligated to, if the situation so warrants to attempt to rehabilitate the company itself. While doing so, it exercises its parens patriae power. It safeguards not only the interest of the mortgages, but also the interest of the mortgagor. It has a statutory obligation to safeguard the interest of the workmen as also other non-secured creditors.It is one thing to say as to how the assets shall be distributed but it is another thing to say that while exercising the power to cause the sale of the assets of the company, it would ignore the statutory provision. It must, while exercising its power, take into consideration a all relevant factors. The mode and manner as to how a sale would be conducted is one thing but it is another thing that before putting the assets of the company to sale, the court will undertake certain obligations which are inherent in exercise of its jurisdiction under the provisions of the Companies Act.46. We will assume that the court could appoint SICOM as an agent but apart from the fact that it, in fact, did not do so, we are inclined to hold that the stand of the learned counsel is mutually destructive. On the one hand, it is stated that SICOM was exercising its statutory power to cause sale of the assets of the mortgagor through the agency of the court but it is also contended that the sale was affected by the court through SICOM. Such a contradictory or inconsistent stand, in our opinion, is impermissible in law.The Executive Court being a co-ordinate court (as the Execution Petition was filed in the High Court itself) transferred the same to the Company Judge having regard to the fact that a provisional liquidator was appointed. Sub-section (4) of Section 446, therefore, has no application as the proceedings before the Executing Court was not a matter which came up in appeal from a judgment and order of another court. Section 447 provides for the effect of winding upis true that the court had not permitted the provisional liquidator to take over the assets. It protected the possession of SICOM. But the same by itself would not mean that the provisional liquidator was denied from performing its otherquestion which should be addressed, in our opinion, by the Company Court is that the ultimate interest of both secured and non-secured creditors must be kept in mind. Should Court have exercised its jurisdiction for directing the sale of the prime property and, in fact, the essence of the assets of the appellant at the initial stage. The answer, in our opinion, should be rendered in the negative.It is furthermore not a case where the rights of third persons were involved. We have held hereinbefore that SICOM failed to keep itself outside the winding up proceedings. It has become a party to it and, thus, when a sale is held by a Company Judge, it should not keep a provisional liquidator out of its purview. It may be true that the provisional liquidator could not sell the property without the sanction of the court, but then feed back of the provisional liquidator by the Company Court was necessary for the purpose of having a complete picture before it. The official liquidator has informed us that about 373 claims have been filed. The amount of claim is about 100 crores; amongst the claimants, there are banks in whose favour also deeds of mortgages have been executed. Provident Fund dues and other dues of statutory claims are also subject matter of the claim petition. They also have a priority. The claim of the provident fund is on behalf of the workmen. For scrutiny of the said claims, a Committee has been constituted and we had been informed that except the properties which have been sold in liquidation, there is hardly any other asset upon which the creditors can back upon for the purpose of realization of their dues.57. It is true that in a liquidation petition, secured creditors ought to be differently treated. A third party who has an independent right would not be affected by reason thereof. Ordinarily, even the statutory power of the said financial corporation would also not be affected.58. We, however, are not in a position to agree with the submissions of Mr. Sundaram that provisional liquidators have no statutory powers in relation to affecting sale of a moveable or immoveable property. Indisputably, it is subject to the direction of the court but, as indicated hereinbefore, the Court while undergoing the process of winding up and, in any event, resorting to sale of the assets of the company under winding up proceeding could not have a ignored the involvement of the provisional liquidator for any purpose whatsoever. At the cost of repetition, it is reiterated that the discretion of the court for selecting the mode and manner of sale has nothing to do with the process required to be gone into for the said purpose. It must have before it all these facts and figures so as to enable it to pass a final order one way or the other. In so doing, the court must keep in mind that it is not only determining an issue by and between the mortgagor and one mortgagee only but could also be determining the issue between a debtor and a vast number of creditors; whether secured or non-secured.This is the meet of the matter. If the property which has been put to auction was the prime property over which the fate of the creditors depended, be they secured or non-secured ones, the company court, in exercise of its equity jurisdiction could not have obliterated it from its mind the cases of the others. If the assets belong to the creditors, that must mean the whole body of the creditors and not only one of the secured creditors. The inconsistency of is self-evident, as, on the one hand, it is stated that the property of the company does not vest in the court or the official liquidator, on the other hand, it is stated that it is vested in the body of the creditors and not only in SICOM.63. The High Court, therefore, could not have ignored the official liquidator only on the ground that a provisional official liquidator was appointed and not a regular official liquidator. The power and functions of the provisional official liquidator for all intent and purport would be the same as that of the official liquidator and, therefore, it was not necessary for the Company Judge to wait till the Company was wound up.64. If the jurisdiction of a Company Judge is limited, any substantial deviation and departure therefrom would result in unfairness. When an order is passed in total disregard of the mandatory provisions of law, the order itself would be without jurisdiction. In this case, however, even otherwise a fair procedure was not adopted. We, however, very much appreciate the anxiety on the part of the Court to see that otherwise just dues of SICOM be realized. Conduct of a party plays an important role in the matter of grant of a relief. However, only because the conduct of a party was not fair, the same, by itself, cannot be a ground to adopt a procedure which is unjust or unfair, particularly, when by reason thereof, not only the Company itself but also other creditors are seriously prejudiced. We fail to see any reason as to why the hearing of the case was to be preponed. Why even a days time could not have been granted when a prayer for adjournment was made. The jurisdiction of the Company Court is vast and wide. It can mould its reliefs. It may exercise one jurisdiction or the other. It may grant a variety of reliefs to the parties before it. The parties before the Company Judge are not only the Company or the creditors who had initiated the proceedings but also others who have something to do therewith. Even in a given case a larger public interest may have to be kept in mind. The court may direct winding up. It may prepare a scheme for its restructuring.65. We, therefore, are of the opinion that the Company Judge was not correct in its view and passed the impugned judgments only having regard to the wrongful conduct on the part of the appellant in obtaining an award from the conciliation tribunal or failure to bring a better offer from anotherthe one hand, the Company has committed wrongs, on the other, its property has been sold in auction. Even a part of the property has been permitted by us to be taken out of the country. The factory, we are told, has started operation. It has employed a large number of workmen. Would that itself mean that we should refrain ourselves from granting any relief? Direction issued by this Court in a case of this nature need not be a narrow one.The court has to take into consideration the fate of not only those workmen who are working but also those who have a claim against the Company. We must also take into consideration the fate of the other creditors. | 1 | 12,484 | 2,363 | ### 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:
Gas and Petrochemical Co. v. Multinational Gas & Petrochemical Services Ltd. [1983 Ch. 258] directors owe fiduciary duties to the company though not to the creditors, present or future, or individual shareholders. Winkworth v. Edward Baron Development Co. Ltd. [(1987) 1 All ER 114], a House of Lords decision, might suggest that there has been a change to that position with Lord Templeman stating:‘...a company ownes a duty to its creditors, present and future. The company owes a duty to its creditors to keep its property inviolate and available for repayment of its debts. The conscience of the company, as well as its management, is confided to its directors. A duty is owed by the directors to the company and to the creditors of the company to ensure that the affairs of the company are properly administered and that its property is not dissipated or exploited for the benefit of the directors themselves to the prejudice of the creditors." The learned author furthermore observed: "Support here for this approach can be found in West Mercia Safetywear Ltd. v. Dodd [(1986) 4 ACLC 215] where Dillon LJ approved the following statement of the position by the New South Wales Court of Appeal in Kinsela v. Russell Kinsela Pry Ltd. [(1989) AC 755]: In a solvent company the proprietary interests of the shareholders entitle them as a general body to be regarded as the company when questions of the duty of directors arise. If as a general body, they authorize or ratify a particular action of the director, there can be no challenge to the validity of what the directors have done. But where a company is insolvent, the interests of the creditors intrude. They become prospectively entitled through the mechanism of liquidation, to displace the power of the shareholders and directors to deal with the companys assets. It is in a practical sense their assets and not the shareholders assets that through the medium of the company are under the management of the directors pending either liquidation, return to solvency, or the imposition of some alternative administration." 62. This is the meet of the matter. If the property which has been put to auction was the prime property over which the fate of the creditors depended, be they secured or non-secured ones, the company court, in exercise of its equity jurisdiction could not have obliterated it from its mind the cases of the others. If the assets belong to the creditors, that must mean the whole body of the creditors and not only one of the secured creditors. The inconsistency of is self-evident, as, on the one hand, it is stated that the property of the company does not vest in the court or the official liquidator, on the other hand, it is stated that it is vested in the body of the creditors and not only in SICOM.63. The High Court, therefore, could not have ignored the official liquidator only on the ground that a provisional official liquidator was appointed and not a regular official liquidator. The power and functions of the provisional official liquidator for all intent and purport would be the same as that of the official liquidator and, therefore, it was not necessary for the Company Judge to wait till the Company was wound up.64. If the jurisdiction of a Company Judge is limited, any substantial deviation and departure therefrom would result in unfairness. When an order is passed in total disregard of the mandatory provisions of law, the order itself would be without jurisdiction. In this case, however, even otherwise a fair procedure was not adopted. We, however, very much appreciate the anxiety on the part of the Court to see that otherwise just dues of SICOM be realized. Conduct of a party plays an important role in the matter of grant of a relief. However, only because the conduct of a party was not fair, the same, by itself, cannot be a ground to adopt a procedure which is unjust or unfair, particularly, when by reason thereof, not only the Company itself but also other creditors are seriously prejudiced. We fail to see any reason as to why the hearing of the case was to be preponed. Why even a days time could not have been granted when a prayer for adjournment was made. The jurisdiction of the Company Court is vast and wide. It can mould its reliefs. It may exercise one jurisdiction or the other. It may grant a variety of reliefs to the parties before it. The parties before the Company Judge are not only the Company or the creditors who had initiated the proceedings but also others who have something to do therewith. Even in a given case a larger public interest may have to be kept in mind. The court may direct winding up. It may prepare a scheme for its restructuring.65. We, therefore, are of the opinion that the Company Judge was not correct in its view and passed the impugned judgments only having regard to the wrongful conduct on the part of the appellant in obtaining an award from the conciliation tribunal or failure to bring a better offer from another bidder. 66. The question which is really an intricate one is what relief can be granted. On the one hand, the Company has committed wrongs, on the other, its property has been sold in auction. Even a part of the property has been permitted by us to be taken out of the country. The factory, we are told, has started operation. It has employed a large number of workmen. Would that itself mean that we should refrain ourselves from granting any relief? Direction issued by this Court in a case of this nature need not be a narrow one.The court has to take into consideration the fate of not only those workmen who are working but also those who have a claim against the Company. We must also take into consideration the fate of the other creditors.
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having a complete picture before it. The official liquidator has informed us that about 373 claims have been filed. The amount of claim is about 100 crores; amongst the claimants, there are banks in whose favour also deeds of mortgages have been executed. Provident Fund dues and other dues of statutory claims are also subject matter of the claim petition. They also have a priority. The claim of the provident fund is on behalf of the workmen. For scrutiny of the said claims, a Committee has been constituted and we had been informed that except the properties which have been sold in liquidation, there is hardly any other asset upon which the creditors can back upon for the purpose of realization of their dues.57. It is true that in a liquidation petition, secured creditors ought to be differently treated. A third party who has an independent right would not be affected by reason thereof. Ordinarily, even the statutory power of the said financial corporation would also not be affected.58. We, however, are not in a position to agree with the submissions of Mr. Sundaram that provisional liquidators have no statutory powers in relation to affecting sale of a moveable or immoveable property. Indisputably, it is subject to the direction of the court but, as indicated hereinbefore, the Court while undergoing the process of winding up and, in any event, resorting to sale of the assets of the company under winding up proceeding could not have a ignored the involvement of the provisional liquidator for any purpose whatsoever. At the cost of repetition, it is reiterated that the discretion of the court for selecting the mode and manner of sale has nothing to do with the process required to be gone into for the said purpose. It must have before it all these facts and figures so as to enable it to pass a final order one way or the other. In so doing, the court must keep in mind that it is not only determining an issue by and between the mortgagor and one mortgagee only but could also be determining the issue between a debtor and a vast number of creditors; whether secured or non-secured.This is the meet of the matter. If the property which has been put to auction was the prime property over which the fate of the creditors depended, be they secured or non-secured ones, the company court, in exercise of its equity jurisdiction could not have obliterated it from its mind the cases of the others. If the assets belong to the creditors, that must mean the whole body of the creditors and not only one of the secured creditors. The inconsistency of is self-evident, as, on the one hand, it is stated that the property of the company does not vest in the court or the official liquidator, on the other hand, it is stated that it is vested in the body of the creditors and not only in SICOM.63. The High Court, therefore, could not have ignored the official liquidator only on the ground that a provisional official liquidator was appointed and not a regular official liquidator. The power and functions of the provisional official liquidator for all intent and purport would be the same as that of the official liquidator and, therefore, it was not necessary for the Company Judge to wait till the Company was wound up.64. If the jurisdiction of a Company Judge is limited, any substantial deviation and departure therefrom would result in unfairness. When an order is passed in total disregard of the mandatory provisions of law, the order itself would be without jurisdiction. In this case, however, even otherwise a fair procedure was not adopted. We, however, very much appreciate the anxiety on the part of the Court to see that otherwise just dues of SICOM be realized. Conduct of a party plays an important role in the matter of grant of a relief. However, only because the conduct of a party was not fair, the same, by itself, cannot be a ground to adopt a procedure which is unjust or unfair, particularly, when by reason thereof, not only the Company itself but also other creditors are seriously prejudiced. We fail to see any reason as to why the hearing of the case was to be preponed. Why even a days time could not have been granted when a prayer for adjournment was made. The jurisdiction of the Company Court is vast and wide. It can mould its reliefs. It may exercise one jurisdiction or the other. It may grant a variety of reliefs to the parties before it. The parties before the Company Judge are not only the Company or the creditors who had initiated the proceedings but also others who have something to do therewith. Even in a given case a larger public interest may have to be kept in mind. The court may direct winding up. It may prepare a scheme for its restructuring.65. We, therefore, are of the opinion that the Company Judge was not correct in its view and passed the impugned judgments only having regard to the wrongful conduct on the part of the appellant in obtaining an award from the conciliation tribunal or failure to bring a better offer from anotherthe one hand, the Company has committed wrongs, on the other, its property has been sold in auction. Even a part of the property has been permitted by us to be taken out of the country. The factory, we are told, has started operation. It has employed a large number of workmen. Would that itself mean that we should refrain ourselves from granting any relief? Direction issued by this Court in a case of this nature need not be a narrow one.The court has to take into consideration the fate of not only those workmen who are working but also those who have a claim against the Company. We must also take into consideration the fate of the other creditors.
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Sunder Dass Vs. Ram Prakash | 1st Septem- ber, 1956 was lawful and since the tenancy of the respond- ent was validly terminated by the appellant by giving notice to quit, the appellant was entitled to a decree for eviction against the respondent. But, as pointed out above, section 3 was amended with retrospective effect by the introduction of the proviso and the question is whether the introduction of the proviso with retrospective effect had the effect of rendering the decree for eviction null and void. Since the proviso was introduced with retrospective effect, it must be deemed to be part of section 3 since the time that the Delhi Rent Control Act, 1958 was enacted. It was pointed out by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council ([1952] A..C. 132.) in a passage which has become classical by reason of its felicity of language that "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute Says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of. affairs". The proviso must, therefore, for all legal pur- poses, be deemed to have been included in section 3 as from the date of enactment of the Delhi Rent. Control Act, 1958. If that be the true position, then obviously it must be held that the provisions of the Delhi Rent Control Act, 1958 were applicable to the tenancy of the respondent, for the premises though belonging to the Government, were law- fully let out by the appellant to the respondent and the condition of the proviso was satisfied. That was the position which, by reason of the legal fiction brought about by the retrospective introduction of the proviso in section, 3, must be held to have prevailed at the date. of the instit u- tion of the suit and the provisions of the Delhi Rent Con- trol Act, 1958 being applicable, it must be concluded that the civil court had no inherent jurisdiction to entertain the suit (vide section 50) and the decree for eviction was a nullity. Prima facie, it may appear somewhat strange that a decree for eviction which was good and valid when it was made should be treated as null and void by virtue-of the retrospective introduction of the proviso in section 3. But such a result is necessarily involved in the legal fiction created by the retrospective operation of the proviso. If, as a result of the said fiction, we must read the proviso as forming part of section 3 as from the date of enactment of the Delhi Rent Control Act, 1958, the conclu- sion is inescapable that the civil court had no inherent jurisdiction to entertain the suit and the Trial Court as well as the Additional District Judge and the High Court were in error in exercising jurisdiction in relation to the suit when their Jurisdiction was clearly excluded by section 50.The appellant, however, urged that the introduction of the proviso in section 3 should not be given greater retrospective operation than necessary and it should not be so construed as to affect decrees for eviction which had already become final between the parties. Now, it is true, and that is a settled principle of construction, that the court ought not to give a larger retrospective operation to a statutory provision than what can plainly be seen to have been meant by the legislature. This rule of interpretation is hallowed by time and sanctified by decisions, though we are not at all sure whether it should have validity in the context of changed social norms and values. But even so, we do not see how the retrospective introduction of the proviso in section 3 can be construed so as to leave unimpaired a decree for eviction already passed, when the question arises in execution whether it is a nullity. The logical and inevitable consequence of the introduction of the proviso in section 3 with retrospective effect would be to read the proviso as if it were part or the section at the date when the Delhi Rent Control Act, 1958 was enacted and the legal fiction created by the retrospective operation must be carried to its logical extent and all the consequences and incidents must be worked out as if the proviso formed part of the section right from the beginning. This would clearly render the decree for eviction a nullity and since in execution proceeding, an objection as to nullity of a decree c an always be raised and the executing court can examine whether the decree is a nullity, the principle of finality of the decree cannot be invoked by the appellant to avoid the consequences and incidents flowing from the retrospective introduction of the proviso in section 3. Moreover the words notwithstanding any Judgment, decree or order of any court or other authority in the proviso make it clear and leave no doubt that the legislature intended that the finality of "judgment, decree or order of any court or other authority" should not stand in the way of giving full effect to the retrospective introduction of the proviso in section 3 and applying the provisions of the Delhi Rent Control Act, 1958 in cases falling m the proviso.We are therefore, of the view that the High Court was right in taking the view that by reason of the introduction of the proviso in section 3 with retrospective effect the decree for eviction was a nullity and the executing court was justified in declining to execute it against the respondent.4. | 0[ds]It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against theposition which obtained when the suit for eviction was instituted by the appellant against the respondent was that section 3, as it stood prior to its amendment by Act 4 o f 1963, was in force and that excluded the applicability of the Delhi Rent Control Act. 1958 to premises belonging to the Government. The premises in the present case, were vested in the Government under section 12 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 and they were sold by public auction to the appellant and though full purchase price was paid by the appellant and the sale was confirmed in his favor and possession was also handed over to him, the certificate of sale was, for some inexplicable reason, not issued in his favour. The Trial Court, therefore, took the view, and this view was affirmed by the Additional District Judge as well as the High Court, that the appellant did not become the owner of the premises and they continued to belong to the Government and for this reason, it was held thatthe Delhi Rent Control Act, 1958 did not apply to the premises and the civil court had jurisdiction to entertain the suit for eviction. The Trial Court also found, and this finding to o was accepted by the Additional District Judge as well as the High Court, that though the certificate of sale was not issued in his favour, the appellant was competent to let out the premises and the letting of the premises by him in favour of the respondent on 1st Septem- ber, 1956 was lawful and since the tenancy of the respond- ent was validly terminated by the appellant by giving notice to quit, the appellant was entitled to a decree for eviction against the respondent. But, as pointed out above, section 3 was amended with retrospective effect by the introduction of the proviso and the question is whether the introduction of the proviso with retrospective effect had the effect of rendering the decree for eviction null and void. Since the proviso was introduced with retrospective effect, it must be deemed to be part of section 3 since the time thatthe Delhi Rent Control Act, 1958 was enacted. It was pointed out by Lord Asquith of Bishopstone in EastEnd Dwellings Co. Ltd. v. Finsbury Borough Council ([1952] A..C.132.) in a passage which has become classical by reason of its felicity of language that "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute Says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of. affairs". The proviso must, therefore, for all legal pur- poses, be deemed to have been included in section 3 as from the date of enactment of the Delhi Rent. Control Act, 1958. If that be the true position, then obviously it must be held that the provisions ofthe Delhi Rent Control Act, 1958 were applicable to the tenancy of the respondent, for the premises though belonging to the Government, were law- fully let out by the appellant to the respondent and the condition of the proviso was satisfied. That was then which, by reason of the legal fiction brought about by the retrospective introduction of the proviso in section, 3, must be held to have prevailed at the date. of the instit u- tion of the suit and the provisions of the Delhi Rent Con- trol Act, 1958 being applicable, it must be concluded that the civil court had no inherent jurisdiction to entertain the suit (vide section 50) and the decree for eviction was a nullity. Prima facie, it may appear somewhat strange that a decree for eviction which was good and valid when it was made should be treated as null and void by virtue-of the retrospective introduction of the proviso in section 3. But such a result is necessarily involved in the legal fiction created by the retrospective operation of the proviso. If, as a result of the said fiction, we must read the proviso as forming part of section 3 as from the date of enactment ofthe Delhi Rent Control Act, 1958, the conclu- sion is inescapable that the civil court had no inherent jurisdiction to entertain the suit and the Trial Court as well as the Additional District Judge and the High Court were in error in exercising jurisdiction in relation to the suit when their Jurisdiction was clearly excluded by section 50.Now, it is true, and that is a settled principle of construction, that the court ought not to give a larger retrospective operation to a statutory provision than what can plainly be seen to have been meant by the legislature. This rule of interpretation is hallowed by time and sanctified by decisions, though we are not at all sure whether it should have validity in the context of changed social norms and values. But even so, we do not see how the retrospective introduction of the proviso in section 3 can be construed so as to leave unimpaired a decree for eviction already passed, when the question arises in execution whether it is a nullity. The logical and inevitable consequence of the introduction of the proviso in section 3 with retrospective effect would be to read the proviso as if it were part or the section at the date whenthe Delhi Rent Control Act, 1958 was enacted and the legal fiction created by the retrospective operation must be carried to its logical extent and all the consequences and incidents must be worked out as if the proviso formed part of the section right from the beginning. This would clearly render the decree for eviction a nullity and since in execution proceeding, an objection as to nullity of a decree c an always be raised and the executing court can examine whether the decree is a nullity, the principle of finality of the decree cannot be invoked by the appellant to avoid the consequences and incidents flowing from the retrospective introduction of the proviso in section 3. Moreover the words notwithstanding any Judgment, decree or order of any court or other authority in the proviso make it clear and leave no doubt that the legislature intended that the finality of "judgment, decree or order of any court or other authority" should not stand in the way of giving full effect to the retrospective introduction of the proviso in section 3 and applying the provisions ofthe Delhi Rent Control Act, 1958 in cases falling m the proviso.We are therefore, of the view that the High Court was right in taking the view that by reason of the introduction of the proviso in section 3 with retrospective effect the decree for eviction was a nullity and the executing court was justified in declining to execute it against the respondent. | 0 | 3,661 | 1,388 | ### 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.
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1st Septem- ber, 1956 was lawful and since the tenancy of the respond- ent was validly terminated by the appellant by giving notice to quit, the appellant was entitled to a decree for eviction against the respondent. But, as pointed out above, section 3 was amended with retrospective effect by the introduction of the proviso and the question is whether the introduction of the proviso with retrospective effect had the effect of rendering the decree for eviction null and void. Since the proviso was introduced with retrospective effect, it must be deemed to be part of section 3 since the time that the Delhi Rent Control Act, 1958 was enacted. It was pointed out by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council ([1952] A..C. 132.) in a passage which has become classical by reason of its felicity of language that "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute Says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of. affairs". The proviso must, therefore, for all legal pur- poses, be deemed to have been included in section 3 as from the date of enactment of the Delhi Rent. Control Act, 1958. If that be the true position, then obviously it must be held that the provisions of the Delhi Rent Control Act, 1958 were applicable to the tenancy of the respondent, for the premises though belonging to the Government, were law- fully let out by the appellant to the respondent and the condition of the proviso was satisfied. That was the position which, by reason of the legal fiction brought about by the retrospective introduction of the proviso in section, 3, must be held to have prevailed at the date. of the instit u- tion of the suit and the provisions of the Delhi Rent Con- trol Act, 1958 being applicable, it must be concluded that the civil court had no inherent jurisdiction to entertain the suit (vide section 50) and the decree for eviction was a nullity. Prima facie, it may appear somewhat strange that a decree for eviction which was good and valid when it was made should be treated as null and void by virtue-of the retrospective introduction of the proviso in section 3. But such a result is necessarily involved in the legal fiction created by the retrospective operation of the proviso. If, as a result of the said fiction, we must read the proviso as forming part of section 3 as from the date of enactment of the Delhi Rent Control Act, 1958, the conclu- sion is inescapable that the civil court had no inherent jurisdiction to entertain the suit and the Trial Court as well as the Additional District Judge and the High Court were in error in exercising jurisdiction in relation to the suit when their Jurisdiction was clearly excluded by section 50.The appellant, however, urged that the introduction of the proviso in section 3 should not be given greater retrospective operation than necessary and it should not be so construed as to affect decrees for eviction which had already become final between the parties. Now, it is true, and that is a settled principle of construction, that the court ought not to give a larger retrospective operation to a statutory provision than what can plainly be seen to have been meant by the legislature. This rule of interpretation is hallowed by time and sanctified by decisions, though we are not at all sure whether it should have validity in the context of changed social norms and values. But even so, we do not see how the retrospective introduction of the proviso in section 3 can be construed so as to leave unimpaired a decree for eviction already passed, when the question arises in execution whether it is a nullity. The logical and inevitable consequence of the introduction of the proviso in section 3 with retrospective effect would be to read the proviso as if it were part or the section at the date when the Delhi Rent Control Act, 1958 was enacted and the legal fiction created by the retrospective operation must be carried to its logical extent and all the consequences and incidents must be worked out as if the proviso formed part of the section right from the beginning. This would clearly render the decree for eviction a nullity and since in execution proceeding, an objection as to nullity of a decree c an always be raised and the executing court can examine whether the decree is a nullity, the principle of finality of the decree cannot be invoked by the appellant to avoid the consequences and incidents flowing from the retrospective introduction of the proviso in section 3. Moreover the words notwithstanding any Judgment, decree or order of any court or other authority in the proviso make it clear and leave no doubt that the legislature intended that the finality of "judgment, decree or order of any court or other authority" should not stand in the way of giving full effect to the retrospective introduction of the proviso in section 3 and applying the provisions of the Delhi Rent Control Act, 1958 in cases falling m the proviso.We are therefore, of the view that the High Court was right in taking the view that by reason of the introduction of the proviso in section 3 with retrospective effect the decree for eviction was a nullity and the executing court was justified in declining to execute it against the respondent.4.
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finding to o was accepted by the Additional District Judge as well as the High Court, that though the certificate of sale was not issued in his favour, the appellant was competent to let out the premises and the letting of the premises by him in favour of the respondent on 1st Septem- ber, 1956 was lawful and since the tenancy of the respond- ent was validly terminated by the appellant by giving notice to quit, the appellant was entitled to a decree for eviction against the respondent. But, as pointed out above, section 3 was amended with retrospective effect by the introduction of the proviso and the question is whether the introduction of the proviso with retrospective effect had the effect of rendering the decree for eviction null and void. Since the proviso was introduced with retrospective effect, it must be deemed to be part of section 3 since the time thatthe Delhi Rent Control Act, 1958 was enacted. It was pointed out by Lord Asquith of Bishopstone in EastEnd Dwellings Co. Ltd. v. Finsbury Borough Council ([1952] A..C.132.) in a passage which has become classical by reason of its felicity of language that "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute Says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of. affairs". The proviso must, therefore, for all legal pur- poses, be deemed to have been included in section 3 as from the date of enactment of the Delhi Rent. Control Act, 1958. If that be the true position, then obviously it must be held that the provisions ofthe Delhi Rent Control Act, 1958 were applicable to the tenancy of the respondent, for the premises though belonging to the Government, were law- fully let out by the appellant to the respondent and the condition of the proviso was satisfied. That was then which, by reason of the legal fiction brought about by the retrospective introduction of the proviso in section, 3, must be held to have prevailed at the date. of the instit u- tion of the suit and the provisions of the Delhi Rent Con- trol Act, 1958 being applicable, it must be concluded that the civil court had no inherent jurisdiction to entertain the suit (vide section 50) and the decree for eviction was a nullity. Prima facie, it may appear somewhat strange that a decree for eviction which was good and valid when it was made should be treated as null and void by virtue-of the retrospective introduction of the proviso in section 3. But such a result is necessarily involved in the legal fiction created by the retrospective operation of the proviso. If, as a result of the said fiction, we must read the proviso as forming part of section 3 as from the date of enactment ofthe Delhi Rent Control Act, 1958, the conclu- sion is inescapable that the civil court had no inherent jurisdiction to entertain the suit and the Trial Court as well as the Additional District Judge and the High Court were in error in exercising jurisdiction in relation to the suit when their Jurisdiction was clearly excluded by section 50.Now, it is true, and that is a settled principle of construction, that the court ought not to give a larger retrospective operation to a statutory provision than what can plainly be seen to have been meant by the legislature. This rule of interpretation is hallowed by time and sanctified by decisions, though we are not at all sure whether it should have validity in the context of changed social norms and values. But even so, we do not see how the retrospective introduction of the proviso in section 3 can be construed so as to leave unimpaired a decree for eviction already passed, when the question arises in execution whether it is a nullity. The logical and inevitable consequence of the introduction of the proviso in section 3 with retrospective effect would be to read the proviso as if it were part or the section at the date whenthe Delhi Rent Control Act, 1958 was enacted and the legal fiction created by the retrospective operation must be carried to its logical extent and all the consequences and incidents must be worked out as if the proviso formed part of the section right from the beginning. This would clearly render the decree for eviction a nullity and since in execution proceeding, an objection as to nullity of a decree c an always be raised and the executing court can examine whether the decree is a nullity, the principle of finality of the decree cannot be invoked by the appellant to avoid the consequences and incidents flowing from the retrospective introduction of the proviso in section 3. Moreover the words notwithstanding any Judgment, decree or order of any court or other authority in the proviso make it clear and leave no doubt that the legislature intended that the finality of "judgment, decree or order of any court or other authority" should not stand in the way of giving full effect to the retrospective introduction of the proviso in section 3 and applying the provisions ofthe Delhi Rent Control Act, 1958 in cases falling m the proviso.We are therefore, of the view that the High Court was right in taking the view that by reason of the introduction of the proviso in section 3 with retrospective effect the decree for eviction was a nullity and the executing court was justified in declining to execute it against the respondent.
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K.C. Ashok Vs. Kerala Public Service Commission | is made out and accordingly the submission of learned counsel is devoid of any substance. 15. Learned counsel for the appellants, next submitted that as in these appeals one advertisement was issued for making selection in 14 districts and though the candidates had applied in more than one district but they could appear only in one district in view of the fact that test was conducted in all the districts on one day, rule restricting filing of application for one district incorporated in Note-2 of the notification should be read down in its application to the cases like the appellants. The submission has been made only to be rejected as in the present case we have already held that the aforesaid restriction contained in Note-2 is not violative of Article 14 of the Constitution, therefore, the question of reading down the same does not arise. Reference in this connection may made to the decision of the Court in the case of Electronics Corporation of India Ltd. and others v. Secretary, Revenue Department, Govt. of Andhra Pradesh and others, 1999(4) SCC 458, in which case it was submitted that Article 285 of the Constitution was intended to protect public revenue, the shares of appellant Companies, in those appeals, being fully owned by the Central Government, their funds were public revenue. As such it was found not necessary to read down the provisions of Sections 2(j) and 12 of Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 (14 of 1963) to exclude therefrom all but private owners and lessees of land. This Court while rejecting the submission observed thus : "The question of reading down comes in if it is found that these provisions are ultra vires as they stand. We have held that these provisions are not ultra vires because Article 285 does not apply when the property that is to be taxed is not of the Union of India but of a distinct and separate legal entity. Each of the appellants being companies registered under the Companies Act, they are entities other than the Union of India. The question of reading down does not, therefore, arise." 16. Learned counsel for the appellants further submitted that out of 1270 candidates 436 persons including appellants in these appeals applied for more than one district as they were misled by the short notification dated 11.4.1996 and were not aware of the penal provisions contained in Note-(2) of gazette notification dated 2.4.1996. In this regard, it may be stated that in the concluding portion of the short notification dated 11.4.1996 it was specifically mentioned that for more details a candidate was required to refer to concerned notification meaning thereby the aforesaid notification dated 2.4.1996. Moreover it has been further stated in the short notification that model application form has been appended in the gazette notification again meaning thereby notification dated 2.4.1996. In these cases some of the appellants in their application form, in reply to column 8(b), which required a candidate to state whether he had applied in more than one district, had stated `No and others `Yes, though all of them had applied in more than one district. In view of language in the short notification a candidate was obliged under law to look into the gazette notification dated 2.4.1996, more so when in the application form which was duly filled up by the appellants, it was specifically enumerated that "candidates should read the relevant gazette notification inviting applications before filling up the application form". Thus we find no substance in this submission as well. 17. Learned counsel for the appellants also submitted that decision of this Court in the case of O.N. Omana v. Kerala Public Service Commisison and others, S.L.P. (Civil) No. 12562 of 1999, is quite distinguishable as in that case though there was one notification inviting applications for appointment in several districts and similar restriction was there and in contravention of the same application was filed for appointment in more than one district, but written test was conducted in different districts on different dates and not on one date and the candidates appeared in more than one district. In our view, though in the present case written test was conducted in all the 14 districts on one day but that cannot be a ground for making any distinction. Applications of some of the appellants have been rejected on the ground that though they had applied for appointment in more than one district but made a false declaration that they had applied in one district only whereas in other cases they did apply in more than one district and stated in the application that they had so applied. According to the gazette notification both the grounds were independently sufficient for rejection of candidature of a candidate. It appears that the Commisison has been liberal in simply rejecting their candidature for the time being and had not debarred them from applying for any public post either for a specified period or permanently inasmuch as for making a false declaration though the appellant were liable to be criminally prosecuted but no such steps have been taken against them. 18. Learned counsel for the appellants lastly submitted that as number of appellants had crossed the upper age limit and number of vacancies are available, without disturbing already selected candidates, the appellants can be considered for selection on the basis of their placement in the merit list. In our view seeing the conduct of appellants in making false declaration and applying in more than on district in contravention of gazette notification, it is not possible to accede to their prayer even on equitable grounds. 19. For the foregoing reasons we are in respectful agreement with the view expressed by a two-Judge Bench of this Court in the case of Omana and the High Court was quite justified in upholding order of rejection of candidature of the appellants by the Commission. 20. Accordingly the appeals are dismissed but there shall be no order as to costs. | 0[ds]16. Learned counsel for the appellants further submitted that out of 1270 candidates 436 persons including appellants in these appeals applied for more than one district as they were misled by the short notification dated 11.4.1996 and were not aware of the penal provisions contained in Note-(2) of gazette notification dated 2.4.1996. In this regard, it may be stated that in the concluding portion of the short notification dated 11.4.1996 it was specifically mentioned that for more details a candidate was required to refer to concerned notification meaning thereby the aforesaid notification dated 2.4.1996. Moreover it has been further stated in the short notification that model application form has been appended in the gazette notification again meaning thereby notification dated 2.4.1996. In these cases some of the appellants in their application form, in reply to column 8(b), which required a candidate to state whether he had applied in more than one district, had stated `No and others `Yes, though all of them had applied in more than one district. In view of language in the short notification a candidate was obliged under law to look into the gazette notification dated 2.4.1996, more so when in the application form which was duly filled up by the appellants, it was specifically enumerated that "candidates should read the relevant gazette notification inviting applications before filling up the application form". Thus we find no substance in this submission as well.Learned counsel for the appellants also submitted that decision of this Court in the case of O.N. Omana v. Kerala Public Service Commisison and others, S.L.P. (Civil) No. 12562 of 1999, is quite distinguishable as in that case though there was one notification inviting applications for appointment in several districts and similar restriction was there and in contravention of the same application was filed for appointment in more than one district, but written test was conducted in different districts on different dates and not on one date and the candidates appeared in more than one district. In our view, though in the present case written test was conducted in all the 14 districts on one day but that cannot be a ground for making any distinction. Applications of some of the appellants have been rejected on the ground that though they had applied for appointment in more than one district but made a false declaration that they had applied in one district only whereas in other cases they did apply in more than one district and stated in the application that they had so applied. According to the gazette notification both the grounds were independently sufficient for rejection of candidature of a candidate. It appears that the Commisison has been liberal in simply rejecting their candidature for the time being and had not debarred them from applying for any public post either for a specified period or permanently inasmuch as for making a false declaration though the appellant were liable to be criminally prosecuted but no such steps have been taken against them.Learned counsel for the appellants lastly submitted that as number of appellants had crossed the upper age limit and number of vacancies are available, without disturbing already selected candidates, the appellants can be considered for selection on the basis of their placement in the merit list.In our view seeing the conduct of appellants in making false declaration and applying in more than on district in contravention of gazette notification, it is not possible to accede to their prayer even on equitable grounds. | 0 | 5,278 | 624 | ### Instruction:
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is made out and accordingly the submission of learned counsel is devoid of any substance. 15. Learned counsel for the appellants, next submitted that as in these appeals one advertisement was issued for making selection in 14 districts and though the candidates had applied in more than one district but they could appear only in one district in view of the fact that test was conducted in all the districts on one day, rule restricting filing of application for one district incorporated in Note-2 of the notification should be read down in its application to the cases like the appellants. The submission has been made only to be rejected as in the present case we have already held that the aforesaid restriction contained in Note-2 is not violative of Article 14 of the Constitution, therefore, the question of reading down the same does not arise. Reference in this connection may made to the decision of the Court in the case of Electronics Corporation of India Ltd. and others v. Secretary, Revenue Department, Govt. of Andhra Pradesh and others, 1999(4) SCC 458, in which case it was submitted that Article 285 of the Constitution was intended to protect public revenue, the shares of appellant Companies, in those appeals, being fully owned by the Central Government, their funds were public revenue. As such it was found not necessary to read down the provisions of Sections 2(j) and 12 of Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 (14 of 1963) to exclude therefrom all but private owners and lessees of land. This Court while rejecting the submission observed thus : "The question of reading down comes in if it is found that these provisions are ultra vires as they stand. We have held that these provisions are not ultra vires because Article 285 does not apply when the property that is to be taxed is not of the Union of India but of a distinct and separate legal entity. Each of the appellants being companies registered under the Companies Act, they are entities other than the Union of India. The question of reading down does not, therefore, arise." 16. Learned counsel for the appellants further submitted that out of 1270 candidates 436 persons including appellants in these appeals applied for more than one district as they were misled by the short notification dated 11.4.1996 and were not aware of the penal provisions contained in Note-(2) of gazette notification dated 2.4.1996. In this regard, it may be stated that in the concluding portion of the short notification dated 11.4.1996 it was specifically mentioned that for more details a candidate was required to refer to concerned notification meaning thereby the aforesaid notification dated 2.4.1996. Moreover it has been further stated in the short notification that model application form has been appended in the gazette notification again meaning thereby notification dated 2.4.1996. In these cases some of the appellants in their application form, in reply to column 8(b), which required a candidate to state whether he had applied in more than one district, had stated `No and others `Yes, though all of them had applied in more than one district. In view of language in the short notification a candidate was obliged under law to look into the gazette notification dated 2.4.1996, more so when in the application form which was duly filled up by the appellants, it was specifically enumerated that "candidates should read the relevant gazette notification inviting applications before filling up the application form". Thus we find no substance in this submission as well. 17. Learned counsel for the appellants also submitted that decision of this Court in the case of O.N. Omana v. Kerala Public Service Commisison and others, S.L.P. (Civil) No. 12562 of 1999, is quite distinguishable as in that case though there was one notification inviting applications for appointment in several districts and similar restriction was there and in contravention of the same application was filed for appointment in more than one district, but written test was conducted in different districts on different dates and not on one date and the candidates appeared in more than one district. In our view, though in the present case written test was conducted in all the 14 districts on one day but that cannot be a ground for making any distinction. Applications of some of the appellants have been rejected on the ground that though they had applied for appointment in more than one district but made a false declaration that they had applied in one district only whereas in other cases they did apply in more than one district and stated in the application that they had so applied. According to the gazette notification both the grounds were independently sufficient for rejection of candidature of a candidate. It appears that the Commisison has been liberal in simply rejecting their candidature for the time being and had not debarred them from applying for any public post either for a specified period or permanently inasmuch as for making a false declaration though the appellant were liable to be criminally prosecuted but no such steps have been taken against them. 18. Learned counsel for the appellants lastly submitted that as number of appellants had crossed the upper age limit and number of vacancies are available, without disturbing already selected candidates, the appellants can be considered for selection on the basis of their placement in the merit list. In our view seeing the conduct of appellants in making false declaration and applying in more than on district in contravention of gazette notification, it is not possible to accede to their prayer even on equitable grounds. 19. For the foregoing reasons we are in respectful agreement with the view expressed by a two-Judge Bench of this Court in the case of Omana and the High Court was quite justified in upholding order of rejection of candidature of the appellants by the Commission. 20. Accordingly the appeals are dismissed but there shall be no order as to costs.
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16. Learned counsel for the appellants further submitted that out of 1270 candidates 436 persons including appellants in these appeals applied for more than one district as they were misled by the short notification dated 11.4.1996 and were not aware of the penal provisions contained in Note-(2) of gazette notification dated 2.4.1996. In this regard, it may be stated that in the concluding portion of the short notification dated 11.4.1996 it was specifically mentioned that for more details a candidate was required to refer to concerned notification meaning thereby the aforesaid notification dated 2.4.1996. Moreover it has been further stated in the short notification that model application form has been appended in the gazette notification again meaning thereby notification dated 2.4.1996. In these cases some of the appellants in their application form, in reply to column 8(b), which required a candidate to state whether he had applied in more than one district, had stated `No and others `Yes, though all of them had applied in more than one district. In view of language in the short notification a candidate was obliged under law to look into the gazette notification dated 2.4.1996, more so when in the application form which was duly filled up by the appellants, it was specifically enumerated that "candidates should read the relevant gazette notification inviting applications before filling up the application form". Thus we find no substance in this submission as well.Learned counsel for the appellants also submitted that decision of this Court in the case of O.N. Omana v. Kerala Public Service Commisison and others, S.L.P. (Civil) No. 12562 of 1999, is quite distinguishable as in that case though there was one notification inviting applications for appointment in several districts and similar restriction was there and in contravention of the same application was filed for appointment in more than one district, but written test was conducted in different districts on different dates and not on one date and the candidates appeared in more than one district. In our view, though in the present case written test was conducted in all the 14 districts on one day but that cannot be a ground for making any distinction. Applications of some of the appellants have been rejected on the ground that though they had applied for appointment in more than one district but made a false declaration that they had applied in one district only whereas in other cases they did apply in more than one district and stated in the application that they had so applied. According to the gazette notification both the grounds were independently sufficient for rejection of candidature of a candidate. It appears that the Commisison has been liberal in simply rejecting their candidature for the time being and had not debarred them from applying for any public post either for a specified period or permanently inasmuch as for making a false declaration though the appellant were liable to be criminally prosecuted but no such steps have been taken against them.Learned counsel for the appellants lastly submitted that as number of appellants had crossed the upper age limit and number of vacancies are available, without disturbing already selected candidates, the appellants can be considered for selection on the basis of their placement in the merit list.In our view seeing the conduct of appellants in making false declaration and applying in more than on district in contravention of gazette notification, it is not possible to accede to their prayer even on equitable grounds.
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BALKRISHNA RAM Vs. UNION OF INDIA | 882 ). The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar (supra). 15. Ms. Dwivedi, placed reliance on the observations made in Major General Shri Kant Sharma (supra) that, ?jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of the civil court and the High Court so far as it relates to suit relating to condition of service of the persons?, subject to the provisions of the Act. It is clear that the intention of the court was not to hold that the tribunal is a substitute of the High Court in so far as its writ jurisdiction is concerned because that is specifically excluded under Section 14(1) of the Act. We cannot read this one sentence out of context. It is true that proceedings on the original side even in exercise of writ jurisdiction are to be transferred to the tribunal for decision by the AFT because the original jurisdiction now vests with the AFT. This however, does not mean that the AFT can exercise all the powers of the High Court. 16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors. 2019 (15) SCALE 615 the Constitution Bench of this Court, of which one of us (Deepak Gupta, J. was a member), clearly held that though these tribunals may be manned by retired judges of High Courts and Supreme Court, including those established under Articles 323-A and 323-B of the Constitution, they cannot seek equivalence with the High Court or the Supreme Court. The following observations are relevant:-?194. Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323- B of the Constitution cannot seek equivalence with High Court or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he / she no longer enjoys the Constitutional status, the statutory position occupied by him / her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme.? 17. The contention of the learned counsel for the appellant, if accepted, would strike at the very root of judicial independence and make the High Court subordinate to the AFT. This can never be the intention of the Legislature. The High Court is a Constitutional Court constituted under Article 214 of the Constitution and are courts of record within the meaning of Article 215. It is obvious that the order of the High Court cannot be challenged before any other forum except the Supreme Court. The provision of intra-court appeal whether by way of Letters Patents or special enactment is a system that provides for correction of judgments within the High Courts where a judgment rendered by a single judge may be subject to challenge before a Division Bench. This appeal to the Division Bench does not lie in all cases and must be provided for either under the Letters Patent or any other special enactment. Even where such appeal lies the appeal is heard by two or more judges of the High Court. We cannot envisage a situation where an appeal against the order of a sitting judge of the High Court is heard by a Tribunal comprising of one retired judge and one retired Armed Forces official. Therefore, we reject the contention that an intra court appeal from the judgment of a single judge of the High Court to a Division Bench pending in the High Court is required to be transferred under Section 34 of the Act. 18. As far as the merits of the case are concerned, the undisputed fact is that the appellant could not clear the aptitude test. It has been urged that even if he could not clear the aptitude test, he should have been considered for appointment in some other post before being discharged from service. It is also urged that in the order of discharge it is not indicated that the case of the appellant was considered for such alternative service. 19. In our view, it is not necessary to indicate in the order of discharge whether such consideration took place or not. From the records of the case, we find that before discharge, the name of the appellant was considered for two categories but unfortunately the appellant could not meet the height criteria for appointment to either of the posts. Thus, this clearly shows that his case was considered as per the extant policy but he was not fit for appointment. | 0[ds]10. We are not at all in agreement with this submission. Section 14(1) of the Act quoted hereinabove clearly provides that the AFT will exercise powers of all courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and 227 of the Constitution of India. Section 34 is very carefully worded. It states that ‘every suit?, or ‘other proceedings? pending before any court including a High Court immediately before the establishment of the Tribunal shall stand transferred on that day to the Tribunal. The Legislature has clearly not vested the AFT with the power and jurisdiction of the High Court to be exercised under Article 226 of the Constitution. We are not going into the question as to whether the Tribunal is amenable to the supervisory jurisdiction of a High Court under Article 227 of the Constitution but there can be no manner of doubt that the High Court can exercise its writ jurisdiction even in respect of orders passed by the AFT. True it is, that since an appeal lies to the Supreme Court against an order of the AFT, the High Court may not exercise their extraordinary writ jurisdiction because there is an efficacious alternative remedy available but that does not mean that the jurisdiction of the High Court is taken away. In a given circumstance, the High Court may and can exercise its extraordinary writ jurisdiction even against the orders of the High Court13. Reliance placed by Ms. Dwivedi on the judgment of this Court in Major General Shri Kant Sharma (supra) is entirely misplaced. The issue before this Court in this case was whether the High Court was justified in entertaining writ petitions against the orders of the AFT. This is a judgment by two judges and obviously it cannot overrule the judgment of the Constitution Bench in L. Chandra Kumar (supra). The Division Bench, after referring to various judgments including the judgment in L. Chandra Kumar (supra), summarised its findings in para 36 as follows:-?36. The aforesaid decisions rendered by this Court can be summarised as follows:(i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India(ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act(iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation(iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance.?What this Court held was that though the power of the High Court under Article 226 of the Constitution is a basic essential feature of the Constitution which cannot be taken away, the High Court should not entertain a petition under Article 226 of the Constitution if any other effective alternative remedy is available to the aggrieved person or the statute, under which the action complained of has been taken, itself contains a maxim for redressal of grievance. We have our doubt, with regard to the correctness of the directions (iii) & (iv) of the judgment, since in our opinion it runs counter to the judgment rendered by the Constitution Bench14. It would be pertinent to add that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available (Union of India vs. T.R. Varma AIR 1957 SC 882 ). The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar (supra)14. It would be pertinent to add that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available (Union of India vs. T.R. Varma AIR 1957 SC 882 ). The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar (supra)15. Ms. Dwivedi, placed reliance on the observations made in Major General Shri Kant Sharma (supra) that, ?jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of the civil court and the High Court so far as it relates to suit relating to condition of service of the persons?, subject to the provisions of the Act. It is clear that the intention of the court was not to hold that the tribunal is a substitute of the High Court in so far as its writ jurisdiction is concerned because that is specifically excluded under Section 14(1) of the Act. We cannot read this one sentence out of context. It is true that proceedings on the original side even in exercise of writ jurisdiction are to be transferred to the tribunal for decision by the AFT because the original jurisdiction now vests with the AFT. This however, does not mean that the AFT can exercise all the powers of the High Court16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors. 2019 (15) SCALE 615 the Constitution Bench of this Court, of which one of us (Deepak Gupta, J. was a member), clearly held that though these tribunals may be manned by retired judges of High Courts and Supreme Court, including those established under Articles 323-A and 323-B of the Constitution, they cannot seek equivalence with the High Court or the Supreme Court. The following observations are relevant:-?194. Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323- B of the Constitution cannot seek equivalence with High Court or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he / she no longer enjoys the Constitutional status, the statutory position occupied by him / her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme.?17. The contention of the learned counsel for the appellant, if accepted, would strike at the very root of judicial independence and make the High Court subordinate to the AFT. This can never be the intention of the Legislature. The High Court is a Constitutional Court constituted under Article 214 of the Constitution and are courts of record within the meaning of Article 215. It is obvious that the order of the High Court cannot be challenged before any other forum except the Supreme Court. The provision of intra-court appeal whether by way of Letters Patents or special enactment is a system that provides for correction of judgments within the High Courts where a judgment rendered by a single judge may be subject to challenge before a Division Bench. This appeal to the Division Bench does not lie in all cases and must be provided for either under the Letters Patent or any other special enactment. Even where such appeal lies the appeal is heard by two or more judges of the High Court. We cannot envisage a situation where an appeal against the order of a sitting judge of the High Court is heard by a Tribunal comprising of one retired judge and one retired Armed Forces official. Therefore, we reject the contention that an intra court appeal from the judgment of a single judge of the High Court to a Division Bench pending in the High Court is required to be transferred under Section 34 of the Act18. As far as the merits of the case are concerned, the undisputed fact is that the appellant could not clear the aptitude test. It has been urged that even if he could not clear the aptitude test, he should have been considered for appointment in some other post before being discharged from service. It is also urged that in the order of discharge it is not indicated that the case of the appellant was considered for such alternative service19. In our view, it is not necessary to indicate in the order of discharge whether such consideration took place or not. From the records of the case, we find that before discharge, the name of the appellant was considered for two categories but unfortunately the appellant could not meet the height criteria for appointment to either of the posts. Thus, this clearly shows that his case was considered as per the extant policy but he was not fit for appointment11. While holding so, we place reliance upon a judgment of a Constitution Bench of this Court in L. Chandra Kumar vs. Union of India & Ors.(1997) 3 SCC 261 This court clearly held that judicial review is a part of the basic structure of the Constitution and the power of judicial review vested in the High Courts and the Supreme Court cannot be taken awayThe aforesaid observations in L. Chandra Kumar (supra) leave no manner of doubt that the power of judicial review vests with the High Court even with regard to orders passed by the AFT and this power is part of the basic structure of the Constitution11. While holding so, we place reliance upon a judgment of a Constitution Bench of this Court in L. Chandra Kumar vs. Union of India & Ors.(1997) 3 SCC 261 This court clearly held that judicial review is a part of the basic structure of the Constitution and the power of judicial review vested in the High Courts and the Supreme Court cannot be taken awayThe aforesaid observations in L. Chandra Kumar (supra) leave no manner of doubt that the power of judicial review vests with the High Court even with regard to orders passed by the AFT and this power is part of the basic structure of the | 0 | 4,793 | 2,466 | ### Instruction:
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882 ). The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar (supra). 15. Ms. Dwivedi, placed reliance on the observations made in Major General Shri Kant Sharma (supra) that, ?jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of the civil court and the High Court so far as it relates to suit relating to condition of service of the persons?, subject to the provisions of the Act. It is clear that the intention of the court was not to hold that the tribunal is a substitute of the High Court in so far as its writ jurisdiction is concerned because that is specifically excluded under Section 14(1) of the Act. We cannot read this one sentence out of context. It is true that proceedings on the original side even in exercise of writ jurisdiction are to be transferred to the tribunal for decision by the AFT because the original jurisdiction now vests with the AFT. This however, does not mean that the AFT can exercise all the powers of the High Court. 16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors. 2019 (15) SCALE 615 the Constitution Bench of this Court, of which one of us (Deepak Gupta, J. was a member), clearly held that though these tribunals may be manned by retired judges of High Courts and Supreme Court, including those established under Articles 323-A and 323-B of the Constitution, they cannot seek equivalence with the High Court or the Supreme Court. The following observations are relevant:-?194. Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323- B of the Constitution cannot seek equivalence with High Court or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he / she no longer enjoys the Constitutional status, the statutory position occupied by him / her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme.? 17. The contention of the learned counsel for the appellant, if accepted, would strike at the very root of judicial independence and make the High Court subordinate to the AFT. This can never be the intention of the Legislature. The High Court is a Constitutional Court constituted under Article 214 of the Constitution and are courts of record within the meaning of Article 215. It is obvious that the order of the High Court cannot be challenged before any other forum except the Supreme Court. The provision of intra-court appeal whether by way of Letters Patents or special enactment is a system that provides for correction of judgments within the High Courts where a judgment rendered by a single judge may be subject to challenge before a Division Bench. This appeal to the Division Bench does not lie in all cases and must be provided for either under the Letters Patent or any other special enactment. Even where such appeal lies the appeal is heard by two or more judges of the High Court. We cannot envisage a situation where an appeal against the order of a sitting judge of the High Court is heard by a Tribunal comprising of one retired judge and one retired Armed Forces official. Therefore, we reject the contention that an intra court appeal from the judgment of a single judge of the High Court to a Division Bench pending in the High Court is required to be transferred under Section 34 of the Act. 18. As far as the merits of the case are concerned, the undisputed fact is that the appellant could not clear the aptitude test. It has been urged that even if he could not clear the aptitude test, he should have been considered for appointment in some other post before being discharged from service. It is also urged that in the order of discharge it is not indicated that the case of the appellant was considered for such alternative service. 19. In our view, it is not necessary to indicate in the order of discharge whether such consideration took place or not. From the records of the case, we find that before discharge, the name of the appellant was considered for two categories but unfortunately the appellant could not meet the height criteria for appointment to either of the posts. Thus, this clearly shows that his case was considered as per the extant policy but he was not fit for appointment.
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0
### Explanation:
substitution of the jurisdiction of the civil court and the High Court so far as it relates to suit relating to condition of service of the persons?, subject to the provisions of the Act. It is clear that the intention of the court was not to hold that the tribunal is a substitute of the High Court in so far as its writ jurisdiction is concerned because that is specifically excluded under Section 14(1) of the Act. We cannot read this one sentence out of context. It is true that proceedings on the original side even in exercise of writ jurisdiction are to be transferred to the tribunal for decision by the AFT because the original jurisdiction now vests with the AFT. This however, does not mean that the AFT can exercise all the powers of the High Court16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors. 2019 (15) SCALE 615 the Constitution Bench of this Court, of which one of us (Deepak Gupta, J. was a member), clearly held that though these tribunals may be manned by retired judges of High Courts and Supreme Court, including those established under Articles 323-A and 323-B of the Constitution, they cannot seek equivalence with the High Court or the Supreme Court. The following observations are relevant:-?194. Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323- B of the Constitution cannot seek equivalence with High Court or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he / she no longer enjoys the Constitutional status, the statutory position occupied by him / her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme.?17. The contention of the learned counsel for the appellant, if accepted, would strike at the very root of judicial independence and make the High Court subordinate to the AFT. This can never be the intention of the Legislature. The High Court is a Constitutional Court constituted under Article 214 of the Constitution and are courts of record within the meaning of Article 215. It is obvious that the order of the High Court cannot be challenged before any other forum except the Supreme Court. The provision of intra-court appeal whether by way of Letters Patents or special enactment is a system that provides for correction of judgments within the High Courts where a judgment rendered by a single judge may be subject to challenge before a Division Bench. This appeal to the Division Bench does not lie in all cases and must be provided for either under the Letters Patent or any other special enactment. Even where such appeal lies the appeal is heard by two or more judges of the High Court. We cannot envisage a situation where an appeal against the order of a sitting judge of the High Court is heard by a Tribunal comprising of one retired judge and one retired Armed Forces official. Therefore, we reject the contention that an intra court appeal from the judgment of a single judge of the High Court to a Division Bench pending in the High Court is required to be transferred under Section 34 of the Act18. As far as the merits of the case are concerned, the undisputed fact is that the appellant could not clear the aptitude test. It has been urged that even if he could not clear the aptitude test, he should have been considered for appointment in some other post before being discharged from service. It is also urged that in the order of discharge it is not indicated that the case of the appellant was considered for such alternative service19. In our view, it is not necessary to indicate in the order of discharge whether such consideration took place or not. From the records of the case, we find that before discharge, the name of the appellant was considered for two categories but unfortunately the appellant could not meet the height criteria for appointment to either of the posts. Thus, this clearly shows that his case was considered as per the extant policy but he was not fit for appointment11. While holding so, we place reliance upon a judgment of a Constitution Bench of this Court in L. Chandra Kumar vs. Union of India & Ors.(1997) 3 SCC 261 This court clearly held that judicial review is a part of the basic structure of the Constitution and the power of judicial review vested in the High Courts and the Supreme Court cannot be taken awayThe aforesaid observations in L. Chandra Kumar (supra) leave no manner of doubt that the power of judicial review vests with the High Court even with regard to orders passed by the AFT and this power is part of the basic structure of the Constitution11. While holding so, we place reliance upon a judgment of a Constitution Bench of this Court in L. Chandra Kumar vs. Union of India & Ors.(1997) 3 SCC 261 This court clearly held that judicial review is a part of the basic structure of the Constitution and the power of judicial review vested in the High Courts and the Supreme Court cannot be taken awayThe aforesaid observations in L. Chandra Kumar (supra) leave no manner of doubt that the power of judicial review vests with the High Court even with regard to orders passed by the AFT and this power is part of the basic structure of the
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Ghunnu and Others Vs. State of Uttar Pradesh | bone. Injury 24 is incised would spindle shaped 6 inches x 3/4 inch semilunar in shape at the level just below lateral malleolus of right leg. The third injury was on the top of the right little finger of the right foot. At 4 p.m., the doctor examined Devi Prasad, PW 1 and found on him four injuries. All the injuries were simple in nature. Hira Lal, PW 3 also had four simple injuries. The post mortem disclosed 16 injuries on the person of Lalta Prasad. According to the doctor, the death was due to shock and haemorrhage, as a result of injury to the skull bones and injuries to the brain and lung. An examination of the injuries on the side of prosecution reveals that Lalta Prasad died due to fracture of skull bone and injuries to the brain and lung while Thakur Prasad sustained as many as 28 injuries, although simple, except injuries 17, 24 and 28. The grievous injuries were fractures of a finger in the right hand and a toe in the foot.11-12. The injuries that were found on the appellants may now be noted Lachhman had one grievous injury, incised wound 2 1/2 inches x 3/4 inch on the upper end of left forearm on its posterior aspect cutting the ulna bone underneath oblique in direction. The injuries according to the doctor were caused by some sharp-edged weapon. The appellant, Madhu had three injuries : (1) Three lacerated marginal circular wounds 1/10 inch x 1/10 inch x skin deep in area of 4 inches x 3 inches on the front of thigh at its middle 1/3rd. (2) Three lacerated marginal circular wounds 1/10 inch x 1/10 inch x skin deep in area of 4 inches x 3 inches on the front and outer side of left leg on its upper 1/3rd. (3) Three lacerated marginal circular wounds 1/10 inch x 1/10 inch x 1/10 skin deep tone on inner side and one on inner side of right foot. These injuries were caused by some firearm pellets. The appellant, Behari had two injuries on his person : (1) Two lacerated marginal circular wounds 1/10 inch x 1/10 inch x skin deep in area of 4 inches x 2 inches on the back left forearm at its upper 1/4th. (2) One lacerated marginal circular wound 1/10 inch x 1/10 inch x skin deep on the outer side of the left foot. These injuries were caused by some firearm pellets. Burn marks were not found. Dhunnu had four injuries on his person. Injuries 3 and 4 are marginal circular wound 1/10 inch x 1/10 inch x skin deep, probably due to pellets. Devi had three injuries on his person and according to the doctor were caused by firearm pellets. Kishori Lal had two injuries and according to the doctor were caused by firearm pellets. Thus it will be seen, while appellant, Lachhman had a grievous incised pellets, cutting the ulna bone, the other five appellants, Madhu, Behari, Dhunnu, Devi and Kishori Lal had gunshot injuries caused by pellets. 13. According to the version given by the prosecution in the First Information Report, the accused, armed with various weapons, emerged out of the sugar-cane field, began to assault Thakur Prasad and Lalta Prasad and at that time Lalta Prasad, in order to save his life, having taken out the pistol, tried to fire it and the pistol gave noise. This version of the prosecution would indicate that the pistol was fired at close range. Though five persons were injured according to the prosecution, only one shot was fired but the courts below found it to be likely that at least two shots were fired. Taking into account the spread of the pellets and the injury on five persons in various parts of the body, we agree with the courts below that at least two shots would have been fired. Probabilities are that shots were fired from a distance for, otherwise it is unlikely that the pellets would have spread so as to injure five persons on various parts of their bodies. If the prosecution version is true that the firing was after the accused started assaulting Lalta Prasad and when they were at close range, the injuries from the pistol would have been of a different nature. There is no indication of any burning or scorching. On the other hand, the spreading of the pellets would indicate that the shots were fired from a distance. This circumstance would show that the prosecution story that the shot was fired at close range cannot be accepted. If it was fired from a distance, the question arises as to why it became necessary to fire. Though it cannot be stated, with certainty, it is quite probable that after the firing took place, the prosecution party was attacked. The 28 injuries found on Thakur Prasad and the injuries caused to Lalta Prasad would indicate that there was persistent beating by the accused though the attack might have taken place after the firing of the pistol. 14. On a careful consideration of the injuries found on the prosecution party as well as the accused, and the nature of the gunshot injuries, we find it impossible to reject the case of the defence that the attack by them followed the firing of the pistol. While what happened cannot be determined with certainty, we feel that this is a case in which the appellants are entitled to the benefit of doubt. In the result, we find that the appellants caused injuries after the firing of at least two shots from the pistol. As 28 injuries were caused to Thakur Prasad and the skull bone of Lalta Prasad was fractured resulting in his death after the pistol had been snatched, it can be safely presumed that the accused exceeded their right of private defence and caused the injuries when there could have been no cause for apprehension that death or grievous injury would be caused to them. | 1[ds]On a careful consideration of the injuries found on the prosecution party as well as the accused, and the nature of the gunshot injuries, we find it impossible to reject the case of the defence that the attack by them followed the firing of the pistol. While what happened cannot be determined with certainty, we feel that this is a case in which the appellants are entitled to the benefit of doubt. In the result, we find that the appellants caused injuries after the firing of at least two shots from the pistol. As 28 injuries were caused to Thakur Prasad and the skull bone of Lalta Prasad was fractured resulting in his death after the pistol had been snatched, it can be safely presumed that the accused exceeded their right of private defence and caused the injuries when there could have been no cause for apprehension that death or grievous injury would be caused to them. | 1 | 3,953 | 171 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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bone. Injury 24 is incised would spindle shaped 6 inches x 3/4 inch semilunar in shape at the level just below lateral malleolus of right leg. The third injury was on the top of the right little finger of the right foot. At 4 p.m., the doctor examined Devi Prasad, PW 1 and found on him four injuries. All the injuries were simple in nature. Hira Lal, PW 3 also had four simple injuries. The post mortem disclosed 16 injuries on the person of Lalta Prasad. According to the doctor, the death was due to shock and haemorrhage, as a result of injury to the skull bones and injuries to the brain and lung. An examination of the injuries on the side of prosecution reveals that Lalta Prasad died due to fracture of skull bone and injuries to the brain and lung while Thakur Prasad sustained as many as 28 injuries, although simple, except injuries 17, 24 and 28. The grievous injuries were fractures of a finger in the right hand and a toe in the foot.11-12. The injuries that were found on the appellants may now be noted Lachhman had one grievous injury, incised wound 2 1/2 inches x 3/4 inch on the upper end of left forearm on its posterior aspect cutting the ulna bone underneath oblique in direction. The injuries according to the doctor were caused by some sharp-edged weapon. The appellant, Madhu had three injuries : (1) Three lacerated marginal circular wounds 1/10 inch x 1/10 inch x skin deep in area of 4 inches x 3 inches on the front of thigh at its middle 1/3rd. (2) Three lacerated marginal circular wounds 1/10 inch x 1/10 inch x skin deep in area of 4 inches x 3 inches on the front and outer side of left leg on its upper 1/3rd. (3) Three lacerated marginal circular wounds 1/10 inch x 1/10 inch x 1/10 skin deep tone on inner side and one on inner side of right foot. These injuries were caused by some firearm pellets. The appellant, Behari had two injuries on his person : (1) Two lacerated marginal circular wounds 1/10 inch x 1/10 inch x skin deep in area of 4 inches x 2 inches on the back left forearm at its upper 1/4th. (2) One lacerated marginal circular wound 1/10 inch x 1/10 inch x skin deep on the outer side of the left foot. These injuries were caused by some firearm pellets. Burn marks were not found. Dhunnu had four injuries on his person. Injuries 3 and 4 are marginal circular wound 1/10 inch x 1/10 inch x skin deep, probably due to pellets. Devi had three injuries on his person and according to the doctor were caused by firearm pellets. Kishori Lal had two injuries and according to the doctor were caused by firearm pellets. Thus it will be seen, while appellant, Lachhman had a grievous incised pellets, cutting the ulna bone, the other five appellants, Madhu, Behari, Dhunnu, Devi and Kishori Lal had gunshot injuries caused by pellets. 13. According to the version given by the prosecution in the First Information Report, the accused, armed with various weapons, emerged out of the sugar-cane field, began to assault Thakur Prasad and Lalta Prasad and at that time Lalta Prasad, in order to save his life, having taken out the pistol, tried to fire it and the pistol gave noise. This version of the prosecution would indicate that the pistol was fired at close range. Though five persons were injured according to the prosecution, only one shot was fired but the courts below found it to be likely that at least two shots were fired. Taking into account the spread of the pellets and the injury on five persons in various parts of the body, we agree with the courts below that at least two shots would have been fired. Probabilities are that shots were fired from a distance for, otherwise it is unlikely that the pellets would have spread so as to injure five persons on various parts of their bodies. If the prosecution version is true that the firing was after the accused started assaulting Lalta Prasad and when they were at close range, the injuries from the pistol would have been of a different nature. There is no indication of any burning or scorching. On the other hand, the spreading of the pellets would indicate that the shots were fired from a distance. This circumstance would show that the prosecution story that the shot was fired at close range cannot be accepted. If it was fired from a distance, the question arises as to why it became necessary to fire. Though it cannot be stated, with certainty, it is quite probable that after the firing took place, the prosecution party was attacked. The 28 injuries found on Thakur Prasad and the injuries caused to Lalta Prasad would indicate that there was persistent beating by the accused though the attack might have taken place after the firing of the pistol. 14. On a careful consideration of the injuries found on the prosecution party as well as the accused, and the nature of the gunshot injuries, we find it impossible to reject the case of the defence that the attack by them followed the firing of the pistol. While what happened cannot be determined with certainty, we feel that this is a case in which the appellants are entitled to the benefit of doubt. In the result, we find that the appellants caused injuries after the firing of at least two shots from the pistol. As 28 injuries were caused to Thakur Prasad and the skull bone of Lalta Prasad was fractured resulting in his death after the pistol had been snatched, it can be safely presumed that the accused exceeded their right of private defence and caused the injuries when there could have been no cause for apprehension that death or grievous injury would be caused to them.
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1
### Explanation:
On a careful consideration of the injuries found on the prosecution party as well as the accused, and the nature of the gunshot injuries, we find it impossible to reject the case of the defence that the attack by them followed the firing of the pistol. While what happened cannot be determined with certainty, we feel that this is a case in which the appellants are entitled to the benefit of doubt. In the result, we find that the appellants caused injuries after the firing of at least two shots from the pistol. As 28 injuries were caused to Thakur Prasad and the skull bone of Lalta Prasad was fractured resulting in his death after the pistol had been snatched, it can be safely presumed that the accused exceeded their right of private defence and caused the injuries when there could have been no cause for apprehension that death or grievous injury would be caused to them.
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Controller of Court of Ward, Kolhapur & Another Vs. G.N. Ghorpade & Others | was pointed out on behalf of respondent 1 that the said applications did not end with the cancellation of the said notification since the question of possession of the said survey numbers still remained for decision. 10. On the reopening of the Court, the said applications appeared on board for hearing and continued to so appear until June 29, 1965. The appellants had, however, not filed any affidavit until then, although on several occasions they had obtained adjournments for filing it. When the two applications reached hearing on June 29, 1965, counsel for the Government was also absent. Consequently, the High Court proceeded with the said applications ex parte and even delivered its judgment. At the end of the day, counsel for the Government appeared and requested that he should be heard. That request was granted and counsel was heard. His arguments continued the next day. Even at that stage affidavit of the appellants was not ready. Counsel, therefore, asked for another adjournment, but the request was rejected. The arguments on behalf of the appellants were not over on that day. Since the Division Bench hearing those arguments was busy with other matters, the said arguments could not be resumed until July 13, 1965. On July 13, 1965, the appellants sought to tender their reply affidavit. That request was turned down and the Court had finally to decide the special civil applications without there being any reply to them on behalf of the appellants. On that day the learned Advocate-General appeared before the Court and sought to raise certain technical points. These were rejected as being without any merit. He also applied that respondent 1 should be made to appear before the Court as a witness to enable the appellants to cross-examine him. No such notice having been previously given to respondent 1, he was not expected to and was in fact not present in Court. The High Court rejected that application also on the ground of inordinate delay and also on the ground that the appellants had ample opportunity to traverse the statements made on affidavit by respondent 1 in his said special civil applications. Those statements, were according to the High Court evidence on affidavit and in the absence of their having been traversed, constituted a prima facie case of his right to possession of the said survey numbers. The High Court ultimately allowed the said special civil applications and directed the appellants to hand over to respondent 1 possession of the said survey numbers. 11. Mr. V. S. Desai, appearing for the appellants argued that the High Court erred in rejecting the appellants application for filing their counter-affidavit and thus enable them to challenge the correctness of the statements made by respondent 1 in his two special civil applications. He also argued that the appellants were not to be blamed for not having filed their counter-affidavit in time since they were under the impression that the special civil applications would not be proceeded with after the Government had cancelled the said notification. That notification, however, was cancelled on June 29th, 1965. Before that date the appellants had obtained adjournments and had got the special civil applications put off for hearing beyond the summer vacation only on the ground that they should have time to prepare and file their affidavit. Though the appellants had thus obtained time, they did not file their affidavit even on the reopening of the High Court. Even when the special civil applications ultimately reached hearing on June 29, 1965, the counter-affidavit was not ready and was not filed. Indeed, counsel for the appellants was not even present when the special civil applications reached hearing and the hearing commenced. In these circumstances the High Court cannot be blamed when it rejected a fresh attempt to have the matters adjourned to enable the appellants to file an affidavit. The High Court also cannot be blamed for refusing to accept the affidavit on July 13th, 1965, on the ground of inordinate delay. If, on that ground the High Court refused in its discretion to permit the affidavit to be filed, it is impossible to say that that discretion was exercised wrongly or in breach of any principle or practice. It was, no doubt, a pity that in such a case the High Court had to proceed with the special civil applications without the aid of a reply to them. But for that the appellants had clearly to blame themselves. The ground taken by the appellants that they did not file the reply on the assumption that the special civil applications would not be proceeded with after the cancellation of the said notification has no merit, firstly, because the appellants were told, as the High Court has pointed out in its judgment, that the cancellation of the notification did not end the matter, and secondly, because the appellants were not willing after that cancellation to hand over the said survey numbers to respondent 1. There was, therefore, no ground for the appellants to assume that the special civil applications would not be proceeded with. In these circumstances it is impossible to find any fault with the High Court for refusing to allow the counter-affidavit to go on record at that belated stage. Apart from the question as to delay, that would have also meant a further adjournment to enable respondent 1 to prepare and file his rejoinder. 12. There being thus no reply to the two special civil applications, the High Court had to accept the statements made on affidavit by respondent 1 therein as prima facie evidence of his right to possession of the lands in question. Mr. Desai frankly told us that that was the inevitable result flowing from the absence of any counter-affidavit denying the assertions made on affidavit by respondent 1. The consequence of the absence of any reply affidavit was that Mr. Desai could not urge any specific ground upon which the judgment of the High Court could be challenged by him. | 0[ds]11. Mr. V. S. Desai, appearing for the appellants argued that the High Court erred in rejecting the appellants application for filing theirt and thus enable them to challenge the correctness of the statements made by respondent 1 in his two special civil applications. He also argued that the appellants were not to be blamed for not having filed theirt in time since they were under the impression that the special civil applications would not be proceeded with after the Government had cancelled the said. That notification, however, was cancelled on June 29th, 1965. Before that date the appellants had obtained adjournments and had got the special civil applications put off for hearing beyond the summer vacation only on the ground that they should have time to prepare and file their affidavit. Though the appellants had thus obtained time, they did not file their affidavit even on the reopening of the High Court. Even when the special civil applications ultimately reached hearing on June 29, 1965, thet was not ready and was not filed. Indeed, counsel for the appellants was not even present when the special civil applications reached hearing and the hearing commenced. In these circumstances the High Court cannot be blamed when it rejected a fresh attempt to have the matters adjourned to enable the appellants to file an affidavit. The High Court also cannot be blamed for refusing to accept the affidavit on July 13th, 1965, on the ground of inordinate delay. If, on that ground the High Court refused in its discretion to permit the affidavit to be filed, it is impossible to say that that discretion was exercised wrongly or in breach of any principle or practice. It was, no doubt, a pity that in such a case the High Court had to proceed with the special civil applications without the aid of a reply to them. But for that the appellants had clearly to blame themselves. The ground taken by the appellants that they did not file the reply on the assumption that the special civil applications would not be proceeded with after the cancellation of the said notification has no merit, firstly, because the appellants were told, as the High Court has pointed out in its judgment, that the cancellation of the notification did not end the matter, and secondly, because the appellants were not willing after that cancellation to hand over the said survey numbers to respondent 1. There was, therefore, no ground for the appellants to assume that the special civil applications would not be proceeded with. In these circumstances it is impossible to find any fault with the High Court for refusing to allow thet to go on record at that belated stage. Apart from the question as to delay, that would have also meant a further adjournment to enable respondent 1 to prepare and file his rejoinder12. There being thus no reply to the two special civil applications, the High Court had to accept the statements made on affidavit by respondent 1 therein as prima facie evidence of his right to possession of the lands in question.Mr. Desai frankly told us that that was the inevitable result flowing from the absence of anyt denying the assertions made on affidavit by respondent 1. The consequence of the absence of any reply affidavit was that Mr. Desai could not urge any specific ground upon which the judgment of the High Court could be challenged by him. | 0 | 2,212 | 625 | ### Instruction:
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was pointed out on behalf of respondent 1 that the said applications did not end with the cancellation of the said notification since the question of possession of the said survey numbers still remained for decision. 10. On the reopening of the Court, the said applications appeared on board for hearing and continued to so appear until June 29, 1965. The appellants had, however, not filed any affidavit until then, although on several occasions they had obtained adjournments for filing it. When the two applications reached hearing on June 29, 1965, counsel for the Government was also absent. Consequently, the High Court proceeded with the said applications ex parte and even delivered its judgment. At the end of the day, counsel for the Government appeared and requested that he should be heard. That request was granted and counsel was heard. His arguments continued the next day. Even at that stage affidavit of the appellants was not ready. Counsel, therefore, asked for another adjournment, but the request was rejected. The arguments on behalf of the appellants were not over on that day. Since the Division Bench hearing those arguments was busy with other matters, the said arguments could not be resumed until July 13, 1965. On July 13, 1965, the appellants sought to tender their reply affidavit. That request was turned down and the Court had finally to decide the special civil applications without there being any reply to them on behalf of the appellants. On that day the learned Advocate-General appeared before the Court and sought to raise certain technical points. These were rejected as being without any merit. He also applied that respondent 1 should be made to appear before the Court as a witness to enable the appellants to cross-examine him. No such notice having been previously given to respondent 1, he was not expected to and was in fact not present in Court. The High Court rejected that application also on the ground of inordinate delay and also on the ground that the appellants had ample opportunity to traverse the statements made on affidavit by respondent 1 in his said special civil applications. Those statements, were according to the High Court evidence on affidavit and in the absence of their having been traversed, constituted a prima facie case of his right to possession of the said survey numbers. The High Court ultimately allowed the said special civil applications and directed the appellants to hand over to respondent 1 possession of the said survey numbers. 11. Mr. V. S. Desai, appearing for the appellants argued that the High Court erred in rejecting the appellants application for filing their counter-affidavit and thus enable them to challenge the correctness of the statements made by respondent 1 in his two special civil applications. He also argued that the appellants were not to be blamed for not having filed their counter-affidavit in time since they were under the impression that the special civil applications would not be proceeded with after the Government had cancelled the said notification. That notification, however, was cancelled on June 29th, 1965. Before that date the appellants had obtained adjournments and had got the special civil applications put off for hearing beyond the summer vacation only on the ground that they should have time to prepare and file their affidavit. Though the appellants had thus obtained time, they did not file their affidavit even on the reopening of the High Court. Even when the special civil applications ultimately reached hearing on June 29, 1965, the counter-affidavit was not ready and was not filed. Indeed, counsel for the appellants was not even present when the special civil applications reached hearing and the hearing commenced. In these circumstances the High Court cannot be blamed when it rejected a fresh attempt to have the matters adjourned to enable the appellants to file an affidavit. The High Court also cannot be blamed for refusing to accept the affidavit on July 13th, 1965, on the ground of inordinate delay. If, on that ground the High Court refused in its discretion to permit the affidavit to be filed, it is impossible to say that that discretion was exercised wrongly or in breach of any principle or practice. It was, no doubt, a pity that in such a case the High Court had to proceed with the special civil applications without the aid of a reply to them. But for that the appellants had clearly to blame themselves. The ground taken by the appellants that they did not file the reply on the assumption that the special civil applications would not be proceeded with after the cancellation of the said notification has no merit, firstly, because the appellants were told, as the High Court has pointed out in its judgment, that the cancellation of the notification did not end the matter, and secondly, because the appellants were not willing after that cancellation to hand over the said survey numbers to respondent 1. There was, therefore, no ground for the appellants to assume that the special civil applications would not be proceeded with. In these circumstances it is impossible to find any fault with the High Court for refusing to allow the counter-affidavit to go on record at that belated stage. Apart from the question as to delay, that would have also meant a further adjournment to enable respondent 1 to prepare and file his rejoinder. 12. There being thus no reply to the two special civil applications, the High Court had to accept the statements made on affidavit by respondent 1 therein as prima facie evidence of his right to possession of the lands in question. Mr. Desai frankly told us that that was the inevitable result flowing from the absence of any counter-affidavit denying the assertions made on affidavit by respondent 1. The consequence of the absence of any reply affidavit was that Mr. Desai could not urge any specific ground upon which the judgment of the High Court could be challenged by him.
### Response:
0
### Explanation:
11. Mr. V. S. Desai, appearing for the appellants argued that the High Court erred in rejecting the appellants application for filing theirt and thus enable them to challenge the correctness of the statements made by respondent 1 in his two special civil applications. He also argued that the appellants were not to be blamed for not having filed theirt in time since they were under the impression that the special civil applications would not be proceeded with after the Government had cancelled the said. That notification, however, was cancelled on June 29th, 1965. Before that date the appellants had obtained adjournments and had got the special civil applications put off for hearing beyond the summer vacation only on the ground that they should have time to prepare and file their affidavit. Though the appellants had thus obtained time, they did not file their affidavit even on the reopening of the High Court. Even when the special civil applications ultimately reached hearing on June 29, 1965, thet was not ready and was not filed. Indeed, counsel for the appellants was not even present when the special civil applications reached hearing and the hearing commenced. In these circumstances the High Court cannot be blamed when it rejected a fresh attempt to have the matters adjourned to enable the appellants to file an affidavit. The High Court also cannot be blamed for refusing to accept the affidavit on July 13th, 1965, on the ground of inordinate delay. If, on that ground the High Court refused in its discretion to permit the affidavit to be filed, it is impossible to say that that discretion was exercised wrongly or in breach of any principle or practice. It was, no doubt, a pity that in such a case the High Court had to proceed with the special civil applications without the aid of a reply to them. But for that the appellants had clearly to blame themselves. The ground taken by the appellants that they did not file the reply on the assumption that the special civil applications would not be proceeded with after the cancellation of the said notification has no merit, firstly, because the appellants were told, as the High Court has pointed out in its judgment, that the cancellation of the notification did not end the matter, and secondly, because the appellants were not willing after that cancellation to hand over the said survey numbers to respondent 1. There was, therefore, no ground for the appellants to assume that the special civil applications would not be proceeded with. In these circumstances it is impossible to find any fault with the High Court for refusing to allow thet to go on record at that belated stage. Apart from the question as to delay, that would have also meant a further adjournment to enable respondent 1 to prepare and file his rejoinder12. There being thus no reply to the two special civil applications, the High Court had to accept the statements made on affidavit by respondent 1 therein as prima facie evidence of his right to possession of the lands in question.Mr. Desai frankly told us that that was the inevitable result flowing from the absence of anyt denying the assertions made on affidavit by respondent 1. The consequence of the absence of any reply affidavit was that Mr. Desai could not urge any specific ground upon which the judgment of the High Court could be challenged by him.
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Daruka & Co Vs. Union Of India & Ors | behalf and compliance with other terms laid down in that policy and in particular opening irrevocable letter of credit by a foreign buyer in a Bank in India for 100% of the invoice value of the goods. Shipment of fabricated mica under that policy continued to remain free from the above stipulation regarding opening of l00% irrevocable letter of credit. Fabricated mica in that policy is said to include micanite, built up mica, mica tapes, mica cloth, mica silk, mica paper, mica folium and all varieties of mica cut or purched to specific shapes and sizes, and mica powder. It is said on behalf of the petitioner that as a result of the exclusion of mica powder from the scope of the canalisation scheme, there are possibilities of mica waste and mica scrap being converted into mica powder and exported by individual exporters and there may he a loss in foreign exchange. The affidavit evidence on behalf of the State is that the exclusion of mica powder from the canalisation scheme is to develop mica powder industry in our country, because this industry is developing and is practically nascent in growth. Therefore, there is intelligible differentia between mica powder on the one hand and mica scrap and waste or, the other in excluding mica powder from the canalisation scheme. 28. The State issued another Trade Notice on 20 April 1972. This April 1972 Notice is also impeached. Under the April Notice which can be described as the second impugned Notice it is stated that the canalisation scheme provided in the unpugned Notice of 29 January, 1972 is modified to the extent that shipments will be allowed up to 30 June, 1972 against subsisting contracts for all grades and varieties of mica which had been executed prior to 24 January, 1972 and in respect of which letters of credit have not been opened prior to 24 January, 1972. The petitioners contend that the relaxation of the date for opening letters of credit from 24 January, 1972 to 31 March. 1972 was intended to benefit influential people. It was said that such influential people went on opening letters of credit up to 31 March, l972, because of their previous knowledge that there was going to be a relaxation in the date. The contention of the petitioners was that this relaxation was mala fide to help influential people. The affidavit evidence an behalf of the State is that this relaxation was made because several exporters made representations that they did not understand the import of restrictions and went on opening letters of credit. On behalf of the State it was said that the relaxation was to minimise the hardships which the traders were likely to suffer on account of the coming into force of the impugned Trade Notice. 29. The three representations received by the Ministry are from the Bihar Mica Exporters Association dated 25 January, 1972, the Mica Chamber of Commerce, Gudur, Andhra Pradesh dated 9 February. 1972 and the Bihar Mica Exporters Association dated 16 March 1972. Broadly stated, the representations of the traders were that the absence of any detailed information or direction as to the procedure to be followed under the new system presented three difficulties to the traders. First, there was serious set back in usual Dow of mica exports. Second, there was financial loss to the mica exporters. Third, there was financial crisis in the mica industry. 30. The difficulties pointed out were that export consignments worth about Rs. 70 lakhs in the names of different exporters supported by valid contracts and letters of credit were under processing through Joint Chief Controller of Imports and Exports and Customs at Calcutta port for shipment within 31 January, 1972. The Orders and Credit were not assignable and were covered under Buyers Import Licence which stipulated specific dates for shipment and consequently the letters of credit could not be extended or amended if so desired under the new system. Under similar conditions export consignments worth about Rs. 130 lakhs were lying ready for shipment In the month of February, 1972. Goods worth about Rs. 150 lakhs were under manufacturing process against orders and letters of credit for shipment in March 1972. Goods worth about; Rs. 150 lakhs were awaiting processing line against shipment commitment for the months of April to June, 1972. There were other export contracts for shipment after the month of June. 1072. Some consignments of mica scrap; cuttings, powder, flakes and mica splittings were despatched by Rail Wagon from Giridih/Kodarma to Calcutta Port for shipment by specific steamer. If for the reason of the changed pattern of export steamers were not availed or shipment was delayed the traders would suffer loss for non-shipment of the goods and incur railway demurrage and Port Commissioners demurrage and storage charges. The Association therefore asked for relief in the matter of export in accordance with the contractual terms of existing contracts. 31. The Andhra Pradesh Chamber of Commerce added that there were contracts prior to 24 January. 1972 stating shipment date subsequent to 24 January, 1972 for which letters of credit were to be established in due course. Certain contracts were executed in part and for the remaining part letters of credit were to be established in due course prior to the stipulated time of shipment. There were contracts prior to 24 January. 1972 for which letters of credit originally established had expired. Therefore, the Andhra Chamber of Commerce asked for extension of last date for registration of contracts up to 29 February, 1972. 32. In this background it cannot be said that the Government authorities acted mala fide in extending the date of the opening of the letter of credit from 24 January, 1972 to 31 March, 1972. The relaxation was to minimise hardships to the traders. The relaxation was to prevent dislocation of trade on a large scale. The Association gave instances of traders who could not succeed in opening letters of credit for reasons beyond their control. 33. | 0[ds]16. Policies of imports or exports are fashioned not only with reference to internal or international trade but also on monetary policy, the development of agriculture and industries and even on the political policies of the country but rival theories and views may be held on such policies.If the Government decides an economic policy that import or export should be by a selected channel or through selected agencies the court would proceed on the assumption that the decision is in the interest of the general public unless the contrary is shownthe dominant purpose of the scheme is canalisation of export and not to acquire the business or goodwill of traders in favour of the Corporation. The restriction on traders is reasonable. There is no acquisition of property of traders. The Corporation is an agency through which export is canalised to the total exclusion of citizens20. The contention that the Impugned Notice showed preference for the Corporation in infringement of Article 14 is unsound. The Corporation is a State owned body. The Corporation is appointed to undertake this export scheme. No preference is shown to the Corporation, where canalisation is decided no licence is granted in favour of any one. Therefore, there is neither any competition nor any choice in the matter of grant of licence. It is a total exclusion of citizens in order to enable all the countrys exports to be made by one licenceeTherefore the State gave concession to the traders in order to eliminate hardship. The traders were given the choice to export provided they fulfilled certain conditions. These were that they could export through the Corporation and they were to pay service charges. It is significant that if the Press Note had not laid down the procedure conferring the privilege of exporting goods even after 24 January. 1972 in performance of contracts which were not supported by irrevocable letters of credit being opened prior to 24 January, l972 the traders would have suffered loss. The traders could not perform the contracts with the foreign buyers after 24 January, 1972 where letters of credit had not been opened. Therefore, it is apparent that there was no transfer of business of goodwill m favour of the Corporation23. The service charge collected by the Corporation is not in the nature of a tax. The provisions of Article 265 are not therefore attracted. Counsel for the petitioner contended that the levy of service charges was not authorised by the 1947 Act which permitted only levy of fee in respect of applications for issue or renewal of licence. The Corporation is a licencee under the 1947 Act and the 1968 Order. The Corporation acts in accordance with the terms and conditions of the licence. It was said on behalf of the petitioner that Section 4 (a) of the 1947 Act and clause 4 of the 1968 Order excluded levy of any other fees under the Act. The Government and the licensing authority under the Act are not collecting any fee or charges from the traders. It is the Corporation which is collecting service charges from the traders who avail the services of the Corporation. The Corporation is in the nature of commercial undertaking to which a licence has been granted for the export of certain commodities. The service charges are nothing but quid pro quo for the services rendered by the Corporation25. In the present case, the affidavit evidence is that the obligation to export goods arises when the foreign buyers open letters of credit for the specified quantity of goods. If no date is fixed for bringing into effect the canalisation scheme with reference to opening of letter of credit it will give rise to ingenious devices of creating specious contracts. Contracts may be brought into existence by antedating such contracts. The entire purpose of the canalisation scheme with a view to increasing the export trade of the country assisting small mine-owners, exporters and processors, checking smuggling in foreign exchange under-invoicing illegal acquisition of foreign currency and eliminating the chances of contravention of various provisions of the Foreign Exchange Regulations Act and Exports (Control) Order will be stultified. The utility of a State agency in the smooth running of export trade in such commodity as mica blocks, condenser-films, splittings, scrap or waste forms a very significant part of exports of our country. Therefore, the opening of letters of credit has rational relationship with the object of the canalisation scheme and there is no violation of Article 14If an absolute prohibition of export supervenes upon a contract which is subject to the licence the duty cannot be absolute. Nothing has been show that contracts in the present case were not subject to the usual terms of Contract in such cases that the export was subject to the licence laws of our country for the export of goodsThe affidavit evidence on behalf of the State is that the exclusion of mica powder from the canalisation scheme is to develop mica powder industry in our country, because this industry is developing and is practically nascent in growth. Therefore, there is intelligible differentia between mica powder on the one hand and mica scrap and waste or, the other in excluding mica powder from the canalisation scheme29. The three representations received by the Ministry are from the Bihar Mica Exporters Association dated 25 January, 1972, the Mica Chamber of Commerce, Gudur, Andhra Pradesh dated 9 February. 1972 and the Bihar Mica Exporters Association dated 16 March 1972. Broadly stated, the representations of the traders were that the absence of any detailed information or direction as to the procedure to be followed under the new system presented three difficulties to the traders. First, there was serious set back in usual Dow of mica exports. Second, there was financial loss to the mica exporters. Third, there was financial crisis in the mica industry.The difficulties pointed out were that export consignments worth about Rs. 70 lakhs in the names of different exporters supported by valid contracts and letters of credit were under processing through Joint Chief Controller of Imports and Exports and Customs at Calcutta port for shipment within 31 January, 1972. The Orders and Credit were not assignable and were covered under Buyers Import Licence which stipulated specific dates for shipment and consequently the letters of credit could not be extended or amended if so desired under the new system. Under similar conditions export consignments worth about Rs. 130 lakhs were lying ready for shipment In the month of February, 1972. Goods worth about Rs. 150 lakhs were under manufacturing process against orders and letters of credit for shipment in March 1972. Goods worth about; Rs. 150 lakhs were awaiting processing line against shipment commitment for the months of April to June, 1972. There were other export contracts for shipment after the month of June. 1072. Some consignments of mica scrap; cuttings, powder, flakes and mica splittings were despatched by Rail Wagon from Giridih/Kodarma to Calcutta Port for shipment by specific steamer. If for the reason of the changed pattern of export steamers were not availed or shipment was delayed the traders would suffer loss for non-shipment of the goods and incur railway demurrage and Port Commissioners demurrage and storage charges. The Association therefore asked for relief in the matter of export in accordance with the contractual terms of existing contractsThe Andhra Pradesh Chamber of Commerce added that there were contracts prior to 24 January. 1972 stating shipment date subsequent to 24 January, 1972 for which letters of credit were to be established in due course. Certain contracts were executed in part and for the remaining part letters of credit were to be established in due course prior to the stipulated time of shipment. There were contracts prior to 24 January. 1972 for which letters of credit originally established had expired. Therefore, the Andhra Chamber of Commerce asked for extension of last date for registration of contracts up to 29 February, 1972In this background it cannot be said that the Government authorities acted mala fide in extending the date of the opening of the letter of credit from 24 January, 1972 to 31 March, 1972. The relaxation was to minimise hardships to the traders. The relaxation was to prevent dislocation of trade on a large scale. The Association gave instances of traders who could not succeed in opening letters of credit for reasons beyond their control. | 0 | 5,421 | 1,507 | ### 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:
behalf and compliance with other terms laid down in that policy and in particular opening irrevocable letter of credit by a foreign buyer in a Bank in India for 100% of the invoice value of the goods. Shipment of fabricated mica under that policy continued to remain free from the above stipulation regarding opening of l00% irrevocable letter of credit. Fabricated mica in that policy is said to include micanite, built up mica, mica tapes, mica cloth, mica silk, mica paper, mica folium and all varieties of mica cut or purched to specific shapes and sizes, and mica powder. It is said on behalf of the petitioner that as a result of the exclusion of mica powder from the scope of the canalisation scheme, there are possibilities of mica waste and mica scrap being converted into mica powder and exported by individual exporters and there may he a loss in foreign exchange. The affidavit evidence on behalf of the State is that the exclusion of mica powder from the canalisation scheme is to develop mica powder industry in our country, because this industry is developing and is practically nascent in growth. Therefore, there is intelligible differentia between mica powder on the one hand and mica scrap and waste or, the other in excluding mica powder from the canalisation scheme. 28. The State issued another Trade Notice on 20 April 1972. This April 1972 Notice is also impeached. Under the April Notice which can be described as the second impugned Notice it is stated that the canalisation scheme provided in the unpugned Notice of 29 January, 1972 is modified to the extent that shipments will be allowed up to 30 June, 1972 against subsisting contracts for all grades and varieties of mica which had been executed prior to 24 January, 1972 and in respect of which letters of credit have not been opened prior to 24 January, 1972. The petitioners contend that the relaxation of the date for opening letters of credit from 24 January, 1972 to 31 March. 1972 was intended to benefit influential people. It was said that such influential people went on opening letters of credit up to 31 March, l972, because of their previous knowledge that there was going to be a relaxation in the date. The contention of the petitioners was that this relaxation was mala fide to help influential people. The affidavit evidence an behalf of the State is that this relaxation was made because several exporters made representations that they did not understand the import of restrictions and went on opening letters of credit. On behalf of the State it was said that the relaxation was to minimise the hardships which the traders were likely to suffer on account of the coming into force of the impugned Trade Notice. 29. The three representations received by the Ministry are from the Bihar Mica Exporters Association dated 25 January, 1972, the Mica Chamber of Commerce, Gudur, Andhra Pradesh dated 9 February. 1972 and the Bihar Mica Exporters Association dated 16 March 1972. Broadly stated, the representations of the traders were that the absence of any detailed information or direction as to the procedure to be followed under the new system presented three difficulties to the traders. First, there was serious set back in usual Dow of mica exports. Second, there was financial loss to the mica exporters. Third, there was financial crisis in the mica industry. 30. The difficulties pointed out were that export consignments worth about Rs. 70 lakhs in the names of different exporters supported by valid contracts and letters of credit were under processing through Joint Chief Controller of Imports and Exports and Customs at Calcutta port for shipment within 31 January, 1972. The Orders and Credit were not assignable and were covered under Buyers Import Licence which stipulated specific dates for shipment and consequently the letters of credit could not be extended or amended if so desired under the new system. Under similar conditions export consignments worth about Rs. 130 lakhs were lying ready for shipment In the month of February, 1972. Goods worth about Rs. 150 lakhs were under manufacturing process against orders and letters of credit for shipment in March 1972. Goods worth about; Rs. 150 lakhs were awaiting processing line against shipment commitment for the months of April to June, 1972. There were other export contracts for shipment after the month of June. 1072. Some consignments of mica scrap; cuttings, powder, flakes and mica splittings were despatched by Rail Wagon from Giridih/Kodarma to Calcutta Port for shipment by specific steamer. If for the reason of the changed pattern of export steamers were not availed or shipment was delayed the traders would suffer loss for non-shipment of the goods and incur railway demurrage and Port Commissioners demurrage and storage charges. The Association therefore asked for relief in the matter of export in accordance with the contractual terms of existing contracts. 31. The Andhra Pradesh Chamber of Commerce added that there were contracts prior to 24 January. 1972 stating shipment date subsequent to 24 January, 1972 for which letters of credit were to be established in due course. Certain contracts were executed in part and for the remaining part letters of credit were to be established in due course prior to the stipulated time of shipment. There were contracts prior to 24 January. 1972 for which letters of credit originally established had expired. Therefore, the Andhra Chamber of Commerce asked for extension of last date for registration of contracts up to 29 February, 1972. 32. In this background it cannot be said that the Government authorities acted mala fide in extending the date of the opening of the letter of credit from 24 January, 1972 to 31 March, 1972. The relaxation was to minimise hardships to the traders. The relaxation was to prevent dislocation of trade on a large scale. The Association gave instances of traders who could not succeed in opening letters of credit for reasons beyond their control. 33.
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the levy of service charges was not authorised by the 1947 Act which permitted only levy of fee in respect of applications for issue or renewal of licence. The Corporation is a licencee under the 1947 Act and the 1968 Order. The Corporation acts in accordance with the terms and conditions of the licence. It was said on behalf of the petitioner that Section 4 (a) of the 1947 Act and clause 4 of the 1968 Order excluded levy of any other fees under the Act. The Government and the licensing authority under the Act are not collecting any fee or charges from the traders. It is the Corporation which is collecting service charges from the traders who avail the services of the Corporation. The Corporation is in the nature of commercial undertaking to which a licence has been granted for the export of certain commodities. The service charges are nothing but quid pro quo for the services rendered by the Corporation25. In the present case, the affidavit evidence is that the obligation to export goods arises when the foreign buyers open letters of credit for the specified quantity of goods. If no date is fixed for bringing into effect the canalisation scheme with reference to opening of letter of credit it will give rise to ingenious devices of creating specious contracts. Contracts may be brought into existence by antedating such contracts. The entire purpose of the canalisation scheme with a view to increasing the export trade of the country assisting small mine-owners, exporters and processors, checking smuggling in foreign exchange under-invoicing illegal acquisition of foreign currency and eliminating the chances of contravention of various provisions of the Foreign Exchange Regulations Act and Exports (Control) Order will be stultified. The utility of a State agency in the smooth running of export trade in such commodity as mica blocks, condenser-films, splittings, scrap or waste forms a very significant part of exports of our country. Therefore, the opening of letters of credit has rational relationship with the object of the canalisation scheme and there is no violation of Article 14If an absolute prohibition of export supervenes upon a contract which is subject to the licence the duty cannot be absolute. Nothing has been show that contracts in the present case were not subject to the usual terms of Contract in such cases that the export was subject to the licence laws of our country for the export of goodsThe affidavit evidence on behalf of the State is that the exclusion of mica powder from the canalisation scheme is to develop mica powder industry in our country, because this industry is developing and is practically nascent in growth. Therefore, there is intelligible differentia between mica powder on the one hand and mica scrap and waste or, the other in excluding mica powder from the canalisation scheme29. The three representations received by the Ministry are from the Bihar Mica Exporters Association dated 25 January, 1972, the Mica Chamber of Commerce, Gudur, Andhra Pradesh dated 9 February. 1972 and the Bihar Mica Exporters Association dated 16 March 1972. Broadly stated, the representations of the traders were that the absence of any detailed information or direction as to the procedure to be followed under the new system presented three difficulties to the traders. First, there was serious set back in usual Dow of mica exports. Second, there was financial loss to the mica exporters. Third, there was financial crisis in the mica industry.The difficulties pointed out were that export consignments worth about Rs. 70 lakhs in the names of different exporters supported by valid contracts and letters of credit were under processing through Joint Chief Controller of Imports and Exports and Customs at Calcutta port for shipment within 31 January, 1972. The Orders and Credit were not assignable and were covered under Buyers Import Licence which stipulated specific dates for shipment and consequently the letters of credit could not be extended or amended if so desired under the new system. Under similar conditions export consignments worth about Rs. 130 lakhs were lying ready for shipment In the month of February, 1972. Goods worth about Rs. 150 lakhs were under manufacturing process against orders and letters of credit for shipment in March 1972. Goods worth about; Rs. 150 lakhs were awaiting processing line against shipment commitment for the months of April to June, 1972. There were other export contracts for shipment after the month of June. 1072. Some consignments of mica scrap; cuttings, powder, flakes and mica splittings were despatched by Rail Wagon from Giridih/Kodarma to Calcutta Port for shipment by specific steamer. If for the reason of the changed pattern of export steamers were not availed or shipment was delayed the traders would suffer loss for non-shipment of the goods and incur railway demurrage and Port Commissioners demurrage and storage charges. The Association therefore asked for relief in the matter of export in accordance with the contractual terms of existing contractsThe Andhra Pradesh Chamber of Commerce added that there were contracts prior to 24 January. 1972 stating shipment date subsequent to 24 January, 1972 for which letters of credit were to be established in due course. Certain contracts were executed in part and for the remaining part letters of credit were to be established in due course prior to the stipulated time of shipment. There were contracts prior to 24 January. 1972 for which letters of credit originally established had expired. Therefore, the Andhra Chamber of Commerce asked for extension of last date for registration of contracts up to 29 February, 1972In this background it cannot be said that the Government authorities acted mala fide in extending the date of the opening of the letter of credit from 24 January, 1972 to 31 March, 1972. The relaxation was to minimise hardships to the traders. The relaxation was to prevent dislocation of trade on a large scale. The Association gave instances of traders who could not succeed in opening letters of credit for reasons beyond their control.
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State of Punjab Vs. Satpal & Another | 20 or more workmen. This ground was not accepted by the High Court. Hence these appeals.5. The Employees Provident Funds Act, 1952 was passed to provide for institution of provident funds for employees in factories and other establishments. It provided for the establishment of a fund in the hands of a Board of Trustees and establishments liable to make contributions of provident fund had to recover the contributions of the workmen, add to them their own contribution plus an administrative charge of 3% and hand over the amount periodically to the Central Provident Funds Commissioner appointed for this purpose. Para 76 of the scheme which was framed under the Act provided for punishment for failure to pay contributions and to furnish returns etc. It is stated in that para that if any person fails to pay any contribution which he is liable to pay under the scheme, deducts or attempts to deduct from the wages or other remuneration of a member the whole or any part of the employers contribution, or fails or refuses to submit any return etc., or obstructs any inspector or other official appointed under the Act or the scheme in the discharge of his duties or fails to produce any record for inspection by such Inspector or other official, or is guilty of contravention of or non-compliance with any other requirement of the scheme, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to one thousand rupees, or with both. The Act, however, gives breathing time to new establishments by providing in Section 16 that the Act is not applicable to them for some specified periods. We are concerned in these appeals with the exemptions granted to infant establishments under S. 16 (1) (b) which reads as follows:"16. Act not to apply to establishments belonging to Government or local authority and also to infant establishments -(1) This Act shall not apply -(a) ** ** **(b) to any other establishment employing fifty or more persons or twenty or more, but less than fifty, persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date on which the establishment is, or has been, set up.Explanation: for the removal of doubts, it is hereby declared that an establishment shall not be deemed to be newly set up merely by reason of a change in its location."6. The contention of the respondents is that the business which they were running in 1964-65 was an entirely different business and was not the same business which Tirath Ram had started. They referred in particular to the kind of articles that Tirath Ram was manufacturing and submit that the manufacturers had been changed when action was taken under the Employees Provident Funds Act. In other words, they draw attention to the difference between the manufacture of Tawas and Knives on the one hand and nails for bullock shoes on the other. We do not think that this makes any difference. In fact, the business had already changed in the hands of the partnership long before the establishment changed its premises. The business of the partnership was running an iron-smithy for the manufacture of iron articles and the factory continued even though the manufacturing process changed from one articles to another. We must, therefore, hold that the same factory continued in spite of the change from Tawas to iron nails in the manufacturing process.7. The next submission on behalf of the respondents is that the partnership changed and therefore a new business came into existence. Here again, we are not concerned with the law of partnership but with the Employees Provident Funds Act.The law takes into account only the existence of establishments and the employment of a certain number of persons in factories over a given period. It is for this purpose that change of location or change of composition of partners or even a change in the manufacturing process is not considered vital in the application of this law.This was laid down by this Court in very explicit terms in Civil Appeals Nos. 572 and 573 of 1964, D/- 6-10-1965 (SC) (Lakshmi Rattan Engineering Works v. Regional Provident Fund Commissioner Punjab).8. The most important question which arises for consideration in this case is whether the period of infancy is to be calculated from 9-11-1957 when the establishment was first begun or from 13-11-1962 when the employment of 20 or more workmen first commenced. This point is also covered in the case we have cited above. A further ruling on the subject exists in R. Ramakrishna Rao v. State of Kerala, (1968) 2 SCR 819 = (AIR 1968 SC 1367 ). In that case also employment of 20 or more persons began later than the commencement of the establishment.Explaining the sub-section, this Court states that the word is in the sub-section clearly indicates a newly started business, and the words has been a business which has been in existence before. It is, therefore, held that the period of infancy must be calculated from the first establishment of the factory and not from the moment of time when the figure of 20 or more is first reached.9. Applying these rulings, it is quite clear that in this case, the factory must be taken to have started in the year 1957 and that is the point of time when the establishment first came into existence. On 13th November, 1962, it had already a life of 5 years, and on that date when 20 workmen came to be employed, the scheme under the Employees Provident Funds Act began to apply. The learned Magistrate was therefore wrong in calculating the period of infancy from the first employment of 20 workmen. He had to calculate that period from the first day on which the establishment came into existence. The acquittal of the respondent Satpal in the three appeals was therefore erroneous and must be set aside. | 1[ds]We do not think that this makes any difference. In fact, the business had already changed in the hands of the partnership long before the establishment changed its premises. The business of the partnership was running anfor the manufacture of iron articles and the factory continued even though the manufacturing process changed from one articles to another. We must, therefore, hold that the same factory continued in spite of the change from Tawas to iron nails in the manufacturingHere again, we are not concerned with the law of partnership but with the Employees Provident Funds Act.The law takes into account only the existence of establishments and the employment of a certain number of persons in factories over a given period. It is for this purpose that change of location or change of composition of partners or even a change in the manufacturing process is not considered vital in the application of this law.This was laid down by this Court in very explicit terms in Civil Appeals Nos. 572 and 573 of 1964, D/(SC) (Lakshmi Rattan Engineering Works v. Regional Provident Fund Commissioner Punjab).This point is also covered in the case we have cited above. A further ruling on the subject exists in R. Ramakrishna Rao v. State of Kerala, (1968) 2 SCR 819 = (AIR 1968 SC 1367 ). In that case also employment of 20 or more persons began later than the commencement of the establishment.Explaining thethis Court states that the word is in theclearly indicates a newly started business, and the words has been a business which has been in existence before. It is, therefore, held that the period of infancy must be calculated from the first establishment of the factory and not from the moment of time when the figure of 20 or more is first reached.9. Applying these rulings, it is quite clear that in this case, the factory must be taken to have started in the year 1957 and that is the point of time when the establishment first came into existence. On 13th November, 1962, it had already a life of 5 years, and on that date when 20 workmen came to be employed, the scheme under the Employees Provident Funds Act began to apply. The learned Magistrate was therefore wrong in calculating the period of infancy from the first employment of 20 workmen. He had to calculate that period from the first day on which the establishment came into existence. The acquittal of the respondent Satpal in the three appeals was therefore erroneous and must be set aside. | 1 | 1,748 | 467 | ### 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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20 or more workmen. This ground was not accepted by the High Court. Hence these appeals.5. The Employees Provident Funds Act, 1952 was passed to provide for institution of provident funds for employees in factories and other establishments. It provided for the establishment of a fund in the hands of a Board of Trustees and establishments liable to make contributions of provident fund had to recover the contributions of the workmen, add to them their own contribution plus an administrative charge of 3% and hand over the amount periodically to the Central Provident Funds Commissioner appointed for this purpose. Para 76 of the scheme which was framed under the Act provided for punishment for failure to pay contributions and to furnish returns etc. It is stated in that para that if any person fails to pay any contribution which he is liable to pay under the scheme, deducts or attempts to deduct from the wages or other remuneration of a member the whole or any part of the employers contribution, or fails or refuses to submit any return etc., or obstructs any inspector or other official appointed under the Act or the scheme in the discharge of his duties or fails to produce any record for inspection by such Inspector or other official, or is guilty of contravention of or non-compliance with any other requirement of the scheme, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to one thousand rupees, or with both. The Act, however, gives breathing time to new establishments by providing in Section 16 that the Act is not applicable to them for some specified periods. We are concerned in these appeals with the exemptions granted to infant establishments under S. 16 (1) (b) which reads as follows:"16. Act not to apply to establishments belonging to Government or local authority and also to infant establishments -(1) This Act shall not apply -(a) ** ** **(b) to any other establishment employing fifty or more persons or twenty or more, but less than fifty, persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date on which the establishment is, or has been, set up.Explanation: for the removal of doubts, it is hereby declared that an establishment shall not be deemed to be newly set up merely by reason of a change in its location."6. The contention of the respondents is that the business which they were running in 1964-65 was an entirely different business and was not the same business which Tirath Ram had started. They referred in particular to the kind of articles that Tirath Ram was manufacturing and submit that the manufacturers had been changed when action was taken under the Employees Provident Funds Act. In other words, they draw attention to the difference between the manufacture of Tawas and Knives on the one hand and nails for bullock shoes on the other. We do not think that this makes any difference. In fact, the business had already changed in the hands of the partnership long before the establishment changed its premises. The business of the partnership was running an iron-smithy for the manufacture of iron articles and the factory continued even though the manufacturing process changed from one articles to another. We must, therefore, hold that the same factory continued in spite of the change from Tawas to iron nails in the manufacturing process.7. The next submission on behalf of the respondents is that the partnership changed and therefore a new business came into existence. Here again, we are not concerned with the law of partnership but with the Employees Provident Funds Act.The law takes into account only the existence of establishments and the employment of a certain number of persons in factories over a given period. It is for this purpose that change of location or change of composition of partners or even a change in the manufacturing process is not considered vital in the application of this law.This was laid down by this Court in very explicit terms in Civil Appeals Nos. 572 and 573 of 1964, D/- 6-10-1965 (SC) (Lakshmi Rattan Engineering Works v. Regional Provident Fund Commissioner Punjab).8. The most important question which arises for consideration in this case is whether the period of infancy is to be calculated from 9-11-1957 when the establishment was first begun or from 13-11-1962 when the employment of 20 or more workmen first commenced. This point is also covered in the case we have cited above. A further ruling on the subject exists in R. Ramakrishna Rao v. State of Kerala, (1968) 2 SCR 819 = (AIR 1968 SC 1367 ). In that case also employment of 20 or more persons began later than the commencement of the establishment.Explaining the sub-section, this Court states that the word is in the sub-section clearly indicates a newly started business, and the words has been a business which has been in existence before. It is, therefore, held that the period of infancy must be calculated from the first establishment of the factory and not from the moment of time when the figure of 20 or more is first reached.9. Applying these rulings, it is quite clear that in this case, the factory must be taken to have started in the year 1957 and that is the point of time when the establishment first came into existence. On 13th November, 1962, it had already a life of 5 years, and on that date when 20 workmen came to be employed, the scheme under the Employees Provident Funds Act began to apply. The learned Magistrate was therefore wrong in calculating the period of infancy from the first employment of 20 workmen. He had to calculate that period from the first day on which the establishment came into existence. The acquittal of the respondent Satpal in the three appeals was therefore erroneous and must be set aside.
### Response:
1
### Explanation:
We do not think that this makes any difference. In fact, the business had already changed in the hands of the partnership long before the establishment changed its premises. The business of the partnership was running anfor the manufacture of iron articles and the factory continued even though the manufacturing process changed from one articles to another. We must, therefore, hold that the same factory continued in spite of the change from Tawas to iron nails in the manufacturingHere again, we are not concerned with the law of partnership but with the Employees Provident Funds Act.The law takes into account only the existence of establishments and the employment of a certain number of persons in factories over a given period. It is for this purpose that change of location or change of composition of partners or even a change in the manufacturing process is not considered vital in the application of this law.This was laid down by this Court in very explicit terms in Civil Appeals Nos. 572 and 573 of 1964, D/(SC) (Lakshmi Rattan Engineering Works v. Regional Provident Fund Commissioner Punjab).This point is also covered in the case we have cited above. A further ruling on the subject exists in R. Ramakrishna Rao v. State of Kerala, (1968) 2 SCR 819 = (AIR 1968 SC 1367 ). In that case also employment of 20 or more persons began later than the commencement of the establishment.Explaining thethis Court states that the word is in theclearly indicates a newly started business, and the words has been a business which has been in existence before. It is, therefore, held that the period of infancy must be calculated from the first establishment of the factory and not from the moment of time when the figure of 20 or more is first reached.9. Applying these rulings, it is quite clear that in this case, the factory must be taken to have started in the year 1957 and that is the point of time when the establishment first came into existence. On 13th November, 1962, it had already a life of 5 years, and on that date when 20 workmen came to be employed, the scheme under the Employees Provident Funds Act began to apply. The learned Magistrate was therefore wrong in calculating the period of infancy from the first employment of 20 workmen. He had to calculate that period from the first day on which the establishment came into existence. The acquittal of the respondent Satpal in the three appeals was therefore erroneous and must be set aside.
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Jawahar Singh Vs. Bala Jain | he received a telephonic message indicating that his nephew, Jatin, had met with an accident. In his deposition, he stated that the key of the motorcycle was on the dining table of his house and without his knowledge and consent, Jatin took the keys of the motorcycle and was, thereafter, involved in the accident. It was submitted that despite the same, the Motor Accident Claims Tribunal also held him to be responsible for the death of the victim in the accident and while a sum of 8,35,067/- with interest @7% from the date of institution of the petition till the date of realisation was awarded in favour of the Claimants, the Insurance Company, which was directed to pay the said amount in the first instance, was given the right to recover the same from the Petitioner. He submitted that it was in view of such wrong approach to the problem that the judgment and order of the High Court impugned in the Special Leave Petition was liable to be set aside. 8. On the other hand, it was urged by learned counsel for the Respondents, that the orders of the Tribunal and the High Court did not call for any interference, since the factum of rash and negligent driving by Jatin had been duly proved from the evidence of PW.8 and there was nothing at all to show that the deceased had in any way contributed to the accident by his negligence or that the petitioner had taken sufficient precaution to see that his motorcycle was not misused by any third party. 9. On behalf of Respondent No.6, National Insurance Company Ltd., it was sought to be urged that at the time of the accident, the motorcycle was being driven in breach of the terms and conditions of the Insurance Policy and, accordingly, the Insurance Company could not be held liable for making payment of the compensation awarded by the Motor Accident Claims Tribunal. Apart from the fact that Jatin, who was riding the motorcycle, did not have a valid driving licence, it had also been established that he was a minor at the time of the accident and consequently the Insurance Company had been rightly relieved of the liability of payment of compensation to the Claimants and such liability had been correctly fixed on the owner of the motorcycle, Jawahar Singh. It has been well settled that if it is not possible for an awardee to recover the compensation awarded against the driver of the vehicle, the liability to make payment of the compensation awarded fell on the owner of the vehicle. It was submitted that in this case since the person riding the motorcycle at the time of accident was a minor, the responsibility for paying the compensation awarded fell on the owner of the motorcycle. In fact, in the case of Ishwar Chandra Vs. Oriental Insurance Co. Ltd. [(2007) 3 AD (SC) 753] , it was held by this Court that in case the driver of the vehicle did not have a licence at all, the liability to make payment of compensation fell on the owner since it was his obligation to take adequate care to see that the driver had an appropriate licence to drive the vehicle. Before the Tribunal reliance was also placed on the decision in the case of National Insurance Co. Ltd. Vs. G. Mohd. Vani & Ors. [2004 ACJ 1424 ] and National Insurance Co. Ltd. Vs. Candingeddawa & Ors. [2005 ACJ 40 ], wherein it was held that if the driver of the offending vehicle did not have a valid driving licence, then the Insurance Company after paying the compensation amount would be entitled to recover the same from the owner of the vehicle. It was submitted that no interference was called for with the judgment and order of the High Court impugned in the Special Leave Petition. 10. Having heard learned counsel for the respective parties, we are inclined to agree with the Respondents that this is not a case for interference in view of the fact that admittedly the motorcycle belonging to the Petitioner was being driven by Jatin, who had no licence to drive the same and was, in fact, a minor on the date of the accident. While issuing notice on 2nd April, 2009, we had limited the same to the question regarding liability to pay compensation on account of contributory negligence by the deceased who was riding a scooter, in causing the accident to happen. 11. We cannot shut our eyes to the fact that it was Jatin, who came from behind on the motorcycle and hit the scooter of the deceased from behind. The responsibility in causing the accident was, therefore, found to be solely that of Jatin. However, since Jatin was a minor and it was the responsibility of the Petitioner to ensure that his motorcycle was not misused and that too by a minor who had no licence to drive the same, the Motor Accident Claims Tribunal quite rightly saddled the liability for payment of compensation on the Petitioner and, accordingly, directed the Insurance Company to pay the awarded amount to the awardees and, thereafter, to recover the same from the Petitioner. The said question has been duly considered by the Tribunal and was correctly decided. The High Court rightly chose not to interfere with the same. 12. Without going into the merits of the case, we are of the view that the story of Jatin, who was a minor, walking into the house of the Petitioner and taking the keys of the motorcycle without any intimation to the Petitioner, appears to be highly improbable and far-fetched. It is difficult to accept the defence of the Petitioner that the keys of the motorcycle were taken by Jatin without his knowledge. Having regard to the aforesaid facts, we are not inclined to accept the case of contributory negligence on the part of the deceased, attempted to be made out on behalf of the Petitioner. | 0[ds]10. Having heard learned counsel for the respective parties, we are inclined to agree with the Respondents that this is not a case for interference in view of the fact that admittedly the motorcycle belonging to the Petitioner was being driven by Jatin, who had no licence to drive the same and was, in fact, a minor on the date of the accident. While issuing notice on 2nd April, 2009, we had limited the same to the question regarding liability to pay compensation on account of contributory negligence by the deceased who was riding a scooter, in causing the accident to happen11. We cannot shut our eyes to the fact that it was Jatin, who came from behind on the motorcycle and hit the scooter of the deceased from behind. The responsibility in causing the accident was, therefore, found to be solely that of Jatin. However, since Jatin was a minor and it was the responsibility of the Petitioner to ensure that his motorcycle was not misused and that too by a minor who had no licence to drive the same, the Motor Accident Claims Tribunal quite rightly saddled the liability for payment of compensation on the Petitioner and, accordingly, directed the Insurance Company to pay the awarded amount to the awardees and, thereafter, to recover the same from the Petitioner. The said question has been duly considered by the Tribunal and was correctly decided. The High Court rightly chose not to interfere with the same12. Without going into the merits of the case, we are of the view that the story of Jatin, who was a minor, walking into the house of the Petitioner and taking the keys of the motorcycle without any intimation to the Petitioner, appears to be highly improbable and far-fetched. It is difficult to accept the defence of the Petitioner that the keys of the motorcycle were taken by Jatin without his knowledge. Having regard to the aforesaid facts, we are not inclined to accept the case of contributory negligence on the part of the deceased, attempted to be made out on behalf of the Petitioner. | 0 | 1,989 | 389 | ### 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:
he received a telephonic message indicating that his nephew, Jatin, had met with an accident. In his deposition, he stated that the key of the motorcycle was on the dining table of his house and without his knowledge and consent, Jatin took the keys of the motorcycle and was, thereafter, involved in the accident. It was submitted that despite the same, the Motor Accident Claims Tribunal also held him to be responsible for the death of the victim in the accident and while a sum of 8,35,067/- with interest @7% from the date of institution of the petition till the date of realisation was awarded in favour of the Claimants, the Insurance Company, which was directed to pay the said amount in the first instance, was given the right to recover the same from the Petitioner. He submitted that it was in view of such wrong approach to the problem that the judgment and order of the High Court impugned in the Special Leave Petition was liable to be set aside. 8. On the other hand, it was urged by learned counsel for the Respondents, that the orders of the Tribunal and the High Court did not call for any interference, since the factum of rash and negligent driving by Jatin had been duly proved from the evidence of PW.8 and there was nothing at all to show that the deceased had in any way contributed to the accident by his negligence or that the petitioner had taken sufficient precaution to see that his motorcycle was not misused by any third party. 9. On behalf of Respondent No.6, National Insurance Company Ltd., it was sought to be urged that at the time of the accident, the motorcycle was being driven in breach of the terms and conditions of the Insurance Policy and, accordingly, the Insurance Company could not be held liable for making payment of the compensation awarded by the Motor Accident Claims Tribunal. Apart from the fact that Jatin, who was riding the motorcycle, did not have a valid driving licence, it had also been established that he was a minor at the time of the accident and consequently the Insurance Company had been rightly relieved of the liability of payment of compensation to the Claimants and such liability had been correctly fixed on the owner of the motorcycle, Jawahar Singh. It has been well settled that if it is not possible for an awardee to recover the compensation awarded against the driver of the vehicle, the liability to make payment of the compensation awarded fell on the owner of the vehicle. It was submitted that in this case since the person riding the motorcycle at the time of accident was a minor, the responsibility for paying the compensation awarded fell on the owner of the motorcycle. In fact, in the case of Ishwar Chandra Vs. Oriental Insurance Co. Ltd. [(2007) 3 AD (SC) 753] , it was held by this Court that in case the driver of the vehicle did not have a licence at all, the liability to make payment of compensation fell on the owner since it was his obligation to take adequate care to see that the driver had an appropriate licence to drive the vehicle. Before the Tribunal reliance was also placed on the decision in the case of National Insurance Co. Ltd. Vs. G. Mohd. Vani & Ors. [2004 ACJ 1424 ] and National Insurance Co. Ltd. Vs. Candingeddawa & Ors. [2005 ACJ 40 ], wherein it was held that if the driver of the offending vehicle did not have a valid driving licence, then the Insurance Company after paying the compensation amount would be entitled to recover the same from the owner of the vehicle. It was submitted that no interference was called for with the judgment and order of the High Court impugned in the Special Leave Petition. 10. Having heard learned counsel for the respective parties, we are inclined to agree with the Respondents that this is not a case for interference in view of the fact that admittedly the motorcycle belonging to the Petitioner was being driven by Jatin, who had no licence to drive the same and was, in fact, a minor on the date of the accident. While issuing notice on 2nd April, 2009, we had limited the same to the question regarding liability to pay compensation on account of contributory negligence by the deceased who was riding a scooter, in causing the accident to happen. 11. We cannot shut our eyes to the fact that it was Jatin, who came from behind on the motorcycle and hit the scooter of the deceased from behind. The responsibility in causing the accident was, therefore, found to be solely that of Jatin. However, since Jatin was a minor and it was the responsibility of the Petitioner to ensure that his motorcycle was not misused and that too by a minor who had no licence to drive the same, the Motor Accident Claims Tribunal quite rightly saddled the liability for payment of compensation on the Petitioner and, accordingly, directed the Insurance Company to pay the awarded amount to the awardees and, thereafter, to recover the same from the Petitioner. The said question has been duly considered by the Tribunal and was correctly decided. The High Court rightly chose not to interfere with the same. 12. Without going into the merits of the case, we are of the view that the story of Jatin, who was a minor, walking into the house of the Petitioner and taking the keys of the motorcycle without any intimation to the Petitioner, appears to be highly improbable and far-fetched. It is difficult to accept the defence of the Petitioner that the keys of the motorcycle were taken by Jatin without his knowledge. Having regard to the aforesaid facts, we are not inclined to accept the case of contributory negligence on the part of the deceased, attempted to be made out on behalf of the Petitioner.
### Response:
0
### Explanation:
10. Having heard learned counsel for the respective parties, we are inclined to agree with the Respondents that this is not a case for interference in view of the fact that admittedly the motorcycle belonging to the Petitioner was being driven by Jatin, who had no licence to drive the same and was, in fact, a minor on the date of the accident. While issuing notice on 2nd April, 2009, we had limited the same to the question regarding liability to pay compensation on account of contributory negligence by the deceased who was riding a scooter, in causing the accident to happen11. We cannot shut our eyes to the fact that it was Jatin, who came from behind on the motorcycle and hit the scooter of the deceased from behind. The responsibility in causing the accident was, therefore, found to be solely that of Jatin. However, since Jatin was a minor and it was the responsibility of the Petitioner to ensure that his motorcycle was not misused and that too by a minor who had no licence to drive the same, the Motor Accident Claims Tribunal quite rightly saddled the liability for payment of compensation on the Petitioner and, accordingly, directed the Insurance Company to pay the awarded amount to the awardees and, thereafter, to recover the same from the Petitioner. The said question has been duly considered by the Tribunal and was correctly decided. The High Court rightly chose not to interfere with the same12. Without going into the merits of the case, we are of the view that the story of Jatin, who was a minor, walking into the house of the Petitioner and taking the keys of the motorcycle without any intimation to the Petitioner, appears to be highly improbable and far-fetched. It is difficult to accept the defence of the Petitioner that the keys of the motorcycle were taken by Jatin without his knowledge. Having regard to the aforesaid facts, we are not inclined to accept the case of contributory negligence on the part of the deceased, attempted to be made out on behalf of the Petitioner.
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Sabha Shanker Dube Vs. Divisional Forest Officer & Ors | pay scales to the daily wagers. A direction was given by this Court to the Principal Chief Conservator of Forests and the Principal Secretary to the Department of Forests, State of Uttar Pradesh to file separate affidavits in the High Court regarding the implementation of the directions. Mr. S.R. Singh, learned Senior Advocate appearing for some of the Appellants informed us that all the daily wagers were paid the minimum of the pay scales from 29th January, 2016 to 31st March, 2018 at the rate of Rs.18,000/- per month. After 31st March, 2018, the pay was revised to 7,000/- per month. He submitted that according to the recommendations of the 7th Pay Commission, the minimum of the pay scale to which the Appellants are entitled to is Rs.18,000/-.6. Ms. Aishwarya Bhati, learned Addl. Advocate General appearing for the State of Uttar Pradesh contended that the Appellants are working in projects after being employed as and when the necessity arises. There is no continuity of service and the employment of the Appellants is made periodically after long breaks. She submitted that the Appellants are not eligible for regularization in accordance with the rules and they are not working on sanctioned posts. She also submitted that any relief granted in favour of the Appellants will result in a heavy burden on the State exchequer.7. It is necessary for us to refer to the judgment of the Division Bench of the High Court of Allahabad in Special Appeal No.1530 of 2007 as all the impugned Special Appeals were dismissed by following the said judgment. The directions issued by the learned Single Judge to reconsider the Writ Petitioners for regularization of their services by ignoring the minimum educational qualifications and the physical endurance requirements as well as continuance of the Writ Petitioners on a daily wage basis with the minimum of the pay scales were set aside by the Division Bench.8. The daily wagers relied upon a judgment of this Court in Putti Lal (supra) and submitted that the same relief may be extended to them. It is relevant to note that the judgment in Putti Lal (supra) relates to a dispute similar to that involved in this case. Daily rated wage earners in the Forest Department in the State of Uttar Pradesh approached the High Court for regularization of their services. The Division Bench of the High Court of Allahabad directed the State Government to constitute the Committee as directed in order to frame the scheme for regularization. The judgment of the High Court that the daily rated wage workers shall be paid at the minimum of the pay scales was affirmed by this Court on the principle of equal pay for equal work. The Division Bench of the High Court while deciding Special Appeal No.1530 of 2007 referred to the judgment in Putti Lal (supra) but placed reliance on a later judgment of this Court Tilak Raj (supra). The Division Bench of the High Court also cited the case of Surjit Singh (supra) to hold that the daily wagers cannot seek the benefit of the judgment of Putti Lal (supra) case in view of the subsequent decisions of this Court wherein, according to the High Court, it was held that daily wage employees were not entitled to the minimum of the pay scales.9. On a comprehensive consideration of the entire law on the subject of parity of pay scales on the principle of equal pay for equal work, this Court in Jagjit Singh (supra) held as follows:? 58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his selfrespect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.? 10. The issue that was considered by this Court in Jagjit Singh (supra) is whether temporary employees (daily wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj (supra) and Surjit Singh (supra), this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post.11. In view of the judgment in Jagjit Singh (supra), we are unable to uphold the view of the High Court that the Appellants-herein are not entitled to be paid the minimum of the pay scales. We are not called upon to adjudicate on the rights of the Appellants relating to the regularization of their services. We are concerned only with the principle laid down by this Court initially in Putti Lal (supra) relating to persons who are similarly situated to the Appellants and later affirmed in Jagjit Singh (supra) that temporary employees are entitled to minimum of the pay scales as long as they continue in service.12. We express no opinion on the contention of the State Government that the Appellants are not entitled to the reliefs as they are not working on Group ‘D? posts and that some of them worked for short periods in projects. | 1[ds]7. It is necessary for us to refer to the judgment of the Division Bench of the High Court of Allahabad in Special Appeal No.1530 of 2007 as all the impugned Special Appeals were dismissed by following the said judgment. The directions issued by the learned Single Judge to reconsider the Writ Petitioners for regularization of their services by ignoring the minimum educational qualifications and the physical endurance requirements as well as continuance of the Writ Petitioners on a daily wage basis with the minimum of the pay scales were set aside by the Division Bench10. The issue that was considered by this Court in Jagjit Singh (supra) is whether temporary employees (daily wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj (supra) and Surjit Singh (supra), this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post11. In view of the judgment in Jagjit Singh (supra), we are unable to uphold the view of the High Court that the Appellants-herein are not entitled to be paid the minimum of the pay scales. We are not called upon to adjudicate on the rights of the Appellants relating to the regularization of their services. We are concerned only with the principle laid down by this Court initially in Putti Lal (supra) relating to persons who are similarly situated to the Appellants and later affirmed in Jagjit Singh (supra) that temporary employees are entitled to minimum of the pay scales as long as they continue in service12. We express no opinion on the contention of the State Government that the Appellants are not entitled to the reliefs as they are not working on Group ‘D? posts and that some of them worked for short periods in projects. | 1 | 2,021 | 386 | ### 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:
pay scales to the daily wagers. A direction was given by this Court to the Principal Chief Conservator of Forests and the Principal Secretary to the Department of Forests, State of Uttar Pradesh to file separate affidavits in the High Court regarding the implementation of the directions. Mr. S.R. Singh, learned Senior Advocate appearing for some of the Appellants informed us that all the daily wagers were paid the minimum of the pay scales from 29th January, 2016 to 31st March, 2018 at the rate of Rs.18,000/- per month. After 31st March, 2018, the pay was revised to 7,000/- per month. He submitted that according to the recommendations of the 7th Pay Commission, the minimum of the pay scale to which the Appellants are entitled to is Rs.18,000/-.6. Ms. Aishwarya Bhati, learned Addl. Advocate General appearing for the State of Uttar Pradesh contended that the Appellants are working in projects after being employed as and when the necessity arises. There is no continuity of service and the employment of the Appellants is made periodically after long breaks. She submitted that the Appellants are not eligible for regularization in accordance with the rules and they are not working on sanctioned posts. She also submitted that any relief granted in favour of the Appellants will result in a heavy burden on the State exchequer.7. It is necessary for us to refer to the judgment of the Division Bench of the High Court of Allahabad in Special Appeal No.1530 of 2007 as all the impugned Special Appeals were dismissed by following the said judgment. The directions issued by the learned Single Judge to reconsider the Writ Petitioners for regularization of their services by ignoring the minimum educational qualifications and the physical endurance requirements as well as continuance of the Writ Petitioners on a daily wage basis with the minimum of the pay scales were set aside by the Division Bench.8. The daily wagers relied upon a judgment of this Court in Putti Lal (supra) and submitted that the same relief may be extended to them. It is relevant to note that the judgment in Putti Lal (supra) relates to a dispute similar to that involved in this case. Daily rated wage earners in the Forest Department in the State of Uttar Pradesh approached the High Court for regularization of their services. The Division Bench of the High Court of Allahabad directed the State Government to constitute the Committee as directed in order to frame the scheme for regularization. The judgment of the High Court that the daily rated wage workers shall be paid at the minimum of the pay scales was affirmed by this Court on the principle of equal pay for equal work. The Division Bench of the High Court while deciding Special Appeal No.1530 of 2007 referred to the judgment in Putti Lal (supra) but placed reliance on a later judgment of this Court Tilak Raj (supra). The Division Bench of the High Court also cited the case of Surjit Singh (supra) to hold that the daily wagers cannot seek the benefit of the judgment of Putti Lal (supra) case in view of the subsequent decisions of this Court wherein, according to the High Court, it was held that daily wage employees were not entitled to the minimum of the pay scales.9. On a comprehensive consideration of the entire law on the subject of parity of pay scales on the principle of equal pay for equal work, this Court in Jagjit Singh (supra) held as follows:? 58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his selfrespect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.? 10. The issue that was considered by this Court in Jagjit Singh (supra) is whether temporary employees (daily wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj (supra) and Surjit Singh (supra), this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post.11. In view of the judgment in Jagjit Singh (supra), we are unable to uphold the view of the High Court that the Appellants-herein are not entitled to be paid the minimum of the pay scales. We are not called upon to adjudicate on the rights of the Appellants relating to the regularization of their services. We are concerned only with the principle laid down by this Court initially in Putti Lal (supra) relating to persons who are similarly situated to the Appellants and later affirmed in Jagjit Singh (supra) that temporary employees are entitled to minimum of the pay scales as long as they continue in service.12. We express no opinion on the contention of the State Government that the Appellants are not entitled to the reliefs as they are not working on Group ‘D? posts and that some of them worked for short periods in projects.
### Response:
1
### Explanation:
7. It is necessary for us to refer to the judgment of the Division Bench of the High Court of Allahabad in Special Appeal No.1530 of 2007 as all the impugned Special Appeals were dismissed by following the said judgment. The directions issued by the learned Single Judge to reconsider the Writ Petitioners for regularization of their services by ignoring the minimum educational qualifications and the physical endurance requirements as well as continuance of the Writ Petitioners on a daily wage basis with the minimum of the pay scales were set aside by the Division Bench10. The issue that was considered by this Court in Jagjit Singh (supra) is whether temporary employees (daily wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj (supra) and Surjit Singh (supra), this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post11. In view of the judgment in Jagjit Singh (supra), we are unable to uphold the view of the High Court that the Appellants-herein are not entitled to be paid the minimum of the pay scales. We are not called upon to adjudicate on the rights of the Appellants relating to the regularization of their services. We are concerned only with the principle laid down by this Court initially in Putti Lal (supra) relating to persons who are similarly situated to the Appellants and later affirmed in Jagjit Singh (supra) that temporary employees are entitled to minimum of the pay scales as long as they continue in service12. We express no opinion on the contention of the State Government that the Appellants are not entitled to the reliefs as they are not working on Group ‘D? posts and that some of them worked for short periods in projects.
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M/S. Purohit And Company Vs. Khatoonbee And Anr | her legal right so as to obtain a writ of or in the nature of mandamus directing the appellant herein to reinstate her in service. She was advised to withdraw the writ petition presumably because she would not have obtained any relief in the said proceeding. Even the High Court could have dismissed the writ petition on the ground of delay or could have otherwise refused to exercise its discretionary jurisdiction. The conduct of the respondent in approaching the Labour Court after more than seven years had, therefore, been considered to be a relevant factor by the Labour Court for refusing to grant any relief to her. Such a consideration on the part of the Labour Court cannot be said to be an irrelevant one. The Labour Court in the aforementioned situation cannot be said to have exercised its discretionary jurisdiction injudiciously, arbitrarily and capriciously warranting interference at the hands of the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution.21. The matter might have been different had the respondent been appointed by the appellant in a permanent vacancy.22. Both HUDA and the appellant are statutory organizations. The service of the respondent with the Appellant was an ad hoc one. She served the appellant only for a period of one year three months; whereas she had been serving HUDA for more than sixteen years. Even if she is directed to be reinstated in the services of the appellant without back wages as was directed by the High Court, the same would remain an ad hoc one and, thus, her services can be terminated upon compliance of the provisions of the Industrial Disputes Act. It is also relevant to note that there may or may not now be any regular vacancy with the appellant-Bank. We have noticed hereinbefore that in the year 1996, the vacancies had been filled up and a third party right had been created. It has not been pointed out to us that there exists a vacancy. Having considered the equities between the parties, we are of the opinion that it was not a fit case where the High Court should have interfered with the discretionary jurisdiction exercised by the Labour Court.23. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. This appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs." (emphasis is ours) It would be relevant to mention, that the above judgment was rendered in a matter, where the challenge was raised under the provisions of the Industrial Disputes Act, 1947, wherein also no period of limitation is prescribed to approach the Industrial Tribunal. Despite the above, this Court arrived at the conclusion, that a claim raised after a period of 7 years, was not a surviving claim. And therefore, the claim petition was held to be not maintainable. 12. Drawing an analogy to the judgments rendered under the Consumer Protection Act, 1986, as also, under the Industrial Disputes Act, 1947, it was the submission of the learned counsel for the appellant, that even though no period of limitation remains prescribed, after the amendment of Section 166 of the Motor Vehicles Act, 1988, whereby sub-Section (3) of Section 166 came to be deleted (with effect from 14.11.1994), yet it would be imperative to determine, whether at the juncture when the claimant approached the Motor Accident Claims Tribunal, the claim was a live and surviving claim. 13. We are satisfied, that the submission advanced at the hands of the learned counsel for the appellant merits acceptance. The judgments on which the High Court had relied, and on which the respondents have emphasised, in our considered view, are not an impediment, to the acceptance of the submission canvassed on behalf of the appellant. We say so, because in Dhannalals case (supra) the question of inordinate delay in approaching the Motor Accident Claims Tribunal, was not considered. In the second judgment in C. Padmas case (supra), it was considered. And in the C. Padmas case, the first conclusion drawn in paragraph 12 was "... if otherwise the claim is found genuine...". We are of the considered view, that a claim raised before the Motor Accident Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. We are satisfied in accepting the declared position of law, expressed in the judgments relied upon by the learned counsel for the appellant. It is not as if, it can be open to all and sundry, to approach a Motor Accident Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time.14. The question of reasonability would naturally depend on the facts and circumstances of each case. We are however, satisfied, that a delay of 28 years, even without reference to any other fact, cannot be considered as a prima facie reasonable period, for approaching the Motor Accident Claims Tribunal. The only justification indicated by the respondents, for initiating proceedings after a lapse of 28 years, emerges from paragraph 4, contained in the application for condonation of delay, filed by the claimants, before the Tribunal. Paragraph 4 aforementioned is extracted hereunder: "4. That the Petitioners are poor person and they have no knowledge about the Law. Also the Respondent has not pay the single pie towards any compensation." 15. Having given our thoughtful consideration to the justification expressed at the behest of the respondents, for approaching the Tribunal, after a period of 28 years, we are of the view, that the explanation tendered, cannot be accepted. Undoubtedly, the claim (pertaining to an accident which had occurred on 02.02.1977), in the facts and circumstances of the instant case, was stale, and ought to have been treated as a dead claim, at the point of time, when the respondents approached the Tribunal by filing a claim petition, on 23.02.2005. | 1[ds]13. We are satisfied, that the submission advanced at the hands of the learned counsel for the appellant merits acceptance. The judgments on which the High Court had relied, and on which the respondents have emphasised, in our considered view, are not an impediment, to the acceptance of the submission canvassed on behalf of the appellant. We say so, because in Dhannalals case (supra) the question of inordinate delay in approaching the Motor Accident Claims Tribunal, was not considered. In the second judgment in C. Padmas case (supra), it was considered. And in the C. Padmas case, the first conclusion drawn in paragraph 12 was "... if otherwise the claim is found genuine...". We are of the considered view, that a claim raised before the Motor Accident Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. We are satisfied in accepting the declared position of law, expressed in the judgments relied upon by the learned counsel for the appellant. It is not as if, it can be open to all and sundry, to approach a Motor Accident Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time.14. The question of reasonability would naturally depend on the facts and circumstances of each case. We are however, satisfied, that a delay of 28 years, even without reference to any other fact, cannot be considered as a prima facie reasonable period, for approaching the Motor Accident Claims Tribunal. The only justification indicated by the respondents, for initiating proceedings after a lapse of 28 years, emerges from paragraph 4, contained in the application for condonation of delay, filed by the claimants, before the Tribunal. Paragraph 4 aforementioned is extractedHaving given our thoughtful consideration to the justification expressed at the behest of the respondents, for approaching the Tribunal, after a period of 28 years, we are of the view, that the explanation tendered, cannot be accepted. Undoubtedly, the claim (pertaining to an accident which had occurred on 02.02.1977), in the facts and circumstances of the instant case, was stale, and ought to have been treated as a dead claim, at the point of time, when the respondents approached the Tribunal by filing a claim petition, on 23.02.2005. | 1 | 5,664 | 460 | ### Instruction:
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her legal right so as to obtain a writ of or in the nature of mandamus directing the appellant herein to reinstate her in service. She was advised to withdraw the writ petition presumably because she would not have obtained any relief in the said proceeding. Even the High Court could have dismissed the writ petition on the ground of delay or could have otherwise refused to exercise its discretionary jurisdiction. The conduct of the respondent in approaching the Labour Court after more than seven years had, therefore, been considered to be a relevant factor by the Labour Court for refusing to grant any relief to her. Such a consideration on the part of the Labour Court cannot be said to be an irrelevant one. The Labour Court in the aforementioned situation cannot be said to have exercised its discretionary jurisdiction injudiciously, arbitrarily and capriciously warranting interference at the hands of the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution.21. The matter might have been different had the respondent been appointed by the appellant in a permanent vacancy.22. Both HUDA and the appellant are statutory organizations. The service of the respondent with the Appellant was an ad hoc one. She served the appellant only for a period of one year three months; whereas she had been serving HUDA for more than sixteen years. Even if she is directed to be reinstated in the services of the appellant without back wages as was directed by the High Court, the same would remain an ad hoc one and, thus, her services can be terminated upon compliance of the provisions of the Industrial Disputes Act. It is also relevant to note that there may or may not now be any regular vacancy with the appellant-Bank. We have noticed hereinbefore that in the year 1996, the vacancies had been filled up and a third party right had been created. It has not been pointed out to us that there exists a vacancy. Having considered the equities between the parties, we are of the opinion that it was not a fit case where the High Court should have interfered with the discretionary jurisdiction exercised by the Labour Court.23. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. This appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs." (emphasis is ours) It would be relevant to mention, that the above judgment was rendered in a matter, where the challenge was raised under the provisions of the Industrial Disputes Act, 1947, wherein also no period of limitation is prescribed to approach the Industrial Tribunal. Despite the above, this Court arrived at the conclusion, that a claim raised after a period of 7 years, was not a surviving claim. And therefore, the claim petition was held to be not maintainable. 12. Drawing an analogy to the judgments rendered under the Consumer Protection Act, 1986, as also, under the Industrial Disputes Act, 1947, it was the submission of the learned counsel for the appellant, that even though no period of limitation remains prescribed, after the amendment of Section 166 of the Motor Vehicles Act, 1988, whereby sub-Section (3) of Section 166 came to be deleted (with effect from 14.11.1994), yet it would be imperative to determine, whether at the juncture when the claimant approached the Motor Accident Claims Tribunal, the claim was a live and surviving claim. 13. We are satisfied, that the submission advanced at the hands of the learned counsel for the appellant merits acceptance. The judgments on which the High Court had relied, and on which the respondents have emphasised, in our considered view, are not an impediment, to the acceptance of the submission canvassed on behalf of the appellant. We say so, because in Dhannalals case (supra) the question of inordinate delay in approaching the Motor Accident Claims Tribunal, was not considered. In the second judgment in C. Padmas case (supra), it was considered. And in the C. Padmas case, the first conclusion drawn in paragraph 12 was "... if otherwise the claim is found genuine...". We are of the considered view, that a claim raised before the Motor Accident Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. We are satisfied in accepting the declared position of law, expressed in the judgments relied upon by the learned counsel for the appellant. It is not as if, it can be open to all and sundry, to approach a Motor Accident Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time.14. The question of reasonability would naturally depend on the facts and circumstances of each case. We are however, satisfied, that a delay of 28 years, even without reference to any other fact, cannot be considered as a prima facie reasonable period, for approaching the Motor Accident Claims Tribunal. The only justification indicated by the respondents, for initiating proceedings after a lapse of 28 years, emerges from paragraph 4, contained in the application for condonation of delay, filed by the claimants, before the Tribunal. Paragraph 4 aforementioned is extracted hereunder: "4. That the Petitioners are poor person and they have no knowledge about the Law. Also the Respondent has not pay the single pie towards any compensation." 15. Having given our thoughtful consideration to the justification expressed at the behest of the respondents, for approaching the Tribunal, after a period of 28 years, we are of the view, that the explanation tendered, cannot be accepted. Undoubtedly, the claim (pertaining to an accident which had occurred on 02.02.1977), in the facts and circumstances of the instant case, was stale, and ought to have been treated as a dead claim, at the point of time, when the respondents approached the Tribunal by filing a claim petition, on 23.02.2005.
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13. We are satisfied, that the submission advanced at the hands of the learned counsel for the appellant merits acceptance. The judgments on which the High Court had relied, and on which the respondents have emphasised, in our considered view, are not an impediment, to the acceptance of the submission canvassed on behalf of the appellant. We say so, because in Dhannalals case (supra) the question of inordinate delay in approaching the Motor Accident Claims Tribunal, was not considered. In the second judgment in C. Padmas case (supra), it was considered. And in the C. Padmas case, the first conclusion drawn in paragraph 12 was "... if otherwise the claim is found genuine...". We are of the considered view, that a claim raised before the Motor Accident Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. We are satisfied in accepting the declared position of law, expressed in the judgments relied upon by the learned counsel for the appellant. It is not as if, it can be open to all and sundry, to approach a Motor Accident Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time.14. The question of reasonability would naturally depend on the facts and circumstances of each case. We are however, satisfied, that a delay of 28 years, even without reference to any other fact, cannot be considered as a prima facie reasonable period, for approaching the Motor Accident Claims Tribunal. The only justification indicated by the respondents, for initiating proceedings after a lapse of 28 years, emerges from paragraph 4, contained in the application for condonation of delay, filed by the claimants, before the Tribunal. Paragraph 4 aforementioned is extractedHaving given our thoughtful consideration to the justification expressed at the behest of the respondents, for approaching the Tribunal, after a period of 28 years, we are of the view, that the explanation tendered, cannot be accepted. Undoubtedly, the claim (pertaining to an accident which had occurred on 02.02.1977), in the facts and circumstances of the instant case, was stale, and ought to have been treated as a dead claim, at the point of time, when the respondents approached the Tribunal by filing a claim petition, on 23.02.2005.
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Amrit Lal Berry Vs. Collector Of Central Excise, New Delhi & Ors | of salary as a result of an alleged wrong preparation of a seniority list in 1961. The memorandum or 1972 attempts to satisfy the grievance of the petitioners to the extent that it is reasonably possible, consistently with the equitable rights of others, that the principle of length of service laid down in the 1949 memorandum should govern the cases of those appointed prior to 1959.27. We think that the 1972 memorandum may be fairly interpreted to mean that (a) the 1949 memorandum will apply to all cases covered by it till the 1959 memorandum came into effect; (b) that those who were, in good faith and in the regular course, confirmed and/or promoted regularly though by an honest mis-application of the 1959 memorandum will not be disturbed even if they be junior to the claimants under the 1949 memorandum; (c) that in future, for vacancies and quotas, as earlier explained, those with longer service, as contemplated by the 1949 memorandum, will be considered for confirmation and promotion; and (d) that in the subsequent career of those who stand to benefit by the 1959 memorandum, that factor will be reckoned in their favour when further opportunities for promotion arise, so that they may not suffer for ever from the mis-construction of the memorandum made by the Excise Department. It will be for the Department to consider what consequential benefits can be given as a result of reconsideration of a case.28. Lastly, it was urged that the fixation of 4-1-1972 as the date after which all confirmations and promotions made would be revised in order to conform to the seniority determined by length of service of persons appointed prior to 22-12-1959 was arbitrary. Reliance was placed upon D. R. Nim v. Union of India, (1967) 2 SCR 325 = (AIR 1967 SC 1301 ) where a date fixed for the application of a particular rule was held to be arbitrary. In reply it was submitted that 4-1-1972 was the date on which this Court delivered judgment in Ravi Vermas case (1972) 2 SCR 992 = (AIR 1972 SC 670 ) (supra) making it finally clear and definite to the Central Excise Department what the correct interpretation of memorandum of 1959 was, and, therefore, the date had not been chosen altogether arbitrarily. A perusal of the memorandum of 1972 Shows that the date 4-1-72 was only chosen for giving the retrospective effect to whatever may be the actions taken on a wrong view of the law after this date. In other words, it means that promotions and confirmations made after 4-1-1972 would, in any case, be reopened. The provisions of the memorandum, which are not very clear as to what will happen in decisions taken before 4-1-1972 by the Excise Department, have been now interpreted by us so that they may be construed in a manner consistent with the apparent objects of the memorandum. The result seems to be that the seniority of all unconfirmed persons is to be determined in accordance with the law as declared by this Court on 4-1-1972; but, as regards persons who had already been bona fide confirmed or promoted before 4-1-1972, no undoing of what had already been done in their favour would be possible. Nevertheless, it was laid down there that the cases of those who had failed to be either considered for confirmation or promotion merely because of the failure to apply the length of service rule for determining seniority, would not suffer but will be reconsidered now subject to existence of vacancies in the grade for confirmation, or in the promotion quota.29. We are not quashing any part of the memorandum of 1972 as we do not so interpret it as to make it possible for the Central Excise Department to violate Article 16 (1) of the Constitution by resorting to it. We take its meaning to be -and, so construed, it will be constitutional -that the declaration of law by this Court on 4-1-1972 will affect all cases in which the principles of 1949 memorandum can still be applied despite any confirmations wrongly made between 1959 and 4-1-1972. It appears to us that, in cases of promotions wrongly made between 1959 and 4-1-1972, the position, despite the clarification attempted by us, is still left rather vague. As no question of the seniority of a person actually promoted before 4-1-1972 as against that of a person promoted after 4-1-1972 is before us on the footing that both belong to the class of promotees whose seniority, inter se, should be determined by the total lengths of their services, we refrain from pronouncing upon such questions. We hope that a just and reasonable rule for determining such questions of seniority, on a principle of length of service combined with merit, will be evolved by the Excise Department itself to prevent complaints of injustice and future litigation. It is for the Central Excise Department itself to make appropriate rules. It is only when such rules violate or have been so used as to violate the fundamental rights of any group of persons employed by the State that this Court can interfere. In such cases, we see no objection to the filing of writ petitions in representative capacities by aggrieved persons after taking necessary steps under Order 1, Rule 8. Civil Procedure Code, the application of which to proceedings under either Article 226 or 32 of the Constitution does not appear to us to be barred by any provision.30. It is difficult to understand why statutory provisions, on the lines on which provisions have been made for superior services and rules under such provisions are not made to ensure that nothing except just considerations, such as merit tested by performance and integrity revealed by the service records or other reasonable tests as well as length of service, can count in making confirmations or promotions. The petitioners have, however, failed to establish that just and reasonable considerations did not prevail in any particular instance brought to our notice.31. | 0[ds]7. It is true that assertions in each of the two petitions are of a very general character the petitions seem to rest on the assumption that all that need be asserted is the violation of some rule contained in an office memorandum which governed the rights of the petitioners in the past. There is no doubt that the office memorandum of 22-7-1972 was issued, in consequence of the decision of this Court in Ravi Varmas case (1972) 2 SCR 992 = (AIR 1972 SO 670) (supra) dated 4-1-1972, to meet the situation created by it in the context of previous office memoranda on the subject. If the 1972 memorandum correctly interprets and applies the law laid down by this Court there would be no need to proceed further with the consideration of the petitions before us. This memorandum itself gives the history of previous relevant office memoranda and the need for their displacement by new instructions due to the decision of this Court in Ravi Varmas case.Keeping in view the objectives of the revised instructions contained in the O. M. of 22-12-1959, the Ministry of Home Affairs (now department of personnel) have all along held that while persons appointed prior seniority already fixed under the then existing orders,59, permanent employees of a grade, including those confirmed in that grade prior to 22 12-1959, will rank en bloc senior to non-permanent employees of that grade, irrespective of the fact whether such non-permanent employees were appointed to the grade before, on, or after 22-12-1959. Amongst permanent employees confirmed in the grade prior to 22-12-1959 their relative seniority already fixed according to the then existing orders would be maintained and they will rank senior to those confirmed in that grade after 22-12-1959.Amongst those confirmed after 2-12-1959, the relative seniority will be according to the order of confirmation. Similarly, amongst non-permanent employees of a grade, the relative seniority of those appointed prior to 22-12-1959 will be on the basis of the then existing orders, but they will rank en bloc senior to those appointed to that grade after 22-12-1959, but not yet confirmed in the grade.As this Court had, in Ravi Varmas case (1972) 2 SCR 992 = (AIR 1972 SC 670 ) (supra) set out the provisions of the memoranda of 22-6-1949 and 22-12-1959 in extenso, it is not necessary for us to reproduce their contents. We will only indicate the conclusions which emerged from their consideration in Ravi Varmas case. This Court had, after pointing out that the principles contained in the office memorandum of 22-6-1949, although intended originally to meet the situation created by the partition of India and the need to absorb the influx of a large number of new Central Government servants, whose seniority had to be determined, were more generally applied to all Central Government servants, proceeded to hold that the provisions of the memorandum of 1959 specifically stated that they were prospective and did not affect cases which were governed by the earlier office memorandum. The effect of the provisions of the office memorandum of 22-12-1959 was held to be that the new principle "could not apt ply to the persons appointed to the various Central Services before the date of that memorandum". It was also observed there that this Court had, even in Mervyn Continho v. Collector of Customs, Bombay, (1966) 3 SCR 600 = (AIR 1967 SC 52 ) held that the new principle of seniority, contained in memorandum of 22-12-1959, was not to apply retrospectively. In fact, the so-called new principle of 1959 was a restoration of a principle applied before the memorandum of 1949 issued to meet a special and unprecedented situation created by the influx of a large number of Government servants as a result of the partition of India. It may be observed here that the validity of the so-called "new" principles of 1959 memorandum is not assailed before us on the ground that they, standing by themselves violate Article 16 (1) of the Constitution. Ravi Varmas case (1972) 2 SCR 992 = (AIR 1972 SC 670 ) (supra) was decided on the assumption that the whole memorandum of 1959 was valid but had been misinterpreted and misapplied.In the cases before us, the fundamental rights alleged to be violated could only be the general ones embraced by Article 16 (1) of the Constitution which reads:"There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under thea petitioner alleges that he has been denied equality of opportunity for service, during the course of his employment as a Government servant, it is incumbent upon him to disclose not only the rule said to be infringed but also how this opportunity was unjustifiably denied on each particular occasion. The equality of opportunity in a matter relating to employment implies equal treatment to persons similarly situated or in the same category as the petitioner. It postulates equality of conditions under which a number of persons belonging to the same category compete for the same opportunities and a just and impartial application of uniform and legally valid standards in deciding upon competing claims. It does not exclude justifiable discrimination.Even if we were to assume, as the petitioner would like us to do, that a disregard of seniority determined solely by length of service was the only reason for his failure to get the senior grade in 1961, there is yet another hurdle before the petitioner which was not shown to be present in Ravi Varmas case (1972) 2 SCR 992 = (AIR 1972 SC 670 ) (supra), and, therefore, not considered or adjudicated upon in that case. There, no objection based on delay in applying to the Court was taken presumably because it could not be taken.But, a number of promotions having taken place between 1959 and the filing ofs petition in 1971, those who were so promoted and had been satisfactorily discharging, for considerable periods before the filing of the petition, their duties in a higher grade would acquire new claims and qualifications, by lapse of time and due discharge of their new functions so that they could not, unless relief had been sought speedily against their allegedly illegal confirmations and promotions, be equitably equated with the petitioner. The inequality in the equitable balance brought into being by a petitioners own laches and acquiescence cannot be overlooked when considering a claim to enforce the fundamental right to equal treatment. To treat unequals equally would also violate that right. Although, it may not be possible for the State or its agents to plead an estoppel against a claim to the fundamental right to equal treatment, yet, if a petitioner has been so remiss or negligent as to approach the Court for relief after an inordinate and un-explained delay, he certainly jeopardises his claims as it may become inequitable, with circumstances altered by lapse of tune and other facts, to enforce a fundamental right to the detriment of similar claims of innocent third persons.It is true thatAmrit Lal Berryhad amended his petition so as to make it appear that a fresh cause of action accrued in his favour on 22-7-1972 when the office memorandum set out in full above was issued during the pendency of his Writ Petition, and the Writ Petition of K. N. Kapur and others, purports to be directed against the office memorandum of 1972 and consequential instructions. Nevertheless, when we examine the contents of that office memorandum and the substance of the petitions before us, it becomes abundantly clear that what was being really sought by the petitioners was the setting aside of a number of confirmations and promotions which had taken place long before the Writ Petitions were filed without even making necessary assertions to indicate precisely the occasions on which allegedly illegal confirmations and promotions took place and of which person or persons exactly on each occasion. As we have pointed out above, at least those who had been promoted could, after a lapse of a number of years in their new posts, be regarded equitably as persons in a new and separate class.20.It is true thatthe concerned Central Excise Department officials would have known the correct legal position if they had cared to study the decision of this Court in (1966) 3 SCR 600 = (AIR 1967 SC 52 ) (supra) which was pronounced on 14-2-1966. There, this Court had pointed out, inter alia, that the memorandum of 1959 did not apply any new principles retrospectively. That was primarily a case on the validity of the rotational system which was alleged to he struck by the principles of Articles 14 and 16 (1) of the Constitution. Even if the opposite parties had missed the significance of an observation in that case that the principles introduced by 1959 memorandum were not to be applied retrospectively on the terms of that memorandum itself, yet, Government servants who could benefit by this observation - probably they have an organisation to keep a watch over and protect their interests - ought to have also realised the meaning of this pronouncement long ago. They could have raised the question in a Writ Petition in a representative capacity so that a general order could have been obtained to govern all similar cases. They need not have waited for the pronouncement of the law by this Court on4-1-1972 in Ravi Varmas case(1972) 2 SCR 992 = (AIR 1972 SC 670 ) (supra). But, whatever may be the consequences to parties affected by slumbering over their rights, we think that the Central Excise Department must be presumed to know the law as declared by this Court in Mervyn Continuos case (supra) in 1966. We find its lethargy in waiting until 1972 to make any attempt to rectify its errors far from commendable.It is submitted by the learned Counsel for the Excise Department that the real grievance of the petitioners is that they have not been awarded consequential benefits such as promotions and arrears of salary as a result of an alleged wrong preparation of a seniority list in 1961. The memorandum or 1972 attempts to satisfy the grievance of the petitioners to the extent that it is reasonably possible, consistently with the equitable rights of others, that the principle of length of service laid down in the 1949 memorandum should govern the cases of those appointed prior to 1959.We think that the 1972 memorandum may be fairly interpreted to mean that (a) the 1949 memorandum will apply to all cases covered by it till the 1959 memorandum came into effect; (b) that those who were, in good faith and in the regular course, confirmed and/or promoted regularly though by an honest mis-application of the 1959 memorandum will not be disturbed even if they be junior to the claimants under the 1949 memorandum; (c) that in future, for vacancies and quotas, as earlier explained, those with longer service, as contemplated by the 1949 memorandum, will be considered for confirmation and promotion; and (d) that in the subsequent career of those who stand to benefit by the 1959 memorandum, that factor will be reckoned in their favour when further opportunities for promotion arise, so that they may not suffer for ever from the mis-construction of the memorandum made by the Excise Department. It will be for the Department to consider what consequential benefits can be given as a result of reconsideration of a case.28.We are not quashing any part of the memorandum of 1972 as we do not so interpret it as to make it possible for the Central Excise Department to violate Article 16 (1) of the Constitution by resorting to it. We take its meaning to be -and, so construed, it will be constitutional -that the declaration of law by this Court on 4-1-1972 will affect all cases in which the principles of 1949 memorandum can still be applied despite any confirmations wrongly made between 1959 and 4-1-1972. It appears to us that, in cases of promotions wrongly made between 1959 and 4-1-1972, the position, despite the clarification attempted by us, is still left rather vague. As no question of the seniority of a person actually promoted before 4-1-1972 as against that of a person promoted after 4-1-1972 is before us on the footing that both belong to the class of promotees whose seniority, inter se, should be determined by the total lengths of their services, we refrain from pronouncing upon such questions. We hope that a just and reasonable rule for determining such questions of seniority, on a principle of length of service combined with merit, will be evolved by the Excise Department itself to prevent complaints of injustice and future litigation. It is for the Central Excise Department itself to make appropriate rules. It is only when such rules violate or have been so used as to violate the fundamental rights of any group of persons employed by the State that this Court can interfere. In such cases, we see no objection to the filing of writ petitions in representative capacities by aggrieved persons after taking necessary steps under Order 1, Rule 8. Civil Procedure Code, the application of which to proceedings under either Article 226 or 32 of the Constitution does not appear to us to be barred by any provision.It is difficult to understand why statutory provisions, on the lines on which provisions have been made for superior services and rules under such provisions are not made to ensure that nothing except just considerations, such as merit tested by performance and integrity revealed by the service records or other reasonable tests as well as length of service, can count in making confirmations or promotions. The petitioners have, however, failed to establish that just and reasonable considerations did not prevail in any particular instance brought to ourextract from the order shows that, although, the petitioner is a B. A. and strewn as appointed onand, Narinder Singh, the Inspector next in order of seniority, who was only a Matriculate, appointed subsequently onwas confirmed retrospectively53, that is to say, two years earlier than the petitioner. There is, however, a difference in age shown between the two inasmuch as the date of birth of the petitioner is given aswhereas that of Narinder Singh is shown asthese promoted Inspectors are the 77 persons impleaded as respondents 5 to 81 in the petition before us. Out of these, only twelve, with their places shown as lower than the petitioners number 204 in the list prepared before 1959, were specifically mentioned in the list of allegedly illegal promotions ofs petition to this Court | 0 | 9,614 | 2,653 | ### 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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of salary as a result of an alleged wrong preparation of a seniority list in 1961. The memorandum or 1972 attempts to satisfy the grievance of the petitioners to the extent that it is reasonably possible, consistently with the equitable rights of others, that the principle of length of service laid down in the 1949 memorandum should govern the cases of those appointed prior to 1959.27. We think that the 1972 memorandum may be fairly interpreted to mean that (a) the 1949 memorandum will apply to all cases covered by it till the 1959 memorandum came into effect; (b) that those who were, in good faith and in the regular course, confirmed and/or promoted regularly though by an honest mis-application of the 1959 memorandum will not be disturbed even if they be junior to the claimants under the 1949 memorandum; (c) that in future, for vacancies and quotas, as earlier explained, those with longer service, as contemplated by the 1949 memorandum, will be considered for confirmation and promotion; and (d) that in the subsequent career of those who stand to benefit by the 1959 memorandum, that factor will be reckoned in their favour when further opportunities for promotion arise, so that they may not suffer for ever from the mis-construction of the memorandum made by the Excise Department. It will be for the Department to consider what consequential benefits can be given as a result of reconsideration of a case.28. Lastly, it was urged that the fixation of 4-1-1972 as the date after which all confirmations and promotions made would be revised in order to conform to the seniority determined by length of service of persons appointed prior to 22-12-1959 was arbitrary. Reliance was placed upon D. R. Nim v. Union of India, (1967) 2 SCR 325 = (AIR 1967 SC 1301 ) where a date fixed for the application of a particular rule was held to be arbitrary. In reply it was submitted that 4-1-1972 was the date on which this Court delivered judgment in Ravi Vermas case (1972) 2 SCR 992 = (AIR 1972 SC 670 ) (supra) making it finally clear and definite to the Central Excise Department what the correct interpretation of memorandum of 1959 was, and, therefore, the date had not been chosen altogether arbitrarily. A perusal of the memorandum of 1972 Shows that the date 4-1-72 was only chosen for giving the retrospective effect to whatever may be the actions taken on a wrong view of the law after this date. In other words, it means that promotions and confirmations made after 4-1-1972 would, in any case, be reopened. The provisions of the memorandum, which are not very clear as to what will happen in decisions taken before 4-1-1972 by the Excise Department, have been now interpreted by us so that they may be construed in a manner consistent with the apparent objects of the memorandum. The result seems to be that the seniority of all unconfirmed persons is to be determined in accordance with the law as declared by this Court on 4-1-1972; but, as regards persons who had already been bona fide confirmed or promoted before 4-1-1972, no undoing of what had already been done in their favour would be possible. Nevertheless, it was laid down there that the cases of those who had failed to be either considered for confirmation or promotion merely because of the failure to apply the length of service rule for determining seniority, would not suffer but will be reconsidered now subject to existence of vacancies in the grade for confirmation, or in the promotion quota.29. We are not quashing any part of the memorandum of 1972 as we do not so interpret it as to make it possible for the Central Excise Department to violate Article 16 (1) of the Constitution by resorting to it. We take its meaning to be -and, so construed, it will be constitutional -that the declaration of law by this Court on 4-1-1972 will affect all cases in which the principles of 1949 memorandum can still be applied despite any confirmations wrongly made between 1959 and 4-1-1972. It appears to us that, in cases of promotions wrongly made between 1959 and 4-1-1972, the position, despite the clarification attempted by us, is still left rather vague. As no question of the seniority of a person actually promoted before 4-1-1972 as against that of a person promoted after 4-1-1972 is before us on the footing that both belong to the class of promotees whose seniority, inter se, should be determined by the total lengths of their services, we refrain from pronouncing upon such questions. We hope that a just and reasonable rule for determining such questions of seniority, on a principle of length of service combined with merit, will be evolved by the Excise Department itself to prevent complaints of injustice and future litigation. It is for the Central Excise Department itself to make appropriate rules. It is only when such rules violate or have been so used as to violate the fundamental rights of any group of persons employed by the State that this Court can interfere. In such cases, we see no objection to the filing of writ petitions in representative capacities by aggrieved persons after taking necessary steps under Order 1, Rule 8. Civil Procedure Code, the application of which to proceedings under either Article 226 or 32 of the Constitution does not appear to us to be barred by any provision.30. It is difficult to understand why statutory provisions, on the lines on which provisions have been made for superior services and rules under such provisions are not made to ensure that nothing except just considerations, such as merit tested by performance and integrity revealed by the service records or other reasonable tests as well as length of service, can count in making confirmations or promotions. The petitioners have, however, failed to establish that just and reasonable considerations did not prevail in any particular instance brought to our notice.31.
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the principles of Articles 14 and 16 (1) of the Constitution. Even if the opposite parties had missed the significance of an observation in that case that the principles introduced by 1959 memorandum were not to be applied retrospectively on the terms of that memorandum itself, yet, Government servants who could benefit by this observation - probably they have an organisation to keep a watch over and protect their interests - ought to have also realised the meaning of this pronouncement long ago. They could have raised the question in a Writ Petition in a representative capacity so that a general order could have been obtained to govern all similar cases. They need not have waited for the pronouncement of the law by this Court on4-1-1972 in Ravi Varmas case(1972) 2 SCR 992 = (AIR 1972 SC 670 ) (supra). But, whatever may be the consequences to parties affected by slumbering over their rights, we think that the Central Excise Department must be presumed to know the law as declared by this Court in Mervyn Continuos case (supra) in 1966. We find its lethargy in waiting until 1972 to make any attempt to rectify its errors far from commendable.It is submitted by the learned Counsel for the Excise Department that the real grievance of the petitioners is that they have not been awarded consequential benefits such as promotions and arrears of salary as a result of an alleged wrong preparation of a seniority list in 1961. The memorandum or 1972 attempts to satisfy the grievance of the petitioners to the extent that it is reasonably possible, consistently with the equitable rights of others, that the principle of length of service laid down in the 1949 memorandum should govern the cases of those appointed prior to 1959.We think that the 1972 memorandum may be fairly interpreted to mean that (a) the 1949 memorandum will apply to all cases covered by it till the 1959 memorandum came into effect; (b) that those who were, in good faith and in the regular course, confirmed and/or promoted regularly though by an honest mis-application of the 1959 memorandum will not be disturbed even if they be junior to the claimants under the 1949 memorandum; (c) that in future, for vacancies and quotas, as earlier explained, those with longer service, as contemplated by the 1949 memorandum, will be considered for confirmation and promotion; and (d) that in the subsequent career of those who stand to benefit by the 1959 memorandum, that factor will be reckoned in their favour when further opportunities for promotion arise, so that they may not suffer for ever from the mis-construction of the memorandum made by the Excise Department. It will be for the Department to consider what consequential benefits can be given as a result of reconsideration of a case.28.We are not quashing any part of the memorandum of 1972 as we do not so interpret it as to make it possible for the Central Excise Department to violate Article 16 (1) of the Constitution by resorting to it. We take its meaning to be -and, so construed, it will be constitutional -that the declaration of law by this Court on 4-1-1972 will affect all cases in which the principles of 1949 memorandum can still be applied despite any confirmations wrongly made between 1959 and 4-1-1972. It appears to us that, in cases of promotions wrongly made between 1959 and 4-1-1972, the position, despite the clarification attempted by us, is still left rather vague. As no question of the seniority of a person actually promoted before 4-1-1972 as against that of a person promoted after 4-1-1972 is before us on the footing that both belong to the class of promotees whose seniority, inter se, should be determined by the total lengths of their services, we refrain from pronouncing upon such questions. We hope that a just and reasonable rule for determining such questions of seniority, on a principle of length of service combined with merit, will be evolved by the Excise Department itself to prevent complaints of injustice and future litigation. It is for the Central Excise Department itself to make appropriate rules. It is only when such rules violate or have been so used as to violate the fundamental rights of any group of persons employed by the State that this Court can interfere. In such cases, we see no objection to the filing of writ petitions in representative capacities by aggrieved persons after taking necessary steps under Order 1, Rule 8. Civil Procedure Code, the application of which to proceedings under either Article 226 or 32 of the Constitution does not appear to us to be barred by any provision.It is difficult to understand why statutory provisions, on the lines on which provisions have been made for superior services and rules under such provisions are not made to ensure that nothing except just considerations, such as merit tested by performance and integrity revealed by the service records or other reasonable tests as well as length of service, can count in making confirmations or promotions. The petitioners have, however, failed to establish that just and reasonable considerations did not prevail in any particular instance brought to ourextract from the order shows that, although, the petitioner is a B. A. and strewn as appointed onand, Narinder Singh, the Inspector next in order of seniority, who was only a Matriculate, appointed subsequently onwas confirmed retrospectively53, that is to say, two years earlier than the petitioner. There is, however, a difference in age shown between the two inasmuch as the date of birth of the petitioner is given aswhereas that of Narinder Singh is shown asthese promoted Inspectors are the 77 persons impleaded as respondents 5 to 81 in the petition before us. Out of these, only twelve, with their places shown as lower than the petitioners number 204 in the list prepared before 1959, were specifically mentioned in the list of allegedly illegal promotions ofs petition to this Court
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Murlidhar Agarwal & Another Vs. State of Uttar Pradesh & Others | that respondent No. 2 was in lawful occupation and that, in these circumstances, he was entitled to the benefit of the proviso to Section 7-A (1) of the Act and was not liable to be evicted from the premises.3. It was to quash this order that the appellants filed the writ petition before the High Court.4. A learned Single Judge of the Court quashed the order. Respondent No. 2 filed an appeal against the order The Division Bench reversed the order of the learned Single Judge. It is against this order that this appeal has been filed on the basis of a certificate granted under Article 133 (1) (b) of the Constitution.5. The Division Bench was of the view that the learned Single Judge was not justified in interfering with the order passed by the State Government under Section 7-F of the act inasmuch as the order of the State Government did not suffer from any infirmity either on the ground that it has no jurisdiction to pass the order or for the reason that there was an error of law apparent on the face of the record.6. The material provision in Section 7-A of the Act provides:"S.7-A. District Magistrates power to take action against unauthorised occupation- (1) Where in pursuance of an order of the District Magistrate under sub-section (2) of S. 7 the vacancy of any accommodation is required to be reported and is not reported, or where an order requiring any accommodation to be let or not to be let has been duly passed under sub-section (2) of S. 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof, he may call upon the person in occupation to show cause, within a time to be fixed by him, why be should not be evicted therefrom;Provided that no order under this section shall be passed if the district Magistrate is satisfied that there has been undue delay or it is otherwise inexpedient to do so.The proviso to sub-section (1) of S. 7-A is couched in wide language. The dictionary meaning of the word inexpedient is:"Not expedient; disadvantageous in the circumstances; unadvisable, impolitic.**See Oxford English Dictionary, Illustrated, Vol. 1, 3rd ed., (1964), p. 997.The circumstances that could be taken into consideration to decide whether it is expedient or inexpedient to order an eviction under the section are not mentioned in the proviso. A great deal of discretion must, therefore, be vested in the District Magistrate and in the State Government when disposing a revision from an order passed by the District Magistrate as several factors would enter the making of the verdict whether it is inexpedient to pass an order of eviction under the section. In this case, the State Government has taken into account two reasons for exercising its discretion under the proviso in favour of respondent No. 2:(1) that respondent No. 2 was in possession from 1953 onwards and was conducting a cinema in the premises after obtaining a licence from the District Magistrate under the U. P. Cinema Regulation Act; (2) that the District Magistrate, when granting the licence to conduct the cinema must have been satisfied that the respondent was in lawful occupation of the premises.In other words, what in substance the State Government said was, that respondent No. 2 has been using the premises for conducting cinema from 1953 on the basis of his possession of the premises and that it would be inexpedient to evict him at this stage. We cannot say that the circumstances taken into account are irrelevant for the exercise of the discretion.7. Mr. Gupta, appearing for the appellants, said that when the Additional District Magistrate passed the order for release on the basis that the appellants required the premises bona fide for their personal occupation, the State Government, in the exercise of its revisional jurisdiction under Section 7-F against the order of eviction under Sec. 7-A should not have nullified the effect of the order of release by exercising its discretion under the proviso to Section 7-A against the appellants. He also said that the State Government did not even refer to the order for release which would show that it made no assessment of the hardship to the landlords.8. The fact that an order for release was passed by the Additional District Magistrate on the basis that the premises were bona fide required by the appellants for their personal occupation did not preclude him, when he was moved by the appellants to evict respondent No. 2 from exercising his discretion under the proviso to Section 7-A. For it is at that stage that the respondent will have the opportunity to urge the circumstances which make it inexpedient to evict him. In other words, the only relevant question at the time when the order of release was passed was whether the appellants required the premises bona fide for their occupation. The controversy was limited at that stage to that question. The circumstances which would make the passing of an order of eviction inexpedient under Section 7-A could not have been urged at that time by respondent No. 2. So, the inference that the State Government was not aware of the order for release on the ground that the appellants required the premises for their personal occupation could not be made from the fact that the State Government found that it was inexpedient to order the eviction of the second respondent in the exercise of its discretion under the proviso to Section 7-A when disposing of a revision.9.We are not satisfied that the order of the State Government was vitiated by any error of law apparent on the face of the record. As already stated, the considerations which weighed with the State Government in rejecting (sic) (allowing?) the application, namely, the hardship to respondent No. 2 who was conducting a cinema in the premises from 1953 cannot be said to be irrelevant. | 1[ds]8. The fact that an order for release was passed by the Additional District Magistrate on the basis that the premises were bona fide required by the appellants for their personal occupation did not preclude him, when he was moved by the appellants to evict respondent No. 2 from exercising his discretion under the proviso to Section 7-A. For it is at that stage that the respondent will have the opportunity to urge the circumstances which make it inexpedient to evict him. In other words, the only relevant question at the time when the order of release was passed was whether the appellants required the premises bona fide for their occupation. The controversy was limited at that stage to that question. The circumstances which would make the passing of an order of eviction inexpedient under Section 7-A could not have been urged at that time by respondent No. 2. So, the inference that the State Government was not aware of the order for release on the ground that the appellants required the premises for their personal occupation could not be made from the fact that the State Government found that it was inexpedient to order the eviction of the second respondent in the exercise of its discretion under the proviso to Section 7-A when disposing of a revision.9.We are not satisfied that the order of the State Government was vitiated by any error of law apparent on the face of the record. As already stated, the considerations which weighed with the State Government in rejecting (sic) (allowing?) the application, namely, the hardship to respondent No. 2 who was conducting a cinema in the premises from 1953 cannot be said to be irrelevant.Now, the landlord and the tenant cannot, by their agreement, bind the District Magistrate. In spite of the lease, the District Magistrate may treat the accommodation as vacant and evict therefrom the tenant who is in occupation of the accommodation without an allotment order. This is his statutory obligation. But the appellant would be estopped from denying that the respondent is a tenant. The Act makes a distinction between a tenant by virtue of allotment order. In most of the sections of the Act the word tenant alone is used. If the word tenant in Section 3 is concerned as "tenant under an allotment order, then the tenants who have been occupying an accommodation without an allotment order will be deprived of several material privileges conferred upon them by the Act. Having regard to the definition clause and the scheme of the Act, we are of opinion that the respondent is a tenant under Section 3 even though he is occupying the accommodation without an allotment order. It follows that the respondent would get the protection under Section 3 and that the appellants suit was, therefore, liable to be dismissed as it was found that it was instituted without the permission of the District Magistrate.The Act was passed inter alia to prevent the eviction of tenants from their accommodations. The language of Section 3(1) is imperative and it prohibits the institution of the suit without the permission. If any landlord institutes a suit for eviction of the tenant without the permission of the District Magistrate, he commits an offence and is punishable under Section 15 of the Act. The object of Section 3 is to give protection to a tenant from eviction from an accommodation. The policy of the Act seems to be that a responsible authority like the District Magistrate should consider the claim of the landlord and the needs of the tenant before granting permission. There was alarming scarcity of accommodation. The object of legislature in enacting the law was to protect tenants from greedy and grasping landlords, and from their resorting to Court for eviction of tenants without reasonablecan be no doubt that the provision has been enacted for protecting one set of men from another set of men, the one from their situation and condition are liable to be oppressed and imposed upon. Necessitous men are not free men.There can be no doubt about the policy of the law, namely the protection of a weaker class in the community from harassment of frivolous suits.The expression public policy has an entirely different meaning from policy of the law and one much more extensive. Nevertheless, the term public policy is used by the House of Lords itself apparently as synonymous with the policy of the law or the policy of a statute (seeHollinshead v. Hazleton, 1916 AC428). Yet it is clearly so used without intent to repudiate or disregard the distinction so clearly drawn in Egertonv. Brownlow, (1853) 4 HLC 1 at p. 105.It seems clear that the conception of public policy is not only now quite distinct from that of the policy of law but has in fact always been so except is some exceptional instances of confusion which have had no substantial effect on the general course of authority.Public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time.32. If it is variable, if it depends on the welfare of the community at any given time, how are the courts to ascertain it? The judges are more to be trusted as interpreters of the law than as expounders of public policy. However, there is no alternative under our system but to vest this power with judges. The difficulty of discovering what public policy is at any given moment certainly does not absolve the judges from the duty of doing so. In conducting an enquiry, as already stated, judges are not hide bound by precedent. The judges must look beyond the narrow field of past precedents, though this still leaves open the question, in which direction he must cast his gaze. The judges are to base their decision on the opinions of men of world, as distinguished from opinions based on legal learning. In other words, the judges will have to look beyond the jurisprudence and that in so doing, they must consult nor their own personal standards or predilections but those of the dominant opinion at a given moment, or what has been termed customary morality. The judges must consider the social consequences of the rule propounded, especially in the light of the factual evidence available as to its probable results. Of course, it is not to be expected that men of the world are to be subpoenaed as expert witnesses in the trial of every action raising a question of public policy. It is not open to the judges to make a sort of referendum or hear evidence or conduct an inquiry as to the prevailing moral concept. Such an extended extra-judicial enquiry is wholly outside the tradition of courts where the tendency is to trust the judge to be a typical representative of his day and generation. Our law-relies, on the implied insight of the judge on such matters. It is the judges themselves, assisted by the bar,who here represent the highest common factor of public sentiment anddoubt, there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. But this is beside the point. The point is rather that this power must be lodged somewhere and under our Constitution and laws, it has been lodged in the judges and if they have to fulfil their function as judges, it could hardly be lodged elsewhere.We think that Section 3 is based on public policy. As we said, it is intended to protect a weaker section of the community with a view to ultimately protecting the interest of the community in general by creating equtiality of bargaining power. Although the section is primarily intended for the protection of tenants only, that protection is based on public policy. The respondent could not have waived the benefit of the provision. | 1 | 1,663 | 1,444 | ### Instruction:
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that respondent No. 2 was in lawful occupation and that, in these circumstances, he was entitled to the benefit of the proviso to Section 7-A (1) of the Act and was not liable to be evicted from the premises.3. It was to quash this order that the appellants filed the writ petition before the High Court.4. A learned Single Judge of the Court quashed the order. Respondent No. 2 filed an appeal against the order The Division Bench reversed the order of the learned Single Judge. It is against this order that this appeal has been filed on the basis of a certificate granted under Article 133 (1) (b) of the Constitution.5. The Division Bench was of the view that the learned Single Judge was not justified in interfering with the order passed by the State Government under Section 7-F of the act inasmuch as the order of the State Government did not suffer from any infirmity either on the ground that it has no jurisdiction to pass the order or for the reason that there was an error of law apparent on the face of the record.6. The material provision in Section 7-A of the Act provides:"S.7-A. District Magistrates power to take action against unauthorised occupation- (1) Where in pursuance of an order of the District Magistrate under sub-section (2) of S. 7 the vacancy of any accommodation is required to be reported and is not reported, or where an order requiring any accommodation to be let or not to be let has been duly passed under sub-section (2) of S. 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof, he may call upon the person in occupation to show cause, within a time to be fixed by him, why be should not be evicted therefrom;Provided that no order under this section shall be passed if the district Magistrate is satisfied that there has been undue delay or it is otherwise inexpedient to do so.The proviso to sub-section (1) of S. 7-A is couched in wide language. The dictionary meaning of the word inexpedient is:"Not expedient; disadvantageous in the circumstances; unadvisable, impolitic.**See Oxford English Dictionary, Illustrated, Vol. 1, 3rd ed., (1964), p. 997.The circumstances that could be taken into consideration to decide whether it is expedient or inexpedient to order an eviction under the section are not mentioned in the proviso. A great deal of discretion must, therefore, be vested in the District Magistrate and in the State Government when disposing a revision from an order passed by the District Magistrate as several factors would enter the making of the verdict whether it is inexpedient to pass an order of eviction under the section. In this case, the State Government has taken into account two reasons for exercising its discretion under the proviso in favour of respondent No. 2:(1) that respondent No. 2 was in possession from 1953 onwards and was conducting a cinema in the premises after obtaining a licence from the District Magistrate under the U. P. Cinema Regulation Act; (2) that the District Magistrate, when granting the licence to conduct the cinema must have been satisfied that the respondent was in lawful occupation of the premises.In other words, what in substance the State Government said was, that respondent No. 2 has been using the premises for conducting cinema from 1953 on the basis of his possession of the premises and that it would be inexpedient to evict him at this stage. We cannot say that the circumstances taken into account are irrelevant for the exercise of the discretion.7. Mr. Gupta, appearing for the appellants, said that when the Additional District Magistrate passed the order for release on the basis that the appellants required the premises bona fide for their personal occupation, the State Government, in the exercise of its revisional jurisdiction under Section 7-F against the order of eviction under Sec. 7-A should not have nullified the effect of the order of release by exercising its discretion under the proviso to Section 7-A against the appellants. He also said that the State Government did not even refer to the order for release which would show that it made no assessment of the hardship to the landlords.8. The fact that an order for release was passed by the Additional District Magistrate on the basis that the premises were bona fide required by the appellants for their personal occupation did not preclude him, when he was moved by the appellants to evict respondent No. 2 from exercising his discretion under the proviso to Section 7-A. For it is at that stage that the respondent will have the opportunity to urge the circumstances which make it inexpedient to evict him. In other words, the only relevant question at the time when the order of release was passed was whether the appellants required the premises bona fide for their occupation. The controversy was limited at that stage to that question. The circumstances which would make the passing of an order of eviction inexpedient under Section 7-A could not have been urged at that time by respondent No. 2. So, the inference that the State Government was not aware of the order for release on the ground that the appellants required the premises for their personal occupation could not be made from the fact that the State Government found that it was inexpedient to order the eviction of the second respondent in the exercise of its discretion under the proviso to Section 7-A when disposing of a revision.9.We are not satisfied that the order of the State Government was vitiated by any error of law apparent on the face of the record. As already stated, the considerations which weighed with the State Government in rejecting (sic) (allowing?) the application, namely, the hardship to respondent No. 2 who was conducting a cinema in the premises from 1953 cannot be said to be irrelevant.
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appellant would be estopped from denying that the respondent is a tenant. The Act makes a distinction between a tenant by virtue of allotment order. In most of the sections of the Act the word tenant alone is used. If the word tenant in Section 3 is concerned as "tenant under an allotment order, then the tenants who have been occupying an accommodation without an allotment order will be deprived of several material privileges conferred upon them by the Act. Having regard to the definition clause and the scheme of the Act, we are of opinion that the respondent is a tenant under Section 3 even though he is occupying the accommodation without an allotment order. It follows that the respondent would get the protection under Section 3 and that the appellants suit was, therefore, liable to be dismissed as it was found that it was instituted without the permission of the District Magistrate.The Act was passed inter alia to prevent the eviction of tenants from their accommodations. The language of Section 3(1) is imperative and it prohibits the institution of the suit without the permission. If any landlord institutes a suit for eviction of the tenant without the permission of the District Magistrate, he commits an offence and is punishable under Section 15 of the Act. The object of Section 3 is to give protection to a tenant from eviction from an accommodation. The policy of the Act seems to be that a responsible authority like the District Magistrate should consider the claim of the landlord and the needs of the tenant before granting permission. There was alarming scarcity of accommodation. The object of legislature in enacting the law was to protect tenants from greedy and grasping landlords, and from their resorting to Court for eviction of tenants without reasonablecan be no doubt that the provision has been enacted for protecting one set of men from another set of men, the one from their situation and condition are liable to be oppressed and imposed upon. Necessitous men are not free men.There can be no doubt about the policy of the law, namely the protection of a weaker class in the community from harassment of frivolous suits.The expression public policy has an entirely different meaning from policy of the law and one much more extensive. Nevertheless, the term public policy is used by the House of Lords itself apparently as synonymous with the policy of the law or the policy of a statute (seeHollinshead v. Hazleton, 1916 AC428). Yet it is clearly so used without intent to repudiate or disregard the distinction so clearly drawn in Egertonv. Brownlow, (1853) 4 HLC 1 at p. 105.It seems clear that the conception of public policy is not only now quite distinct from that of the policy of law but has in fact always been so except is some exceptional instances of confusion which have had no substantial effect on the general course of authority.Public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time.32. If it is variable, if it depends on the welfare of the community at any given time, how are the courts to ascertain it? The judges are more to be trusted as interpreters of the law than as expounders of public policy. However, there is no alternative under our system but to vest this power with judges. The difficulty of discovering what public policy is at any given moment certainly does not absolve the judges from the duty of doing so. In conducting an enquiry, as already stated, judges are not hide bound by precedent. The judges must look beyond the narrow field of past precedents, though this still leaves open the question, in which direction he must cast his gaze. The judges are to base their decision on the opinions of men of world, as distinguished from opinions based on legal learning. In other words, the judges will have to look beyond the jurisprudence and that in so doing, they must consult nor their own personal standards or predilections but those of the dominant opinion at a given moment, or what has been termed customary morality. The judges must consider the social consequences of the rule propounded, especially in the light of the factual evidence available as to its probable results. Of course, it is not to be expected that men of the world are to be subpoenaed as expert witnesses in the trial of every action raising a question of public policy. It is not open to the judges to make a sort of referendum or hear evidence or conduct an inquiry as to the prevailing moral concept. Such an extended extra-judicial enquiry is wholly outside the tradition of courts where the tendency is to trust the judge to be a typical representative of his day and generation. Our law-relies, on the implied insight of the judge on such matters. It is the judges themselves, assisted by the bar,who here represent the highest common factor of public sentiment anddoubt, there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. But this is beside the point. The point is rather that this power must be lodged somewhere and under our Constitution and laws, it has been lodged in the judges and if they have to fulfil their function as judges, it could hardly be lodged elsewhere.We think that Section 3 is based on public policy. As we said, it is intended to protect a weaker section of the community with a view to ultimately protecting the interest of the community in general by creating equtiality of bargaining power. Although the section is primarily intended for the protection of tenants only, that protection is based on public policy. The respondent could not have waived the benefit of the provision.
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Ganga Devi Vs. Ram Saran & Another | Hegde, J.1. These are appeals by special leave. The appellant Ganga Devi is the defendant in both these appeals. The suit was for partition. The genealogy of the family is as under :Lalta Prasad son of Bal Gobind and Rajinder Bahadur son of Ram Bharose were the co-owners of the suit property. On the death of Lalta Prasad on December 26, 1948, his widow Chhabili Kuer succeeded to his share. After the death of Lalta Prasad and Rajendra Bahadur, Chhabili Kuer and Ganga Devi were in possession of the suit properties as co-owners. They were the zamindars of the land. Their zamindari rights were abolished by U. P. Act 1 of 1951 (to be hereinafter referred to as the Act). Thereafter, the title to the suit properties vested in the State of U. P., but in view of Section 18 of that Act the persons who were in possession of the land which vested in the Government became bhumidhars. Prima facie Chhabili Kuer and Ganga Devi became co-bhumidhars, in view of Section 18 of the Act. After the death of Chhabili Kuer, Ganga Devi applied for change of mutation exclusively in her favour and the mutation was effected in her favour in March, 1951. The present suits were brought in 1958.2. The only contention taken before the Courts below as well as before the High Court was that the suits in question came within the scope of Section 209 of the Act and hence they were barred by limitation under the provision of the Act. The trial Court as well as the first appellate Court accepted that contention and dismissed the suit but the High Court differing from the view taken by those Courts decreed the plaintiffs suits for partition. The only question that arises for our decision at present is whether the aforementioned Section 209 as well as Section 210 of the Act are applicable to the facts of the present cases. If they are applicable the suits are admittedly barred by limitation. The marginal note to Section 209 speaks of ejectment of persons occupying land without title. That note indicates that Section deals with suits for ejectment of trespassers. The section reads :"209. Ejectment of persons occupying land without title. - (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and -(a) Where the land forms part of the holding of a bhumidhar, sirdar or asami without the consent of such bhumidhar, sirdar or asami.(b) Where the land does not form part of the holding of a bhumidhar, sirdar or asami without consent of Gaon Sabha, shall be liable to ejectment on the suit in cases referred to in Clause (a) above, of the bhumidhar, sirdar or asami concerned, and in cases referred to in clause (b) above, of the Gaon Sabha.........and shall also be liable to pay damages.(2) To every suit relating to a land referred to in Clause (a) of Sub-section (1) State Government shall be impleaded as a necessary party."Section 210 reads :"210. Failure to file suit under Section 209 or to execute decree obtained thereunder. - If a suit is not brought under Section 209 or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall -(i) where the land forms part of the holding of a bhumidhar, or sirdar, become a sirdar thereof and the rights and interest of an asami, if any, on such land shall be extinguished.(ii) where the land forms part of the holding of an asami on behalf of the Gaon Sabha become an asami holding from year to year,(iii) in any case to which the provisions of Clause (b) of Section 209 apply, become a sirdar or asami holding from year to year as if he had been admitted to possession of the land by the Gaon Sabha."3. On a reading of these two sections, it is clear that they relate to suits for ejectment and not to suits for partition for which provision is made under Section 176 of the Act. For suits for ejectment under Section 209 a limitation of three years is prescribed. No period of limitation is prescribed under that Act for a suit for partition. The suits with which we are concerned are suits for partition. Therefore, neither Section 209 nor Section 210 is applicable to these suits. That was the conclusion reached by the High Court. We are entirely in agreement with that conclusion.4. In this Court an attempt was made by Mr. G. N. Dixit, learned counsel for the defendant, to show that the plaintiffs have no title to the suit property in view of Section 15 of the Act. No such contention appears to have been taken either in the pleading or before the trial Court or the appellate Court or the High Court. To decide that contention, it is necessary to decide certain questions of fact. Hence, we have not permitted him to take that contention. | 0[ds]y question that arises for our decision at present is whether the aforementioned Section 209 as well as Section 210 of the Act are applicable to the facts of the present cases.If they are applicable the suits are admittedly barred by limitation. The marginal note to Section 209 speaks of ejectment of persons occupying land without title. That note indicates that Section deals with suits for ejectment of trespassers.On a reading of these two sections, it is clear that they relate to suits for ejectment and not to suits for partition for which provision is made under Section 176 of the Act. For suits for ejectment under Section 209 a limitation of three years is prescribed. No period of limitation is prescribed under that Act for a suit for partition. The suits with which we are concerned are suits for partition. Therefore, neither Section 209 nor Section 210 is applicable to these suits. That was the conclusion reached by the High Court. We are entirely in agreement with that conclusion.4. In this Court an attempt was made by Mr. G. N. Dixit, learned counsel for the defendant, to show that the plaintiffs have no title to the suit property in view of Section 15 of the Act. No such contention appears to have been taken either in the pleading or before the trial Court or the appellate Court or the High Court. To decide that contention, it is necessary to decide certain questions of fact. Hence, we have not permitted him to take that contention. | 0 | 971 | 278 | ### 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:
Hegde, J.1. These are appeals by special leave. The appellant Ganga Devi is the defendant in both these appeals. The suit was for partition. The genealogy of the family is as under :Lalta Prasad son of Bal Gobind and Rajinder Bahadur son of Ram Bharose were the co-owners of the suit property. On the death of Lalta Prasad on December 26, 1948, his widow Chhabili Kuer succeeded to his share. After the death of Lalta Prasad and Rajendra Bahadur, Chhabili Kuer and Ganga Devi were in possession of the suit properties as co-owners. They were the zamindars of the land. Their zamindari rights were abolished by U. P. Act 1 of 1951 (to be hereinafter referred to as the Act). Thereafter, the title to the suit properties vested in the State of U. P., but in view of Section 18 of that Act the persons who were in possession of the land which vested in the Government became bhumidhars. Prima facie Chhabili Kuer and Ganga Devi became co-bhumidhars, in view of Section 18 of the Act. After the death of Chhabili Kuer, Ganga Devi applied for change of mutation exclusively in her favour and the mutation was effected in her favour in March, 1951. The present suits were brought in 1958.2. The only contention taken before the Courts below as well as before the High Court was that the suits in question came within the scope of Section 209 of the Act and hence they were barred by limitation under the provision of the Act. The trial Court as well as the first appellate Court accepted that contention and dismissed the suit but the High Court differing from the view taken by those Courts decreed the plaintiffs suits for partition. The only question that arises for our decision at present is whether the aforementioned Section 209 as well as Section 210 of the Act are applicable to the facts of the present cases. If they are applicable the suits are admittedly barred by limitation. The marginal note to Section 209 speaks of ejectment of persons occupying land without title. That note indicates that Section deals with suits for ejectment of trespassers. The section reads :"209. Ejectment of persons occupying land without title. - (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and -(a) Where the land forms part of the holding of a bhumidhar, sirdar or asami without the consent of such bhumidhar, sirdar or asami.(b) Where the land does not form part of the holding of a bhumidhar, sirdar or asami without consent of Gaon Sabha, shall be liable to ejectment on the suit in cases referred to in Clause (a) above, of the bhumidhar, sirdar or asami concerned, and in cases referred to in clause (b) above, of the Gaon Sabha.........and shall also be liable to pay damages.(2) To every suit relating to a land referred to in Clause (a) of Sub-section (1) State Government shall be impleaded as a necessary party."Section 210 reads :"210. Failure to file suit under Section 209 or to execute decree obtained thereunder. - If a suit is not brought under Section 209 or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall -(i) where the land forms part of the holding of a bhumidhar, or sirdar, become a sirdar thereof and the rights and interest of an asami, if any, on such land shall be extinguished.(ii) where the land forms part of the holding of an asami on behalf of the Gaon Sabha become an asami holding from year to year,(iii) in any case to which the provisions of Clause (b) of Section 209 apply, become a sirdar or asami holding from year to year as if he had been admitted to possession of the land by the Gaon Sabha."3. On a reading of these two sections, it is clear that they relate to suits for ejectment and not to suits for partition for which provision is made under Section 176 of the Act. For suits for ejectment under Section 209 a limitation of three years is prescribed. No period of limitation is prescribed under that Act for a suit for partition. The suits with which we are concerned are suits for partition. Therefore, neither Section 209 nor Section 210 is applicable to these suits. That was the conclusion reached by the High Court. We are entirely in agreement with that conclusion.4. In this Court an attempt was made by Mr. G. N. Dixit, learned counsel for the defendant, to show that the plaintiffs have no title to the suit property in view of Section 15 of the Act. No such contention appears to have been taken either in the pleading or before the trial Court or the appellate Court or the High Court. To decide that contention, it is necessary to decide certain questions of fact. Hence, we have not permitted him to take that contention.
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y question that arises for our decision at present is whether the aforementioned Section 209 as well as Section 210 of the Act are applicable to the facts of the present cases.If they are applicable the suits are admittedly barred by limitation. The marginal note to Section 209 speaks of ejectment of persons occupying land without title. That note indicates that Section deals with suits for ejectment of trespassers.On a reading of these two sections, it is clear that they relate to suits for ejectment and not to suits for partition for which provision is made under Section 176 of the Act. For suits for ejectment under Section 209 a limitation of three years is prescribed. No period of limitation is prescribed under that Act for a suit for partition. The suits with which we are concerned are suits for partition. Therefore, neither Section 209 nor Section 210 is applicable to these suits. That was the conclusion reached by the High Court. We are entirely in agreement with that conclusion.4. In this Court an attempt was made by Mr. G. N. Dixit, learned counsel for the defendant, to show that the plaintiffs have no title to the suit property in view of Section 15 of the Act. No such contention appears to have been taken either in the pleading or before the trial Court or the appellate Court or the High Court. To decide that contention, it is necessary to decide certain questions of fact. Hence, we have not permitted him to take that contention.
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M/S Guzdar Kajora Coal-Mines Ltd. Calcutta Vs. The Commissioner Of Income Tax, Calcutta | referred. On the case as put before the Appellate Tribunal and the High Court and the question referred with regard to the two assessment years in question we are unable to see any error or infirmity that would justify interference by us in these appeals.10. It has been strenuously urged on behalf of the assessee that since the decision of the Tribunal or the High Court could not operate as res judicature for other assessment years with regard to which assessments are still pending, the assessee would be entitled to raise all the points which are relevant with regard to the question of valuation for the purpose of deterring depreciation. We have been pressed to indicate broadly the principles for future guidance as it will be open to the assessee to raise all the points relevant for the purpose of determination of the amount of depreciation allowance in the assessments which are still pending and have not been finally disposed of.11. Section 10 (2) (vi) of the Act to the extent it is material is as follows : -"(2) Such profits or gains shall be computed after making the following allowances, namely: -(vi) in respect of depreciation of such buildings machinery, plant or furniture being the property of the assessee, a sum equivalent where the assets are ships other than ships ordinarily plying on inland waters, to such percentage on the original cost thereof to the assessee as may in any case or class of cases be prescribed and in any other case, to such percentage on the written down value thereof as may in any case or class of cases be prescribed;..................Provided that-(a) ...............(b) ...............(c) The aggregate of all allowance in respect of depreciation made under this clause and clause (vi-a) or under any Act repealed hereby, or under the Indian Income-tax Act, 1886 (II of 1886), shall in no case exceed the original cost to the assessee of the buildings, machinery, plant or furniture, as the case may be".Keeping in view sub-section (5) of Section 10 of the Act the original actual cost to the assessee of the asset with regard to which depreciation allowance is claimed has to be ascertained for the purpose inter alia of finding out the written down value in case of assets other than ocean going ships. For the purpose of getting the benefit of clause (c) of the proviso to sub-section (2) (vi) also the original cost has also to be ascertained. The Privy Council laid down in Commr. of Income-tax, Madras v. The Buckingham and Carnatic Co. Ltd., Madras, (1935) ITR 384 (Mad) thatthe word "assessee" in Section 10 (2) (vi) of the Act refers to the person who owns the assets and who is being assessed and depreciation allowance has to be based on the original cost of such property to such person. This principle was laid down in a case where the assessee had acquired the business of another assessee and it was emphasised that the original cost to be considered was the original cost to the person who was being actually assessed and not the original cost of those assets to the previous owner of the business. Reference was made to the above decision of the Privy Council in the judgment of this Court in Jogta Coal Co. Ltd. v. Commr. of Income-tax, West Bengal, 36 ITR 521 = (AIR 1959 SC 1232 ) and it was observed :"We do not think that there is any doubt on the wording of the section or on the interpretation that has been put upon those words that the cost to be calculated for the purpose of depreciation allowance is the cost to the assessee and not to the person who makes the sale.........."Now the original cost of a particular asset is a question of fact which has to be determined on the evidence or the material produced before or available to the Income-tax authorities. Any document or formal deed mentioning the consideration or the cost paid for the purchase of an asset by an assessee would be a piece of evidence and prima facie the statements or figures given therein would show how much the cost of the asset to the assessee is. But if circumstances exist showing that a fictitious price has been put on the asset or there is fraud or collusion between the vendor and the vendee and that there has been inflation or deflation of value for ulterior purposes it is open to the Income-tax authorities to refuse to accept the price mentioned in the deed or alleged by the assessee and to ascertain what the actual original cost was: See Pindi Kashmir Transport Co. Ltd. v. Commr. of Income-tax, Lahore, (1954) 26 ITR 595 (Lah) and Kalooram Govindram v. Commr. of Income-tax, Madhya Pradesh, Nagpur and Bhandara, 57 ITR 335 = (AIR 1966 SC 4 ).In this view of the matter it is open to the Income-tax authorities to determine and to the assessee to show whether the good-will of the business is or is not included in the consideration or the price paid for the acquisition of the asset. In other words even if it is not expressly mentioned that good-will has been sold it can be shown and ascertained by evidence whether the same has been purchased or not by the assessee. The expression "good-will" has been considered and explained by this Court in S. C. Cambatta and Co. P. Ltdv. Commr. Excess Profits Tax, Bombay, 41 ITR 500 = (AIR 1961 SC 1010 ) and nothing more need be said about it. The principles stated by us are by no means exhaustive and are mainly illustrative.12. Keeping in view the facts of the present case we may make it clear that if circumstances exist for going behind the valuation as also the allocation given in the deed of conveyance it was and is open to the Income-tax authorities to determine the valuation as well as the allocation between depreciable and non-depreciable assets. | 0[ds]9. Learned counsel for the assessee has assailed the decision of the High Court on a number of grounds. It has been urged inter alia that the High Court had not kept in view the general and well established principle that the statement with regard to valuation contained in a formal document should be prima facie accepted ascorrect. There can be no justification, it has been pointed out, for any court or Tribunal "to rip up a transaction not impeached as dishonest and not proved to be such, merely because the company may have paid an extravagant price for their property". A great deal of emphasis has been laid on behalf of the assessee on the report submitted by the experts justifying the valuation given in the deed of conveyance. In the absence of fraud, collusion, inflation or false transaction made with an ulterior purpose the Income tax authorities, it is said, were precluded from going behind the agreement of purchase in determining the purchase price fixing their own valuation. Theother point canvassed on behalf of the assessee is thats not included in the valuation given in the deed of conveyance nor was it ever intended that anygoodwill of thebusiness should be sold by the vendor company.This contention, however, appears to run counter to what was argued before the High Court and the Tribunal nor can it be said to be covered by the question which was referred. On the case as put before the Appellate Tribunal and the High Court and the question referred with regard to the two assessment years in question we are unable to see any error or infirmity that would justify interference by us in these appeals.10.It has been strenuously urged on behalf of the assessee that since the decision of the Tribunal or the High Court could not operate as res judicature for other assessment years with regard to which assessments are still pending, the assessee would be entitled to raise all the points which are relevant with regard to the question of valuation for the purpose of deterring depreciation.We have been pressed to indicate broadly the principles for future guidance as it will be open to the assessee to raise all the points relevant for the purpose of determination of the amount of depreciation allowance in the assessments which are still pending and have not been finally disposedion (5) of Section 10 of the Act the original actual cost to the assessee of the asset with regard to which depreciation allowance is claimed has to be ascertained for the purpose inter alia of finding out the written down value in case of assets other than ocean going ships. For the purpose of getting the benefit of clause (c) of the proviso to(2) (vi) also the original cost has also to be ascertained. The Privy Council laid down in Commr. ofMadras v. The Buckingham and Carnatic Co. Ltd., Madras, (1935) ITR 384 (Mad) thatthe word "assessee" in Section 10 (2) (vi) of the Act refers to the person who owns the assets and who is being assessed and depreciation allowance has to be based on the original cost of such property to such person. This principle was laid down in a case where the assessee had acquired the business of another assessee and it was emphasised that the original cost to be considered was the original cost to the person who was being actually assessed and not the original cost of those assets to the previous owner of the business. Reference was made to the above decision of the Privy Council in the judgment of this Court in Jogta Coal Co. Ltd. v. Commr. ofWest Bengal, 36 ITR 521 = (AIR 1959 SC 1232 ) and it was observed :"We do not think that there is any doubt on the wording of the section or on the interpretation that has been put upon those words that the cost to be calculated for the purpose of depreciation allowance is the cost to the assessee and not to the person who makes the sale.........."Now the original cost of a particular asset is a question of fact which has to be determined on the evidence or the material produced before or available to theauthorities. Any document or formal deed mentioning the consideration or the cost paid for the purchase of an asset by an assessee would be a piece of evidence and prima facie the statements or figures given therein would show how much the cost of the asset to the assessee is. But if circumstances exist showing that a fictitious price has been put on the asset or there is fraud or collusion between the vendor and the vendee and that there has been inflation or deflation of value for ulterior purposes it is open to theauthorities to refuse to accept the price mentioned in the deed or alleged by the assessee and to ascertain what the actual original cost was: See Pindi Kashmir Transport Co. Ltd. v. Commr. ofLahore, (1954) 26 ITR 595 (Lah) and Kalooram Govindram v. Commr. ofMadhya Pradesh, Nagpur and Bhandara, 57 ITR 335 = (AIR 1966 SC 4 ).In this view of the matter it is open to theauthorities to determine and to the assessee to show whether thegoodwill of thebusiness is or is not included in the consideration or the price paid for the acquisition of the asset. In other words even if it is not expressly mentioned thathas been sold it can be shown and ascertained by evidence whether the same has been purchased or not by the assessee. The expressionhas been considered and explained by this Court in S. C. Cambatta and Co. P. Ltdv. Commr. Excess Profits Tax, Bombay, 41 ITR 500 = (AIR 1961 SC 1010 ) and nothing more need be said about it. The principles stated by us are by no means exhaustive and are mainly illustrative.12. Keeping in view the facts of the present case we may make it clear that if circumstances exist for going behind the valuation as also the allocation given in the deed of conveyance it was and is open to theauthorities to determine the valuation as well as the allocation between depreciable and | 0 | 2,882 | 1,115 | ### 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:
referred. On the case as put before the Appellate Tribunal and the High Court and the question referred with regard to the two assessment years in question we are unable to see any error or infirmity that would justify interference by us in these appeals.10. It has been strenuously urged on behalf of the assessee that since the decision of the Tribunal or the High Court could not operate as res judicature for other assessment years with regard to which assessments are still pending, the assessee would be entitled to raise all the points which are relevant with regard to the question of valuation for the purpose of deterring depreciation. We have been pressed to indicate broadly the principles for future guidance as it will be open to the assessee to raise all the points relevant for the purpose of determination of the amount of depreciation allowance in the assessments which are still pending and have not been finally disposed of.11. Section 10 (2) (vi) of the Act to the extent it is material is as follows : -"(2) Such profits or gains shall be computed after making the following allowances, namely: -(vi) in respect of depreciation of such buildings machinery, plant or furniture being the property of the assessee, a sum equivalent where the assets are ships other than ships ordinarily plying on inland waters, to such percentage on the original cost thereof to the assessee as may in any case or class of cases be prescribed and in any other case, to such percentage on the written down value thereof as may in any case or class of cases be prescribed;..................Provided that-(a) ...............(b) ...............(c) The aggregate of all allowance in respect of depreciation made under this clause and clause (vi-a) or under any Act repealed hereby, or under the Indian Income-tax Act, 1886 (II of 1886), shall in no case exceed the original cost to the assessee of the buildings, machinery, plant or furniture, as the case may be".Keeping in view sub-section (5) of Section 10 of the Act the original actual cost to the assessee of the asset with regard to which depreciation allowance is claimed has to be ascertained for the purpose inter alia of finding out the written down value in case of assets other than ocean going ships. For the purpose of getting the benefit of clause (c) of the proviso to sub-section (2) (vi) also the original cost has also to be ascertained. The Privy Council laid down in Commr. of Income-tax, Madras v. The Buckingham and Carnatic Co. Ltd., Madras, (1935) ITR 384 (Mad) thatthe word "assessee" in Section 10 (2) (vi) of the Act refers to the person who owns the assets and who is being assessed and depreciation allowance has to be based on the original cost of such property to such person. This principle was laid down in a case where the assessee had acquired the business of another assessee and it was emphasised that the original cost to be considered was the original cost to the person who was being actually assessed and not the original cost of those assets to the previous owner of the business. Reference was made to the above decision of the Privy Council in the judgment of this Court in Jogta Coal Co. Ltd. v. Commr. of Income-tax, West Bengal, 36 ITR 521 = (AIR 1959 SC 1232 ) and it was observed :"We do not think that there is any doubt on the wording of the section or on the interpretation that has been put upon those words that the cost to be calculated for the purpose of depreciation allowance is the cost to the assessee and not to the person who makes the sale.........."Now the original cost of a particular asset is a question of fact which has to be determined on the evidence or the material produced before or available to the Income-tax authorities. Any document or formal deed mentioning the consideration or the cost paid for the purchase of an asset by an assessee would be a piece of evidence and prima facie the statements or figures given therein would show how much the cost of the asset to the assessee is. But if circumstances exist showing that a fictitious price has been put on the asset or there is fraud or collusion between the vendor and the vendee and that there has been inflation or deflation of value for ulterior purposes it is open to the Income-tax authorities to refuse to accept the price mentioned in the deed or alleged by the assessee and to ascertain what the actual original cost was: See Pindi Kashmir Transport Co. Ltd. v. Commr. of Income-tax, Lahore, (1954) 26 ITR 595 (Lah) and Kalooram Govindram v. Commr. of Income-tax, Madhya Pradesh, Nagpur and Bhandara, 57 ITR 335 = (AIR 1966 SC 4 ).In this view of the matter it is open to the Income-tax authorities to determine and to the assessee to show whether the good-will of the business is or is not included in the consideration or the price paid for the acquisition of the asset. In other words even if it is not expressly mentioned that good-will has been sold it can be shown and ascertained by evidence whether the same has been purchased or not by the assessee. The expression "good-will" has been considered and explained by this Court in S. C. Cambatta and Co. P. Ltdv. Commr. Excess Profits Tax, Bombay, 41 ITR 500 = (AIR 1961 SC 1010 ) and nothing more need be said about it. The principles stated by us are by no means exhaustive and are mainly illustrative.12. Keeping in view the facts of the present case we may make it clear that if circumstances exist for going behind the valuation as also the allocation given in the deed of conveyance it was and is open to the Income-tax authorities to determine the valuation as well as the allocation between depreciable and non-depreciable assets.
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regard to valuation contained in a formal document should be prima facie accepted ascorrect. There can be no justification, it has been pointed out, for any court or Tribunal "to rip up a transaction not impeached as dishonest and not proved to be such, merely because the company may have paid an extravagant price for their property". A great deal of emphasis has been laid on behalf of the assessee on the report submitted by the experts justifying the valuation given in the deed of conveyance. In the absence of fraud, collusion, inflation or false transaction made with an ulterior purpose the Income tax authorities, it is said, were precluded from going behind the agreement of purchase in determining the purchase price fixing their own valuation. Theother point canvassed on behalf of the assessee is thats not included in the valuation given in the deed of conveyance nor was it ever intended that anygoodwill of thebusiness should be sold by the vendor company.This contention, however, appears to run counter to what was argued before the High Court and the Tribunal nor can it be said to be covered by the question which was referred. On the case as put before the Appellate Tribunal and the High Court and the question referred with regard to the two assessment years in question we are unable to see any error or infirmity that would justify interference by us in these appeals.10.It has been strenuously urged on behalf of the assessee that since the decision of the Tribunal or the High Court could not operate as res judicature for other assessment years with regard to which assessments are still pending, the assessee would be entitled to raise all the points which are relevant with regard to the question of valuation for the purpose of deterring depreciation.We have been pressed to indicate broadly the principles for future guidance as it will be open to the assessee to raise all the points relevant for the purpose of determination of the amount of depreciation allowance in the assessments which are still pending and have not been finally disposedion (5) of Section 10 of the Act the original actual cost to the assessee of the asset with regard to which depreciation allowance is claimed has to be ascertained for the purpose inter alia of finding out the written down value in case of assets other than ocean going ships. For the purpose of getting the benefit of clause (c) of the proviso to(2) (vi) also the original cost has also to be ascertained. The Privy Council laid down in Commr. ofMadras v. The Buckingham and Carnatic Co. Ltd., Madras, (1935) ITR 384 (Mad) thatthe word "assessee" in Section 10 (2) (vi) of the Act refers to the person who owns the assets and who is being assessed and depreciation allowance has to be based on the original cost of such property to such person. This principle was laid down in a case where the assessee had acquired the business of another assessee and it was emphasised that the original cost to be considered was the original cost to the person who was being actually assessed and not the original cost of those assets to the previous owner of the business. Reference was made to the above decision of the Privy Council in the judgment of this Court in Jogta Coal Co. Ltd. v. Commr. ofWest Bengal, 36 ITR 521 = (AIR 1959 SC 1232 ) and it was observed :"We do not think that there is any doubt on the wording of the section or on the interpretation that has been put upon those words that the cost to be calculated for the purpose of depreciation allowance is the cost to the assessee and not to the person who makes the sale.........."Now the original cost of a particular asset is a question of fact which has to be determined on the evidence or the material produced before or available to theauthorities. Any document or formal deed mentioning the consideration or the cost paid for the purchase of an asset by an assessee would be a piece of evidence and prima facie the statements or figures given therein would show how much the cost of the asset to the assessee is. But if circumstances exist showing that a fictitious price has been put on the asset or there is fraud or collusion between the vendor and the vendee and that there has been inflation or deflation of value for ulterior purposes it is open to theauthorities to refuse to accept the price mentioned in the deed or alleged by the assessee and to ascertain what the actual original cost was: See Pindi Kashmir Transport Co. Ltd. v. Commr. ofLahore, (1954) 26 ITR 595 (Lah) and Kalooram Govindram v. Commr. ofMadhya Pradesh, Nagpur and Bhandara, 57 ITR 335 = (AIR 1966 SC 4 ).In this view of the matter it is open to theauthorities to determine and to the assessee to show whether thegoodwill of thebusiness is or is not included in the consideration or the price paid for the acquisition of the asset. In other words even if it is not expressly mentioned thathas been sold it can be shown and ascertained by evidence whether the same has been purchased or not by the assessee. The expressionhas been considered and explained by this Court in S. C. Cambatta and Co. P. Ltdv. Commr. Excess Profits Tax, Bombay, 41 ITR 500 = (AIR 1961 SC 1010 ) and nothing more need be said about it. The principles stated by us are by no means exhaustive and are mainly illustrative.12. Keeping in view the facts of the present case we may make it clear that if circumstances exist for going behind the valuation as also the allocation given in the deed of conveyance it was and is open to theauthorities to determine the valuation as well as the allocation between depreciable and
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Dwarka Prasad Vs. Dwarka Das Saraf | from the land and building, to the machinery and equipments etc., and whether there was any provision in the deed relating to them, he confessed that there was no specific provision in the deed. Obviously they cannot be governed by Madras Act XV of 1946 and so he said they must be governed by the general law of contract. He also conceded that if the lessees paid Rupees 1600/- but defaulted in the payment of the balance which is due as hire, the lessors have no right to ask for eviction under the Rent Control Act. We think that the attempted division of the lease and separation of rights in regard to two classes of property is in the highest degree artificial, never contemplated by the parties. Here is a lease of a talkie house with everything that is necessary to run cinema shows. To split up such a composite lease as this into separate contracts of lease and hire is to destroy it altogether. Mr. Ramachandra Iyer argued that the furniture which was covered by the lease fell within the definition of Section 2 of the Act. We do not agree. The observations of the learned Judges in App. No. 590 of 1945 (Patanjali Sastri and Bell JJ.) in dealing with the plant, machinery and other moveables which were demised along with a factory are very apposite in this connection: No doubt in one sense the buildings comprised in the lease deed contain articles supplied by the landlord; but we cannot agree that what was so supplied can be considered in any modern sense as being furniture.Though in that case the learned Judges were dealing with the lease of a factory called the West Coast Match Co., which consisted of land and buildings including a bungalow used for residential purposes together with plant, machinery and moveables contained therein, we think the principle of that decision would apply equally to the case before us in which there is a lease not merely of a building but of a cinema theatre with all necessary equipment for the exhibition of films."23. It is true that in Jaffer Alis case AIR 1971 Andh. Pra 156 (FB) and in Govindans case AIR 1966 Ker 244 (FB) (the Andhra and Kerala decisions referred to above) cinema theatres have been held to fall within the definition of building, under the relevant rent control law of those States. A bare reading of the two cases would show that certain amendments had been made to the parent statutes whereby the definition was expanded and its wide range was made to include all tenancies relating to all structures, even though accessories, furniture and fittings for use in the house were also made over. There is no doubt that the word fittings may take in a projector or other apparatus used for a cinema but it is one thing to say that apparatus is fixed in a building and it is another to say that such fixture or apparatus is for the beneficial enjoyment of the building. Therefore it depends on the words used reflecting the legislative policy of each State Legislature. Indeed in Venkayya v. Venkata Subba Rao, AIR 1957 Andh Pra 619 a Division Bench of the Andhra Pradesh High Court considered whether the lease of a fixture comprising buildings and machinery came within the sweep of the rent control law. The court held that the lease of a running factory, comprising costly machinery intended to be used for manufacture, did not fall within the definition. The question in each case, the learned judges pointed out, would be what is the dominant part of the demise and what the main purpose for which the building was let out is. In Amritlal N. Shah v. Annapurnamma, AIR 1959 Andh Pra 9 the same court held that the lease of a cinema did not come within the purview of Madras Act 25 of 1949. Definitional ramifications need not detain us nor decisions turning on them.24. Shri Tarkunde pressed upon us the decision in Karsandas v. Karsanji, AIR1953 Sau l13 and Karnani Properties Ltd., v. Miss Augustine, AIR 1957 SC 309 . One of them did refer to a cinema theatre with fittings and generators. Certain Calcutta decisions, Kali Prosad v. Jagadish Pada, AIR 1953 Cal 149 and D. S. Jain v. Meghamala Roy, (1964) 68 Cal WN 1136 were also cited before us. In all these cases, the decision turned on the precise language used. We do not see any need to discuss these and the other decisions cited before us because we have explained why the conclusion we have reached is in consonance with the sense, purpose and language of the Act. For the same reason we content ourselves with merely, mentioning that in Harisingh v. Ratanlal 1969 Jab LJ 639 a Division Bench of the Madhya Pradesh High Court held that a fully equipped cinema theatre let out for showing films of a commercial basis, being of a running cinema theatre, fell out of the scope of accommodation on the score that costly fittings, fixtures and equipment could, in no sense, be regarded and meant for the beneficial enjoyment of the building in which the cinema theatre was housed. The primary object and the definitional language used determine the issue.25. Respondents counsel did try to approximate the definition in the Act to that found in the enactments with reference to which decisions in his favour had been rendered. We do not agree. To hair-split is an unhappy interpretative exercise. Here the plain intendment is to encompass leases of buildings only (inclusive of what renders them more congenial) but not of businesses accommodated in buildings nor of premises let out with the predominant purpose of running a business. A lease of a lucrative theatre with expensive cinema equipment, which latter pressed the lessee to go into the transaction, cannot reasonably be reduced into a mere tenancy of a building together with fittings which but make the user more comfortable. | 1[ds]8. Looking at the three problems posed, unaided by the many decisions cited by counsel, we are inclined to the view that a lease of an accommodation must essentially be of a buildingnot a business or industry together with the building which it is situated. Of course, a building which is ordinarily let, be it for residential orpurposes, will not be the bare walls, floor and roof, but will have necessary amenities to make habitation happy. That is why the legislature has fairly included gardens, grounds and outhouses, if any, appurtenant to such building. Likewise, leases sometimes are of furnished buildings and that is why any furniture supplied by the landlord for use in such building is treated as part of the building. In the same strain, we may notice, as a matter of common occurrence, many fittings such as electrical fittings, sanitary fittings, curtains and venetian blinds andequipment being fixed to the building by the landlord so that the tenants enjoyment of the tenement may be more attractive. The crucial point is that these additions are appurtenant, subservient and beneficial to the building itself. They make occupation of the building more convenient and pleasant but the principal thing demised is the building and the additives are auxiliary. Where the lease is composite and has a plurality of purposes, the decisive test is the dominant purpose of the demise.9. Forgetting for a moment the clause introduced by the amending Act, it is plain that the furniture and fittings visualized in the concept of accommodation are calculated to improve the beneficial enjoyment of the premises leased. Counsel for the tenant has countered this interpretation by an ingenious and plausible submission. He emphasizes that the present building was conceived, designed and structured expressly as a cinema house conforming to the regulations in this behalf and the purpose of the owner was to use the auditorium and annexes purely as a cinema house. According to him, when a cinema theatre is erected, it becomes useless unless the necessary equipment for exhibiting films are also fitted up. In this view, the relative cost of the fixtures is immaterial and all these items, however costly, are calculated to fulfil the very object of the construction of the cinema theatre. In short, the fittings and furniture and like items are beneficial to and enhance the worth of the building and cannot be divorced or dissected from the whole object which animated the project of the building construction qua a cinema house. So presented, there is a certain attractiveness in the argument, although this facet of interpretation does not find a place in the submission on behalf of the respondent in the High Court.We have been at pains to explain that the subject matter of the leases covered by the definition of accommodation is any building or part of a building. We have carefully analysed the inclusive expressions in the original definition such as appurtenant gardens, grounds and outhouses furniture for use in the building and fittings affixed to the building. In this statutory context, gardens, outhouses, furniture and fittings mean annexures for the better enjoyment of the building. In this sense, the dominant intention must be to lease the building qua building. If that be the intention, the rent control law protects. On the other hand, if a going undertaking such as a running orand fully equipped cinema house is covered by the provision, the emphasis is not so much on the building but on the business, actual or imminent. There is nothing in the present definition which helps this shift in accent.12. We may reinforce our view from the expressions used, because all the three categories included as additions play a subservient role, while if a business were the subject matter of the lease, the prominent thing will be not what houses the business but the business itself. The building becomes secondary since every business or industry has to be accommodated in some enclosure or building. In all such cases, the lessor makes over possession of the building as part and parcel of the transfer of possession of the business. It would be a travesty of language to speak of a lease of a building when what is substantially made over is a business or industrial plant.There is some validity in this submission but if, on a fair construction, the principal provision is clear, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. Here, such is the case. In a country where factories and industries may still be in the developmental stage, it is not unusual to come across several such units which may not have costly machinery or plant or fittings and superficially consist of bare buildings plus minor fixtures. For example, a beedi factory or handicraft or carpentryfew tools, some small contrivances or collection of materials housed in a building, will superficially look like a mere accommodation but actually be a humming factory or business with a goodwill as business, with a prosperous reputation and a name among the business community and customers. Its value is qua business, although it has a habitation or building to accommodate it. The personality of the thing let out is a going concern or enterprise, not a lifeless edifice. The legislature, quite conceivably, thought that a marginal, yet substantial, class of buildings, with minimal equipments may still be good businesses and did not require protection as in the case of ordinary building tenancies. So, to dispel confusion from this region and to exclude what seemingly might be leases only of buildings but in truth might be leases of businesses, the legislature introduced the exclusionary proviso.17. While rulings and text books bearing on statutory construction have assigned many functions for provisos, we have to be selective, having regard to the next and context of a statute. Nothing is gained by extensive references to luminous classics or supportiveHaving explained the approach we make to the specific proviso situation in Sec. 2 (a) of the Act, what strikes us as meaningful here is that the legislature by the amending Act clarified what was implicit earlier and expressly carved out what otherwise might be mistakenly covered by the main definition. The proviso does not, in this case, expand, by implication, the protected area of building tenancies to embrace business leases.It is true that in Jaffer Alis case AIR 1971 Andh. Pra 156 (FB) and in Govindans case AIR 1966 Ker 244 (FB) (the Andhra and Kerala decisions referred to above) cinema theatres have been held to fall within the definition of building, under the relevant rent control law of those States. A bare reading of the two cases would show that certain amendments had been made to the parent statutes whereby the definition was expanded and its wide range was made to include all tenancies relating to all structures, even though accessories, furniture and fittings for use in the house were also made over. There is no doubt that the word fittings may take in a projector or other apparatus used for a cinema but it is one thing to say that apparatus is fixed in a building and it is another to say that such fixture or apparatus is for the beneficial enjoyment of the building. Therefore it depends on the words used reflecting the legislative policy of each State Legislature. Indeed in Venkayya v. Venkata Subba Rao, AIR 1957 Andh Pra 619 a Division Bench of the Andhra Pradesh High Court considered whether the lease of a fixture comprising buildings and machinery came within the sweep of the rent control law. The court held that the lease of a running factory, comprising costly machinery intended to be used for manufacture, did not fall within the definition. The question in each case, the learned judges pointed out, would be what is the dominant part of the demise and what the main purpose for which the building was let out is. In Amritlal N. Shah v. Annapurnamma, AIR 1959 Andh Pra 9 the same court held that the lease of a cinema did not come within the purview of Madras Act 25 of 1949. Definitional ramifications need not detain us nor decisions turning on them. | 1 | 6,658 | 1,522 | ### 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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from the land and building, to the machinery and equipments etc., and whether there was any provision in the deed relating to them, he confessed that there was no specific provision in the deed. Obviously they cannot be governed by Madras Act XV of 1946 and so he said they must be governed by the general law of contract. He also conceded that if the lessees paid Rupees 1600/- but defaulted in the payment of the balance which is due as hire, the lessors have no right to ask for eviction under the Rent Control Act. We think that the attempted division of the lease and separation of rights in regard to two classes of property is in the highest degree artificial, never contemplated by the parties. Here is a lease of a talkie house with everything that is necessary to run cinema shows. To split up such a composite lease as this into separate contracts of lease and hire is to destroy it altogether. Mr. Ramachandra Iyer argued that the furniture which was covered by the lease fell within the definition of Section 2 of the Act. We do not agree. The observations of the learned Judges in App. No. 590 of 1945 (Patanjali Sastri and Bell JJ.) in dealing with the plant, machinery and other moveables which were demised along with a factory are very apposite in this connection: No doubt in one sense the buildings comprised in the lease deed contain articles supplied by the landlord; but we cannot agree that what was so supplied can be considered in any modern sense as being furniture.Though in that case the learned Judges were dealing with the lease of a factory called the West Coast Match Co., which consisted of land and buildings including a bungalow used for residential purposes together with plant, machinery and moveables contained therein, we think the principle of that decision would apply equally to the case before us in which there is a lease not merely of a building but of a cinema theatre with all necessary equipment for the exhibition of films."23. It is true that in Jaffer Alis case AIR 1971 Andh. Pra 156 (FB) and in Govindans case AIR 1966 Ker 244 (FB) (the Andhra and Kerala decisions referred to above) cinema theatres have been held to fall within the definition of building, under the relevant rent control law of those States. A bare reading of the two cases would show that certain amendments had been made to the parent statutes whereby the definition was expanded and its wide range was made to include all tenancies relating to all structures, even though accessories, furniture and fittings for use in the house were also made over. There is no doubt that the word fittings may take in a projector or other apparatus used for a cinema but it is one thing to say that apparatus is fixed in a building and it is another to say that such fixture or apparatus is for the beneficial enjoyment of the building. Therefore it depends on the words used reflecting the legislative policy of each State Legislature. Indeed in Venkayya v. Venkata Subba Rao, AIR 1957 Andh Pra 619 a Division Bench of the Andhra Pradesh High Court considered whether the lease of a fixture comprising buildings and machinery came within the sweep of the rent control law. The court held that the lease of a running factory, comprising costly machinery intended to be used for manufacture, did not fall within the definition. The question in each case, the learned judges pointed out, would be what is the dominant part of the demise and what the main purpose for which the building was let out is. In Amritlal N. Shah v. Annapurnamma, AIR 1959 Andh Pra 9 the same court held that the lease of a cinema did not come within the purview of Madras Act 25 of 1949. Definitional ramifications need not detain us nor decisions turning on them.24. Shri Tarkunde pressed upon us the decision in Karsandas v. Karsanji, AIR1953 Sau l13 and Karnani Properties Ltd., v. Miss Augustine, AIR 1957 SC 309 . One of them did refer to a cinema theatre with fittings and generators. Certain Calcutta decisions, Kali Prosad v. Jagadish Pada, AIR 1953 Cal 149 and D. S. Jain v. Meghamala Roy, (1964) 68 Cal WN 1136 were also cited before us. In all these cases, the decision turned on the precise language used. We do not see any need to discuss these and the other decisions cited before us because we have explained why the conclusion we have reached is in consonance with the sense, purpose and language of the Act. For the same reason we content ourselves with merely, mentioning that in Harisingh v. Ratanlal 1969 Jab LJ 639 a Division Bench of the Madhya Pradesh High Court held that a fully equipped cinema theatre let out for showing films of a commercial basis, being of a running cinema theatre, fell out of the scope of accommodation on the score that costly fittings, fixtures and equipment could, in no sense, be regarded and meant for the beneficial enjoyment of the building in which the cinema theatre was housed. The primary object and the definitional language used determine the issue.25. Respondents counsel did try to approximate the definition in the Act to that found in the enactments with reference to which decisions in his favour had been rendered. We do not agree. To hair-split is an unhappy interpretative exercise. Here the plain intendment is to encompass leases of buildings only (inclusive of what renders them more congenial) but not of businesses accommodated in buildings nor of premises let out with the predominant purpose of running a business. A lease of a lucrative theatre with expensive cinema equipment, which latter pressed the lessee to go into the transaction, cannot reasonably be reduced into a mere tenancy of a building together with fittings which but make the user more comfortable.
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and enhance the worth of the building and cannot be divorced or dissected from the whole object which animated the project of the building construction qua a cinema house. So presented, there is a certain attractiveness in the argument, although this facet of interpretation does not find a place in the submission on behalf of the respondent in the High Court.We have been at pains to explain that the subject matter of the leases covered by the definition of accommodation is any building or part of a building. We have carefully analysed the inclusive expressions in the original definition such as appurtenant gardens, grounds and outhouses furniture for use in the building and fittings affixed to the building. In this statutory context, gardens, outhouses, furniture and fittings mean annexures for the better enjoyment of the building. In this sense, the dominant intention must be to lease the building qua building. If that be the intention, the rent control law protects. On the other hand, if a going undertaking such as a running orand fully equipped cinema house is covered by the provision, the emphasis is not so much on the building but on the business, actual or imminent. There is nothing in the present definition which helps this shift in accent.12. We may reinforce our view from the expressions used, because all the three categories included as additions play a subservient role, while if a business were the subject matter of the lease, the prominent thing will be not what houses the business but the business itself. The building becomes secondary since every business or industry has to be accommodated in some enclosure or building. In all such cases, the lessor makes over possession of the building as part and parcel of the transfer of possession of the business. It would be a travesty of language to speak of a lease of a building when what is substantially made over is a business or industrial plant.There is some validity in this submission but if, on a fair construction, the principal provision is clear, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. Here, such is the case. In a country where factories and industries may still be in the developmental stage, it is not unusual to come across several such units which may not have costly machinery or plant or fittings and superficially consist of bare buildings plus minor fixtures. For example, a beedi factory or handicraft or carpentryfew tools, some small contrivances or collection of materials housed in a building, will superficially look like a mere accommodation but actually be a humming factory or business with a goodwill as business, with a prosperous reputation and a name among the business community and customers. Its value is qua business, although it has a habitation or building to accommodate it. The personality of the thing let out is a going concern or enterprise, not a lifeless edifice. The legislature, quite conceivably, thought that a marginal, yet substantial, class of buildings, with minimal equipments may still be good businesses and did not require protection as in the case of ordinary building tenancies. So, to dispel confusion from this region and to exclude what seemingly might be leases only of buildings but in truth might be leases of businesses, the legislature introduced the exclusionary proviso.17. While rulings and text books bearing on statutory construction have assigned many functions for provisos, we have to be selective, having regard to the next and context of a statute. Nothing is gained by extensive references to luminous classics or supportiveHaving explained the approach we make to the specific proviso situation in Sec. 2 (a) of the Act, what strikes us as meaningful here is that the legislature by the amending Act clarified what was implicit earlier and expressly carved out what otherwise might be mistakenly covered by the main definition. The proviso does not, in this case, expand, by implication, the protected area of building tenancies to embrace business leases.It is true that in Jaffer Alis case AIR 1971 Andh. Pra 156 (FB) and in Govindans case AIR 1966 Ker 244 (FB) (the Andhra and Kerala decisions referred to above) cinema theatres have been held to fall within the definition of building, under the relevant rent control law of those States. A bare reading of the two cases would show that certain amendments had been made to the parent statutes whereby the definition was expanded and its wide range was made to include all tenancies relating to all structures, even though accessories, furniture and fittings for use in the house were also made over. There is no doubt that the word fittings may take in a projector or other apparatus used for a cinema but it is one thing to say that apparatus is fixed in a building and it is another to say that such fixture or apparatus is for the beneficial enjoyment of the building. Therefore it depends on the words used reflecting the legislative policy of each State Legislature. Indeed in Venkayya v. Venkata Subba Rao, AIR 1957 Andh Pra 619 a Division Bench of the Andhra Pradesh High Court considered whether the lease of a fixture comprising buildings and machinery came within the sweep of the rent control law. The court held that the lease of a running factory, comprising costly machinery intended to be used for manufacture, did not fall within the definition. The question in each case, the learned judges pointed out, would be what is the dominant part of the demise and what the main purpose for which the building was let out is. In Amritlal N. Shah v. Annapurnamma, AIR 1959 Andh Pra 9 the same court held that the lease of a cinema did not come within the purview of Madras Act 25 of 1949. Definitional ramifications need not detain us nor decisions turning on them.
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General Officer Commanding-In-Chief and Another Vs. Dr Subhash Chandra Yadav and Another | on behalf of the appellants that in view of sub-section (2) of Section 281, Rule 5-C became a part of the statute and, accordingly, the question of its being contrary to the provisions of the Cantonments Act does not at all arise. 14. This contention is unsound. It is well settled that rules framed under the provisions of a statute form part of the statute. In other words, rules have statutory force. But before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it was conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void. The position remains the same even though sub-section (2) of Section 281 of the Act has specifically provided that after the rules are framed and published they shall have effect as if enacted in the Act. In other words, in spite of the provision of sub-section (2) of Section 281, any rule framed under the Cantonments Act has to fulfil the two conditions mentioned above for their validity. The observation of this Court in Jestmani Gulabrai Dholkia v. Scindia Steam Navigation Company [(1961) 2 Scr 811 : AIR 1961 SC 627 ], relied upon by Mr. Aggarwal, that a contract of service may be transferred by a statutory provision, does not at all help the appellants. There can be no doubt that a contract of service may be transferred by statutory provisions, but before a rule framed under a statute is regarded a statutory provision or a part of the statute, it must fulfil the above two conditions. Rule 5-C was framed by the Central Government in excess of its rule making power as contained in clause (c) of sub-section (2) of section 280 of the Cantonments Act before its amendment by the substitution of clause (c); it is, therefore, void. 15. It is not disputed that the Cantonment Boards are statutory and autonomous bodies controlled entirely by the Cantonments Act. Each Cantonment Board is an independent body functioning within its limited jurisdiction. The Board is the appointing authority of its employees. The service under the Cantonment Board is not a centralised service nor is it a service at the State level. 16. There is much force in the contention of the respondent that as service under the Cantonment Board is not a centralised service or a service at the State level, the transfer of an employee from one Cantonment Board to another would mean the termination of appointment of the employee in the Cantonment Board from which he is transferred and a fresh appointment in the Board where he is so transferred. The GOC-in-Chief, Central Command, is not the appointing authority of the respondent or the employees of the Cantonment Board, and so transfer of the respondent by the GOC-in-Chief is not permissible. In any event, one autonomous body cannot transfer its employee to another autonomous body even within the same State, unless the services of the employees of these two bodies are under a centralised or a State level service. In this connection, we may refer to a decision of this Court in Om Prakash Rana v. Swarup Singh Tomar [(1986) 3 SCC 118 : 1986 SCC (L & S) 398]. Pathak, J. (as His Lordship then was) speaking for the court observed as follows : [SCC p. 126 : SCC (L & S) p. 406, para 9]. As is clear by now, the fundamental basis of the contention that the power of transfer under the Education Act and its Regulations continues in force even after the enactment of the Services Commission Act rests on the assumption that the power of appointment does not include the power of transfer. In our opinion, the assumption is unsustainable. The scheme under the Education Act envisages the appointment of a Principal in relation to a specific college. The appointment is in relation to that college and to no other. Moreover, different colleges may be owned by different bodies or organisations, so that each Principal serves a different employer. Therefore, on filling the office of a Principal to a college, a new contract of employment with a particular employer comes into existence. There is no State level service to which Principals are appointed. Had that been so, it would have been possible to say that when a Principal is transferred from one college to another no fresh appointment is involved. But when a Principal is appointed in respect of a particular collect and is thereafter transferred as a Principal of another college it can hardly be doubted that a new appointment comes into existence. Although the process of transfer may be governed by considerations and move through a machinery different from the considerations governing the appointment of a person ab initio as Principal, the nature of the transaction is the same, namely, that of appointment, and that is so whether the appointment be through direct recruitment, through promotion from the teaching staff of the same institution or by transfer from another institution. 17. The observation extracted above clearly supports the contention made on behalf of the respondent that the employees of one Cantonment Board cannot be transferred to another Cantonment Board inasmuch as the service under the Cantonment Board is not a centralised service or a service at the State level. 18. Mr. Aggarwal, however, submits that the respondent would not be in the least prejudiced by the transfer inasmuch as full safeguard has been provided for in Rule 5-C. The question whether the interest of the transferee has been protected or full safeguard has been provided for by Rule 5-C is quite irrelevant, if it is invalid and void. Moreover, the provisions of Rule 5-C are clumsy and lack clarity and a transfer may affect the transferee prejudicially. | 0[ds]But, in our opinion, even in spite of substituted clause (c), the Central Government will not be entitled to frame rules for transfer of an employee from one Cantonment Board to another within the State for the reasons stated already, namely, (1) the Cantonment Boards are autonomous bodies; (2) the service under the Cantonment Boards is neither a centralised service nor is it a service at the State level; and (3) any such transfer of an employee will mean termination of service of the employee in the Cantonment Board from where he is transferred and a fresh appointment by the Cantonment Board which he joins on suchSo long as the Cantonment Board service is not made a centralised service or at least a State level service, there can be no transfer from one Cantonment Board to another Cantonment Board within the same State. The Central Government had better consider the question of making the Cantonment Board service a centralised service so as to enable one Cantonment Board to transfer its employees to another Cantonment Board21. As has been held by the High Court, the Central Government has power to frame rules about the transfer of the servants of the Board in exercise of its powers under clause (c) of sub-section (2) of Section 280 of the Act within the region in respect of which it has jurisdiction. For example, the respondent could be transferred from one hospital of the Cantonment Board, Lucknow, to another hospital under the same Board. But that apart, the Cantonments Act does not authorise the Central Government to frame rules for transfer from one Cantonment Board toThe High Court was, therefore, quite justified in striking down Rule 5-C of the Rules and in quashing the impugned order of transfer of the respondent | 0 | 2,563 | 331 | ### 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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on behalf of the appellants that in view of sub-section (2) of Section 281, Rule 5-C became a part of the statute and, accordingly, the question of its being contrary to the provisions of the Cantonments Act does not at all arise. 14. This contention is unsound. It is well settled that rules framed under the provisions of a statute form part of the statute. In other words, rules have statutory force. But before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it was conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void. The position remains the same even though sub-section (2) of Section 281 of the Act has specifically provided that after the rules are framed and published they shall have effect as if enacted in the Act. In other words, in spite of the provision of sub-section (2) of Section 281, any rule framed under the Cantonments Act has to fulfil the two conditions mentioned above for their validity. The observation of this Court in Jestmani Gulabrai Dholkia v. Scindia Steam Navigation Company [(1961) 2 Scr 811 : AIR 1961 SC 627 ], relied upon by Mr. Aggarwal, that a contract of service may be transferred by a statutory provision, does not at all help the appellants. There can be no doubt that a contract of service may be transferred by statutory provisions, but before a rule framed under a statute is regarded a statutory provision or a part of the statute, it must fulfil the above two conditions. Rule 5-C was framed by the Central Government in excess of its rule making power as contained in clause (c) of sub-section (2) of section 280 of the Cantonments Act before its amendment by the substitution of clause (c); it is, therefore, void. 15. It is not disputed that the Cantonment Boards are statutory and autonomous bodies controlled entirely by the Cantonments Act. Each Cantonment Board is an independent body functioning within its limited jurisdiction. The Board is the appointing authority of its employees. The service under the Cantonment Board is not a centralised service nor is it a service at the State level. 16. There is much force in the contention of the respondent that as service under the Cantonment Board is not a centralised service or a service at the State level, the transfer of an employee from one Cantonment Board to another would mean the termination of appointment of the employee in the Cantonment Board from which he is transferred and a fresh appointment in the Board where he is so transferred. The GOC-in-Chief, Central Command, is not the appointing authority of the respondent or the employees of the Cantonment Board, and so transfer of the respondent by the GOC-in-Chief is not permissible. In any event, one autonomous body cannot transfer its employee to another autonomous body even within the same State, unless the services of the employees of these two bodies are under a centralised or a State level service. In this connection, we may refer to a decision of this Court in Om Prakash Rana v. Swarup Singh Tomar [(1986) 3 SCC 118 : 1986 SCC (L & S) 398]. Pathak, J. (as His Lordship then was) speaking for the court observed as follows : [SCC p. 126 : SCC (L & S) p. 406, para 9]. As is clear by now, the fundamental basis of the contention that the power of transfer under the Education Act and its Regulations continues in force even after the enactment of the Services Commission Act rests on the assumption that the power of appointment does not include the power of transfer. In our opinion, the assumption is unsustainable. The scheme under the Education Act envisages the appointment of a Principal in relation to a specific college. The appointment is in relation to that college and to no other. Moreover, different colleges may be owned by different bodies or organisations, so that each Principal serves a different employer. Therefore, on filling the office of a Principal to a college, a new contract of employment with a particular employer comes into existence. There is no State level service to which Principals are appointed. Had that been so, it would have been possible to say that when a Principal is transferred from one college to another no fresh appointment is involved. But when a Principal is appointed in respect of a particular collect and is thereafter transferred as a Principal of another college it can hardly be doubted that a new appointment comes into existence. Although the process of transfer may be governed by considerations and move through a machinery different from the considerations governing the appointment of a person ab initio as Principal, the nature of the transaction is the same, namely, that of appointment, and that is so whether the appointment be through direct recruitment, through promotion from the teaching staff of the same institution or by transfer from another institution. 17. The observation extracted above clearly supports the contention made on behalf of the respondent that the employees of one Cantonment Board cannot be transferred to another Cantonment Board inasmuch as the service under the Cantonment Board is not a centralised service or a service at the State level. 18. Mr. Aggarwal, however, submits that the respondent would not be in the least prejudiced by the transfer inasmuch as full safeguard has been provided for in Rule 5-C. The question whether the interest of the transferee has been protected or full safeguard has been provided for by Rule 5-C is quite irrelevant, if it is invalid and void. Moreover, the provisions of Rule 5-C are clumsy and lack clarity and a transfer may affect the transferee prejudicially.
### Response:
0
### Explanation:
But, in our opinion, even in spite of substituted clause (c), the Central Government will not be entitled to frame rules for transfer of an employee from one Cantonment Board to another within the State for the reasons stated already, namely, (1) the Cantonment Boards are autonomous bodies; (2) the service under the Cantonment Boards is neither a centralised service nor is it a service at the State level; and (3) any such transfer of an employee will mean termination of service of the employee in the Cantonment Board from where he is transferred and a fresh appointment by the Cantonment Board which he joins on suchSo long as the Cantonment Board service is not made a centralised service or at least a State level service, there can be no transfer from one Cantonment Board to another Cantonment Board within the same State. The Central Government had better consider the question of making the Cantonment Board service a centralised service so as to enable one Cantonment Board to transfer its employees to another Cantonment Board21. As has been held by the High Court, the Central Government has power to frame rules about the transfer of the servants of the Board in exercise of its powers under clause (c) of sub-section (2) of Section 280 of the Act within the region in respect of which it has jurisdiction. For example, the respondent could be transferred from one hospital of the Cantonment Board, Lucknow, to another hospital under the same Board. But that apart, the Cantonments Act does not authorise the Central Government to frame rules for transfer from one Cantonment Board toThe High Court was, therefore, quite justified in striking down Rule 5-C of the Rules and in quashing the impugned order of transfer of the respondent
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Mohd. Munna & Others Vs. State of W.B | the detention order was confirmed by the State Government on 4-8-71.W.P. No. 284 of 1971.3. The order of detention in this case was made on 2-4-71, on which date the State Government was also informed. The detenu was arrested on 8-4-71, on which date the orders of detention and the grounds therefor were also served on the detenu. A report was made to the State Government on 2-4-71 and the State Government approved that order on 10-4-71. On the same day it sent a report to the Central Government. The case was placed before the Board on 7-5-71. Before that a representation was received on 23-4-71, which was considered by the Government are rejected on 8-6-71. The Advisory Boards opinion was given on 14-6-71 which was confirmed by the State Government on 21-8-71.W. P. No. 285 of 1971.4. The detention order in this case was made on 26-12-70 and on the same day communicated to the State Government, which approved of it on 4-1-71. On the same day a report was made by the State Government to the Central Government. Two representations were received on 11-1-71 and 1-2-71. These were considered by the State Government on 21-1-71 and 9-2-71, and rejected. On 25-1-71 the case was placed before the Advisory Board which gave its opinion on 12-2-71. The order of detention was confirmed on 30-7-71.W. P. No. 286 of 1971.5. The order of detention in this case was made on 14-2-71 and on the same day it was reported to the State Government, which approved of it on 25-2-71. The petitioner was arrested on 17-2-71, on which date the orders of detention and grounds therefor were also served on the detenu. A report was also made to the Central Government on 25-2-71. A representation was received on 11-3-71 which was considered and rejected by the State Government on 8-4-71. On 18-3-71 the case was placed before the Advisory Board which gave its opinion on 23-4-71. The detention order was confirmed by the State Government on 10-8-71.W. P. No. 328 of 1971.6. The order of detention in this case was made on 16-4-71 and sent to the Government for approval on the same day and the Government approved of it on 26-4-71, and made a report on the same day to the Central Government. The detenu was arrested on 21-4-71, on which date the order and the grounds of detention were served on him. He made a representation which was received on 17-5-71. The Government considered this representation and rejected it on 20-5-71. The case was placed before the Advisory Board on 20-5-71 and the Board gave its opinion on 28-6-71 which was confirmed by the State Government on 2-9-71.W.P. 329 of 1971.7. The order of detention in this case was made on 29-1-71 and sent to the State Government for approval on the same day. The State Government approved of the order on 9-2-71 and made a report to the Central Government in respect thereof on the same day. The detenu was arrested on 25-3-71. It does not appear that the made any representation. The case was placed before the Advisory Board on 21-4-71, and the Board gave its opinion that there was sufficient cause for detention on 31-5-71 which was confirmed by the State Government on 2-8-71.W.P. No. 330 of 1971.8. The order of detention was made in this case on 5-1-71 and sent to the Government on the same day for approval. The State Govt. approved of it on 14-1-71 and made a report to the Central Government on the same day. The detenu was arrested on 28-5-71 on which date he was served with the order of detention and the grounds of detention. He made a representation which was received on 1-7-71. This was considered and rejected on 31-7-71. The State Government placed the case before the Advisory Board on 26-6-71 and the Advisory Board gave its opinion that there was sufficient cause for detention on 4-8-71, which was confirmed by the State Government on 3-9-71.W.P. 305 of 1971.9. The order of detention in this case made on 13-4-71 and communicated to the State Government on the same day. It was approved by the State Government on 24-4-71. The case was placed before the Advisory Board on 22-5-71 and the opinion of the Board that there was sufficient cause was sent to the Government on 22-6-71. The detenu was arrested on 23-4-71 on which date the grounds and the order of detention were also served on him. The Government confirmed the detention order on 7-9-71.W. P. No. 310 of 1971.10. The order of detention in this case was made on 25-3-71 and approved by the State Government on 3-4-71. The detenu was arrested on 26-3-71 when the order of detention and the grounds therefor were also served on him. A representation was made by the petitioner on 3-4-71 which was dismissed by the State Government on 22-4-71. The case was placed before the Advisory Board on 24-4-71 and the Board submitted its opinion that there was sufficient cause for detention on 2-6-71. The order of detention was confirmed on 23-8-1971.W. P. No. 312 of 1971.11. The detention order in this case was passed on 4-1-71 and the Government approved of the same on 12-1-71. The detenu was arrested on 8-1-71 and served with the order and the grounds therefor on the same day. His representation was rejected on 20-2-71. The case was placed before the Advisory Board on 4-2-71 and the report of the Board that in its opinion there was sufficient cause for his detention was sent to the Government on 13-3-71. The detention order was confirmed by the State Government on 9-8-71.12. It will be seen from the facts stated above that in all those Writ Petitions the mandatory provisions of the Act with regard to detention have been duly observed except that confirmation and continuation of the detention order under Section 12 has not been made within 3 months from the date of detention. | 1[ds]12. It will be seen from the facts stated above that in all those Writ Petitions the mandatory provisions of the Act with regard to detention have been duly observed except that confirmation and continuation of the detention order under Section 12 has not been made within 3 months from the date of detention. | 1 | 1,421 | 60 | ### 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:
the detention order was confirmed by the State Government on 4-8-71.W.P. No. 284 of 1971.3. The order of detention in this case was made on 2-4-71, on which date the State Government was also informed. The detenu was arrested on 8-4-71, on which date the orders of detention and the grounds therefor were also served on the detenu. A report was made to the State Government on 2-4-71 and the State Government approved that order on 10-4-71. On the same day it sent a report to the Central Government. The case was placed before the Board on 7-5-71. Before that a representation was received on 23-4-71, which was considered by the Government are rejected on 8-6-71. The Advisory Boards opinion was given on 14-6-71 which was confirmed by the State Government on 21-8-71.W. P. No. 285 of 1971.4. The detention order in this case was made on 26-12-70 and on the same day communicated to the State Government, which approved of it on 4-1-71. On the same day a report was made by the State Government to the Central Government. Two representations were received on 11-1-71 and 1-2-71. These were considered by the State Government on 21-1-71 and 9-2-71, and rejected. On 25-1-71 the case was placed before the Advisory Board which gave its opinion on 12-2-71. The order of detention was confirmed on 30-7-71.W. P. No. 286 of 1971.5. The order of detention in this case was made on 14-2-71 and on the same day it was reported to the State Government, which approved of it on 25-2-71. The petitioner was arrested on 17-2-71, on which date the orders of detention and grounds therefor were also served on the detenu. A report was also made to the Central Government on 25-2-71. A representation was received on 11-3-71 which was considered and rejected by the State Government on 8-4-71. On 18-3-71 the case was placed before the Advisory Board which gave its opinion on 23-4-71. The detention order was confirmed by the State Government on 10-8-71.W. P. No. 328 of 1971.6. The order of detention in this case was made on 16-4-71 and sent to the Government for approval on the same day and the Government approved of it on 26-4-71, and made a report on the same day to the Central Government. The detenu was arrested on 21-4-71, on which date the order and the grounds of detention were served on him. He made a representation which was received on 17-5-71. The Government considered this representation and rejected it on 20-5-71. The case was placed before the Advisory Board on 20-5-71 and the Board gave its opinion on 28-6-71 which was confirmed by the State Government on 2-9-71.W.P. 329 of 1971.7. The order of detention in this case was made on 29-1-71 and sent to the State Government for approval on the same day. The State Government approved of the order on 9-2-71 and made a report to the Central Government in respect thereof on the same day. The detenu was arrested on 25-3-71. It does not appear that the made any representation. The case was placed before the Advisory Board on 21-4-71, and the Board gave its opinion that there was sufficient cause for detention on 31-5-71 which was confirmed by the State Government on 2-8-71.W.P. No. 330 of 1971.8. The order of detention was made in this case on 5-1-71 and sent to the Government on the same day for approval. The State Govt. approved of it on 14-1-71 and made a report to the Central Government on the same day. The detenu was arrested on 28-5-71 on which date he was served with the order of detention and the grounds of detention. He made a representation which was received on 1-7-71. This was considered and rejected on 31-7-71. The State Government placed the case before the Advisory Board on 26-6-71 and the Advisory Board gave its opinion that there was sufficient cause for detention on 4-8-71, which was confirmed by the State Government on 3-9-71.W.P. 305 of 1971.9. The order of detention in this case made on 13-4-71 and communicated to the State Government on the same day. It was approved by the State Government on 24-4-71. The case was placed before the Advisory Board on 22-5-71 and the opinion of the Board that there was sufficient cause was sent to the Government on 22-6-71. The detenu was arrested on 23-4-71 on which date the grounds and the order of detention were also served on him. The Government confirmed the detention order on 7-9-71.W. P. No. 310 of 1971.10. The order of detention in this case was made on 25-3-71 and approved by the State Government on 3-4-71. The detenu was arrested on 26-3-71 when the order of detention and the grounds therefor were also served on him. A representation was made by the petitioner on 3-4-71 which was dismissed by the State Government on 22-4-71. The case was placed before the Advisory Board on 24-4-71 and the Board submitted its opinion that there was sufficient cause for detention on 2-6-71. The order of detention was confirmed on 23-8-1971.W. P. No. 312 of 1971.11. The detention order in this case was passed on 4-1-71 and the Government approved of the same on 12-1-71. The detenu was arrested on 8-1-71 and served with the order and the grounds therefor on the same day. His representation was rejected on 20-2-71. The case was placed before the Advisory Board on 4-2-71 and the report of the Board that in its opinion there was sufficient cause for his detention was sent to the Government on 13-3-71. The detention order was confirmed by the State Government on 9-8-71.12. It will be seen from the facts stated above that in all those Writ Petitions the mandatory provisions of the Act with regard to detention have been duly observed except that confirmation and continuation of the detention order under Section 12 has not been made within 3 months from the date of detention.
### Response:
1
### Explanation:
12. It will be seen from the facts stated above that in all those Writ Petitions the mandatory provisions of the Act with regard to detention have been duly observed except that confirmation and continuation of the detention order under Section 12 has not been made within 3 months from the date of detention.
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Ibp Company Limited and Another Vs. Bal Kishan Mittal | such scheme subsequently, the supply of kerosene to him could not have been discontinued on the basis of policy decision of the Government. In that view of the matter, the learned District Judge allowed the appeal and set aside the judgment and decree of the learned trial Judge and passed the aforesaid permanent injunction and mandatory injunction as prayed for by the plaintiff/respondent.6. The appellant-company thereafter preferred a second appeal before the Punjab and Haryana High Court but as aforesaid, the said appeal was summarily dismissed by the learned Single Judge at the admission stage of hearing. 7. Mr. P. Chidambaram, learned counsel appearing for the appellants had contended that the plaintiff/respondent was not entitled to a decree for permanent and mandatory injunction compelling the respondent to continue the agency of selling kerosene/LDO in favour of the plaintiff/respondent. Even if the agency had been wrongly and unjustly terminated by the appellant-company the plaintiff/respondent was only entitled to damages. The suit as framed being not maintainable in law was liable to be dismissed on that score. That apart, under the terms of the agreement, the agency was liable to be terminated by giving one months notice and admittedly such notice of termination having been given, the plaintiff/respondent was not entitled to continue with the said agency. Mr. Chidambaram has submitted that even without considering the question of maintainability of the suit, the termination of the agency is fully justified on merits because such termination was not made arbitrarily or capriciously but on account of the policy decision taken by the Government of India for reasons indicated hereinbefore. He has submitted that the learned Civil Judge appreciated the facts and circumstances of the case correctly and came to the finding that the plaintiff/respondent was appointed a selling agent of kerosene/LDO under the said MPDC Scheme and in view of the said policy decision, such agency had been terminated and there was no mala fide or lack of fair play on the part of the appellant-company. He has submitted that the learned District Judge misconceived the facts completely and had come to an erroneous finding that the plaintiff/respondent had been appointed a dealer independently but he was brought under the MPDC Scheme in the matter of selling agency of kerosene/LDO subsequently. Such finding, according to Mr. Chidambaram, is contrary to the documents and evidences adduced in the suit. He has further submitted that even assuming that the plaintiff had been brought subsequently under the MPDC Scheme, the appellant-company was quite within it right to terminate the said selling agency because of the change in the policy decision and such policy decision having been made applicable all over India, no exception could be taken. Mr. Chidambaram has contended that unfortunately, the High Court failed to consider the facts and circumstances of the case and summarily dismissed the appeal at the admission stage. He has submitted that the appeal should be allowed and the suit should be dismissed by setting aside the impugned judgments. 8. The learned counsel appearing for the plaintiff/respondent, however, contended that the policy decision of the Government of India on the basis of which the said termination of supply of kerosene/LDO was sought to be passed by the appellant-company does not cover the case of the plaintiff/respondent. He has submitted that the District Judge has rightly held that the plaintiff/respondent was appointed as a selling agent of kerosene/LDO not under the MPDC Scheme at the initial stage but subsequently he was brought under the said scheme. He has contended that as there was no allegation that the plaintiff/respondent had resorted to any unfair activities by mixing kerosene with petrol or HSD, the appellant-company was not entitled to terminate the said agency and a public undertaking is bound to act fairly and reasonably and cannot terminate the contract arbitrarily or simply on a pleasure doctrine.9. After considering the respective contentions of learned counsel for the parties and the facts and circumstances of the case, we are fully satisfied that the plaintiff/respondent was appointed as a selling agent of kerosene/LDO under the MPDC Scheme. It is not correct to contend that he was appointed as a selling agent of kerosene/LDO not on account of MPDC Scheme but such agency was later on brought under the said scheme. The materials on record clearly establish that the plaintiff/respondent had been given the selling agency and consequential permission to sell kerosene at his aforesaid petrol pump in view of and after the introduction of MPDC Scheme. It also appears to us the there has not been any arbitrary or capricious decision in termination the agency of the plaintiff/respondent and such decision had been taken because of the policy decision of the Government of India on cogent reasons and such decision had been applied to all the selling agents covered by the MPDC Scheme. Under the terms of the agreement the agency was liable to be terminated by giving one months notice and in this case such notice had been given. The learned District Judge had clearly gone wrong in setting aside the judgment and decree of the learned trial court and granting the reliefs in the suit by way of permanent and mandatory injunction and the High Court was also wrong in dismissing the appeal summarily. It may be mentioned here that our attention has been drawn by Mr. Chidambaram that against the termination of selling agency of kerosene/LDO under similar circumstances, the Allahabad High Court dismissed the writ petition moved by the agent. Similar view has also been taken by the High Court of Delhi in dismissing Writ Petition No. 881 of 1986 (Monga Filling Station v. Union of India) moved against termination of the selling agency of kerosene/LDO under similar circumstances. The special leave petition moved against the decision of Allahabad High Court dated August 28, 1990 in Civil Miscellaneous Writ Petition No. 8520 of 1986 (Shiv Filling Station v. Indo Burma Petroleum Co. Ltd.) was dismissed by this Court on March 8, 1991. | 1[ds]9. After considering the respective contentions of learned counsel for the parties and the facts and circumstances of the case, we are fully satisfied that the plaintiff/respondent was appointed as a selling agent of kerosene/LDO under the MPDC Scheme. It is not correct to contend that he was appointed as a selling agent of kerosene/LDO not on account of MPDC Scheme but such agency was later on brought under the said scheme. The materials on record clearly establish that the plaintiff/respondent had been given the selling agency and consequential permission to sell kerosene at his aforesaid petrol pump in view of and after the introduction of MPDC Scheme. It also appears to us the there has not been any arbitrary or capricious decision in termination the agency of the plaintiff/respondent and such decision had been taken because of the policy decision of the Government of India on cogent reasons and such decision had been applied to all the selling agents covered by the MPDC Scheme. Under the terms of the agreement the agency was liable to be terminated by giving one months notice and in this case such notice had been given. The learned District Judge had clearly gone wrong in setting aside the judgment and decree of the learned trial court and granting the reliefs in the suit by way of permanent and mandatory injunction and the High Court was also wrong in dismissing the appeal summarily. It may be mentioned here that our attention has been drawn by Mr. Chidambaram that against the termination of selling agency of kerosene/LDO under similar circumstances, the Allahabad High Court dismissed the writ petition moved by the agent. Similar view has also been taken by the High Court of Delhi in dismissing Writ Petition No. 881 of 1986 (Monga Filling Station v. Union of India) moved against termination of the selling agency of kerosene/LDO under similar circumstances. The special leave petition moved against the decision of Allahabad High Court dated August 28, 1990 in Civil Miscellaneous Writ Petition No. 8520 of 1986 (Shiv Filling Station v. Indo Burma Petroleum Co. Ltd.) was dismissed by this Court on March 8, 1991. | 1 | 2,234 | 382 | ### 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:
such scheme subsequently, the supply of kerosene to him could not have been discontinued on the basis of policy decision of the Government. In that view of the matter, the learned District Judge allowed the appeal and set aside the judgment and decree of the learned trial Judge and passed the aforesaid permanent injunction and mandatory injunction as prayed for by the plaintiff/respondent.6. The appellant-company thereafter preferred a second appeal before the Punjab and Haryana High Court but as aforesaid, the said appeal was summarily dismissed by the learned Single Judge at the admission stage of hearing. 7. Mr. P. Chidambaram, learned counsel appearing for the appellants had contended that the plaintiff/respondent was not entitled to a decree for permanent and mandatory injunction compelling the respondent to continue the agency of selling kerosene/LDO in favour of the plaintiff/respondent. Even if the agency had been wrongly and unjustly terminated by the appellant-company the plaintiff/respondent was only entitled to damages. The suit as framed being not maintainable in law was liable to be dismissed on that score. That apart, under the terms of the agreement, the agency was liable to be terminated by giving one months notice and admittedly such notice of termination having been given, the plaintiff/respondent was not entitled to continue with the said agency. Mr. Chidambaram has submitted that even without considering the question of maintainability of the suit, the termination of the agency is fully justified on merits because such termination was not made arbitrarily or capriciously but on account of the policy decision taken by the Government of India for reasons indicated hereinbefore. He has submitted that the learned Civil Judge appreciated the facts and circumstances of the case correctly and came to the finding that the plaintiff/respondent was appointed a selling agent of kerosene/LDO under the said MPDC Scheme and in view of the said policy decision, such agency had been terminated and there was no mala fide or lack of fair play on the part of the appellant-company. He has submitted that the learned District Judge misconceived the facts completely and had come to an erroneous finding that the plaintiff/respondent had been appointed a dealer independently but he was brought under the MPDC Scheme in the matter of selling agency of kerosene/LDO subsequently. Such finding, according to Mr. Chidambaram, is contrary to the documents and evidences adduced in the suit. He has further submitted that even assuming that the plaintiff had been brought subsequently under the MPDC Scheme, the appellant-company was quite within it right to terminate the said selling agency because of the change in the policy decision and such policy decision having been made applicable all over India, no exception could be taken. Mr. Chidambaram has contended that unfortunately, the High Court failed to consider the facts and circumstances of the case and summarily dismissed the appeal at the admission stage. He has submitted that the appeal should be allowed and the suit should be dismissed by setting aside the impugned judgments. 8. The learned counsel appearing for the plaintiff/respondent, however, contended that the policy decision of the Government of India on the basis of which the said termination of supply of kerosene/LDO was sought to be passed by the appellant-company does not cover the case of the plaintiff/respondent. He has submitted that the District Judge has rightly held that the plaintiff/respondent was appointed as a selling agent of kerosene/LDO not under the MPDC Scheme at the initial stage but subsequently he was brought under the said scheme. He has contended that as there was no allegation that the plaintiff/respondent had resorted to any unfair activities by mixing kerosene with petrol or HSD, the appellant-company was not entitled to terminate the said agency and a public undertaking is bound to act fairly and reasonably and cannot terminate the contract arbitrarily or simply on a pleasure doctrine.9. After considering the respective contentions of learned counsel for the parties and the facts and circumstances of the case, we are fully satisfied that the plaintiff/respondent was appointed as a selling agent of kerosene/LDO under the MPDC Scheme. It is not correct to contend that he was appointed as a selling agent of kerosene/LDO not on account of MPDC Scheme but such agency was later on brought under the said scheme. The materials on record clearly establish that the plaintiff/respondent had been given the selling agency and consequential permission to sell kerosene at his aforesaid petrol pump in view of and after the introduction of MPDC Scheme. It also appears to us the there has not been any arbitrary or capricious decision in termination the agency of the plaintiff/respondent and such decision had been taken because of the policy decision of the Government of India on cogent reasons and such decision had been applied to all the selling agents covered by the MPDC Scheme. Under the terms of the agreement the agency was liable to be terminated by giving one months notice and in this case such notice had been given. The learned District Judge had clearly gone wrong in setting aside the judgment and decree of the learned trial court and granting the reliefs in the suit by way of permanent and mandatory injunction and the High Court was also wrong in dismissing the appeal summarily. It may be mentioned here that our attention has been drawn by Mr. Chidambaram that against the termination of selling agency of kerosene/LDO under similar circumstances, the Allahabad High Court dismissed the writ petition moved by the agent. Similar view has also been taken by the High Court of Delhi in dismissing Writ Petition No. 881 of 1986 (Monga Filling Station v. Union of India) moved against termination of the selling agency of kerosene/LDO under similar circumstances. The special leave petition moved against the decision of Allahabad High Court dated August 28, 1990 in Civil Miscellaneous Writ Petition No. 8520 of 1986 (Shiv Filling Station v. Indo Burma Petroleum Co. Ltd.) was dismissed by this Court on March 8, 1991.
### Response:
1
### Explanation:
9. After considering the respective contentions of learned counsel for the parties and the facts and circumstances of the case, we are fully satisfied that the plaintiff/respondent was appointed as a selling agent of kerosene/LDO under the MPDC Scheme. It is not correct to contend that he was appointed as a selling agent of kerosene/LDO not on account of MPDC Scheme but such agency was later on brought under the said scheme. The materials on record clearly establish that the plaintiff/respondent had been given the selling agency and consequential permission to sell kerosene at his aforesaid petrol pump in view of and after the introduction of MPDC Scheme. It also appears to us the there has not been any arbitrary or capricious decision in termination the agency of the plaintiff/respondent and such decision had been taken because of the policy decision of the Government of India on cogent reasons and such decision had been applied to all the selling agents covered by the MPDC Scheme. Under the terms of the agreement the agency was liable to be terminated by giving one months notice and in this case such notice had been given. The learned District Judge had clearly gone wrong in setting aside the judgment and decree of the learned trial court and granting the reliefs in the suit by way of permanent and mandatory injunction and the High Court was also wrong in dismissing the appeal summarily. It may be mentioned here that our attention has been drawn by Mr. Chidambaram that against the termination of selling agency of kerosene/LDO under similar circumstances, the Allahabad High Court dismissed the writ petition moved by the agent. Similar view has also been taken by the High Court of Delhi in dismissing Writ Petition No. 881 of 1986 (Monga Filling Station v. Union of India) moved against termination of the selling agency of kerosene/LDO under similar circumstances. The special leave petition moved against the decision of Allahabad High Court dated August 28, 1990 in Civil Miscellaneous Writ Petition No. 8520 of 1986 (Shiv Filling Station v. Indo Burma Petroleum Co. Ltd.) was dismissed by this Court on March 8, 1991.
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Union of India Vs. Bharat Fritz Werner Limited & Another | 1. Feeling aggrieved and dissatisfied with some of the observations made by the High Court of Delhi at New Delhi in the last paragraph of its order dated 19.01.2021, while disposing of Writ Petition No. 5700/2020, the Union of India has preferred the present appeals. 2. That respondent no.1 herein filed the writ petition before the High Court of Delhi being Writ Petition No. 5700/2020 assailing the Letter of Acceptance dated 05.06.2020 issued by the Union of India in favour of respondent no.2 herein, in respect of the award of tender pertaining to lot No.3; ICB Ref. No. 21/TCSP/GOODS/P41/2018/TR/TC (Package41). 2.1 By the impugned order and keeping in view the fact that substantial time has elapsed since the award of the tender in favour of respondent no.2, the High Court declined to interfere in the proceedings and disposed of the writ petition reserving liberty in favour of the original writ petitioner to raise all its pleas and claim the reliefs available to him at this stage in an appropriate civil proceedings. However, while not entertaining the writ petition and/or while disposing of the writ petition, the High Court has made the following observations: ..We also permit the petitioner to make a representation addressed to the Honble Prime Minister of India highlighting the aspects with regard to wrongful evaluation of the bids and discrimination meted out to some of the bidders. In case such a representation is made, we request the PMO to ensure that the same receives the attention of the Honble Prime Minister of India. We are inclined to grant this liberty to the petitioner in the light of the fact that the petitioner is an Indian manufacturer and we had earlier found merit in the claim of the petitioner in Macpower CNC Machines Limited v. Union of India [W.P. No. 3942/2020] that Indian bidders are being discriminated against, even though the tender conditions itself stipulated that Indian manufacturers would be given preference. Keeping in view the fact that the Government of India is laying emphasis on Make in India (Atma-Nirbharta), the grievances of the petitioner appear to be correct and, in our view, require serious consideration at the highest level. 2.2 Feeling aggrieved and dissatisfied with the above observations, the Union of India has preferred the present appeals and has prayed to expunge the said observations/remarks. 3. Having heard Shri Balbir Singh, learned Additional Solicitor General of India, appearing on behalf of the Union of India and Shri Gaurav Juneja, learned counsel appearing on behalf of respondent no.1 herein and having gone through the observations made by the High Court in the last paragraph of its order, made while disposing of the writ petition, reproduced hereinabove, we are of the opinion that the observations made by the High Court, reproduced hereinabove, were absolutely unwarranted. The High Court was not deciding a Public Interest Litigation. The High Court did not even decide the writ petition on merits. On the contrary, in the earlier paragraph, it was observed that it had not gone into the merits of the writ petitioners claim or the respondents defence. In such circumstances, such general observations should have been avoided by the High Court and the High Court ought to have restricted itself to the controversy between the parties before it. Even otherwise, on the basis of a solitary case, general observations could not have been made by the High Court that the Indian bidders are being discriminated against. We advise the High Courts not to make general observations which are not warranted in the case. The High Courts shall refrain from making sweeping observations which are beyond the contours of the controversy and/or issues before them. | 1[ds]3. Having heard Shri Balbir Singh, learned Additional Solicitor General of India, appearing on behalf of the Union of India and Shri Gaurav Juneja, learned counsel appearing on behalf of respondent no.1 herein and having gone through the observations made by the High Court in the last paragraph of its order, made while disposing of the writ petition, reproduced hereinabove, we are of the opinion that the observations made by the High Court, reproduced hereinabove, were absolutely unwarranted. The High Court was not deciding a Public Interest Litigation. The High Court did not even decide the writ petition on merits. On the contrary, in the earlier paragraph, it was observed that it had not gone into the merits of the writ petitioners claim or the respondents defence. In such circumstances, such general observations should have been avoided by the High Court and the High Court ought to have restricted itself to the controversy between the parties before it. Even otherwise, on the basis of a solitary case, general observations could not have been made by the High Court that the Indian bidders are being discriminated against. We advise the High Courts not to make general observations which are not warranted in the case. The High Courts shall refrain from making sweeping observations which are beyond the contours of the controversy and/or issues before them. | 1 | 671 | 250 | ### 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:
1. Feeling aggrieved and dissatisfied with some of the observations made by the High Court of Delhi at New Delhi in the last paragraph of its order dated 19.01.2021, while disposing of Writ Petition No. 5700/2020, the Union of India has preferred the present appeals. 2. That respondent no.1 herein filed the writ petition before the High Court of Delhi being Writ Petition No. 5700/2020 assailing the Letter of Acceptance dated 05.06.2020 issued by the Union of India in favour of respondent no.2 herein, in respect of the award of tender pertaining to lot No.3; ICB Ref. No. 21/TCSP/GOODS/P41/2018/TR/TC (Package41). 2.1 By the impugned order and keeping in view the fact that substantial time has elapsed since the award of the tender in favour of respondent no.2, the High Court declined to interfere in the proceedings and disposed of the writ petition reserving liberty in favour of the original writ petitioner to raise all its pleas and claim the reliefs available to him at this stage in an appropriate civil proceedings. However, while not entertaining the writ petition and/or while disposing of the writ petition, the High Court has made the following observations: ..We also permit the petitioner to make a representation addressed to the Honble Prime Minister of India highlighting the aspects with regard to wrongful evaluation of the bids and discrimination meted out to some of the bidders. In case such a representation is made, we request the PMO to ensure that the same receives the attention of the Honble Prime Minister of India. We are inclined to grant this liberty to the petitioner in the light of the fact that the petitioner is an Indian manufacturer and we had earlier found merit in the claim of the petitioner in Macpower CNC Machines Limited v. Union of India [W.P. No. 3942/2020] that Indian bidders are being discriminated against, even though the tender conditions itself stipulated that Indian manufacturers would be given preference. Keeping in view the fact that the Government of India is laying emphasis on Make in India (Atma-Nirbharta), the grievances of the petitioner appear to be correct and, in our view, require serious consideration at the highest level. 2.2 Feeling aggrieved and dissatisfied with the above observations, the Union of India has preferred the present appeals and has prayed to expunge the said observations/remarks. 3. Having heard Shri Balbir Singh, learned Additional Solicitor General of India, appearing on behalf of the Union of India and Shri Gaurav Juneja, learned counsel appearing on behalf of respondent no.1 herein and having gone through the observations made by the High Court in the last paragraph of its order, made while disposing of the writ petition, reproduced hereinabove, we are of the opinion that the observations made by the High Court, reproduced hereinabove, were absolutely unwarranted. The High Court was not deciding a Public Interest Litigation. The High Court did not even decide the writ petition on merits. On the contrary, in the earlier paragraph, it was observed that it had not gone into the merits of the writ petitioners claim or the respondents defence. In such circumstances, such general observations should have been avoided by the High Court and the High Court ought to have restricted itself to the controversy between the parties before it. Even otherwise, on the basis of a solitary case, general observations could not have been made by the High Court that the Indian bidders are being discriminated against. We advise the High Courts not to make general observations which are not warranted in the case. The High Courts shall refrain from making sweeping observations which are beyond the contours of the controversy and/or issues before them.
### Response:
1
### Explanation:
3. Having heard Shri Balbir Singh, learned Additional Solicitor General of India, appearing on behalf of the Union of India and Shri Gaurav Juneja, learned counsel appearing on behalf of respondent no.1 herein and having gone through the observations made by the High Court in the last paragraph of its order, made while disposing of the writ petition, reproduced hereinabove, we are of the opinion that the observations made by the High Court, reproduced hereinabove, were absolutely unwarranted. The High Court was not deciding a Public Interest Litigation. The High Court did not even decide the writ petition on merits. On the contrary, in the earlier paragraph, it was observed that it had not gone into the merits of the writ petitioners claim or the respondents defence. In such circumstances, such general observations should have been avoided by the High Court and the High Court ought to have restricted itself to the controversy between the parties before it. Even otherwise, on the basis of a solitary case, general observations could not have been made by the High Court that the Indian bidders are being discriminated against. We advise the High Courts not to make general observations which are not warranted in the case. The High Courts shall refrain from making sweeping observations which are beyond the contours of the controversy and/or issues before them.
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Man Singh Vs. State of Haryana | Grover, J. 1. This is an appeal by Special Leave from a Judgment of the Punjab and Haryana High Court. 2. The appellant was convicted by the High Court for an offence under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and sentenced to one years rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine he was to suffer further rigorous imprisonment for three months. This was in reversal of the Order of the Special Judge who had acquitted the appellant. 3. The case of the prosecution was that the appellant was a Patwari at the material time. He demanded illegal gratification from Amar Singh PW-1 for supplying certified copies of certain Khasra Girdawari and Jamabandi entries. Amar Singh PW-1 reported the matter to the Deputy Superintendent of Police. Prem Kumar Sharma PW-13, at Police Station Sadar Panipat, who after complying with all the necessary formalities organised a raid. The currency notes which were produced by Amar Singh PW-1 were duly signed by the Deputy Superintendent of Police. The raiding party which consisted of PW-1 Amar Singh, PW-2 another Amar Singh son of Molu, the Deputy Superintendent of Police, Prem Kumar Sharma PW-13. Tara Chand PW-12, a member of the Block Samiti and some other persons, went in a jeep which was parked in the neighbourhood of the Patwarkhana, Pursuant to the pre-arranged plan the signal was given at the material time and the police party rushed to the office of the appellant and from his shirt currency notes. Exhibits P-1 to P-14, amounting to Rs. 230/- were recovered. Those were the same which had been signed by PW-13. 4. The defence of the appellant was that he never received the aforesaid amount as bribe. According to him he was suffering from a skin disease and he had taken off his shirt which was lying on the side. Amar Singh PW-1 who stood there for ten or fifteen minutes somehow managed to put the money in the pocket of the shirt. It was thereafter that the Deputy Superintendent of Police came and picked up the shirt and recovered the money. The learned Special Judge was of the view that the appellant was suffering from acute dermatitis and it being hot weather it was very likely that he had taken off his shirt. His explanation as to how the money came to be found in the pocket of the shirt was considered reasonable and the evidence of the witnesses was rejected as unsatisfactory or as discrepant. The High Court, however, came to the firm conclusion that at the time when the money was recovered from the pocket of the shirt of the appellant he was wearing it and therefore it was for the appellant to explain how that amount came into his possession. The explanation which he gave was not considered acceptable and, therefore, he was convicted and sentenced as stated before. 5. Now the crucial question in this case is whether the appellant was wearing the shirt from which the currency notes, which were marked, were recovered. If the shirt was lying elsewhere the Special Judge might have legitimately taken the view which he did, but if the shirt was recovered from his person and the money was found therefrom, then clearly it was incumbent under the law on the appellant to show how he came into possession of that money.Even according to him that money did not belong to him and he never claimed that it had come from any other source except that it had been planted in the pocket of his shirt by Amar Singh PW-1. 6. We have been taken through the judgments of the Special Judge and also of the High Court and we have looked at the material portion of the evidence as well. We are satisfied that the High Court was justified in coming to the conclusion that the shirt was recovered at the time of the raid from the person of the appellant. In other words, he was wearing it at the time the raiding party came and recovered the notes from the pocket of the shirt. Even if the evidence of Amar Singh PW-1, who is a partisan and interested witness and against whom there are certain suggestions of previous enmity with the appellant is excluded as also of Preet Singh, who had to be declared hostile, we are unable to understand how the evidence of Tara Chand, a member of Block Samiti, who was perfectly an independent witness, could be disbelieved. The learned Special Judge has dealt with his evidence in a manner which cannot be regarded as satisfactory. This is what he says : "Tara Chand is a member of the Block Samiti. He was joined in the raid from his village Naultha. The inference clearly is that he could be relied on by the police for any story that was to be built up." We are unable to understand how the mere fact that Tara Chand who was a member of the Block Samiti and was joined from his village would lead to the inference that he was a tool in the hands of the police and that he would support any story which might have been falsely concocted against the appellant. In his evidence nothing was brought out to show that he was in any way interested in getting the appellant involved in this offence. The evidence of the Deputy Superintendent of Police, Prem Kumar Sharma PW-13, also does not contain any such infirmity as would have justified the Court in disbelieving him. The High Court has believed these witnesses and has considered the discrepancies which weighed with the Special Judge for discarding the evidence of the witnesses, as of a minor consequence. | 0[ds]5. Now the crucial question in this case is whether the appellant was wearing the shirt from which the currency notes, which were marked, were recovered.6. We have been taken through the judgments of the Special Judge and also of the High Court and we have looked at the material portion of the evidence as well. We are satisfied that the High Court was justified in coming to the conclusion that the shirt was recovered at the time of the raid from the person of the appellant. In other words, he was wearing it at the time the raiding party came and recovered the notes from the pocket of the shirt. Even if the evidence of Amar Singh, who is a partisan and interested witness and against whom there are certain suggestions of previous enmity with the appellant is excluded as also of Preet Singh, who had to be declared hostile, we are unable to understand how the evidence of Tara Chand, a member of Block Samiti, who was perfectly an independent witness, could be disbelieved. The learned Special Judge has dealt with his evidence in a manner which cannot be regarded as satisfactory. This is what he says :"Tara Chand is a member of the Block Samiti. He was joined in the raid from his village Naultha. The inference clearly is that he could be relied on by the police for any story that was to be built up."We are unable to understand how the mere fact that Tara Chand who was a member of the Block Samiti and was joined from his village would lead to the inference that he was a tool in the hands of the police and that he would support any story which might have been falsely concocted against the appellant. In his evidence nothing was brought out to show that he was in any way interested in getting the appellant involved in this offence. The evidence of the Deputy Superintendent of Police, Prem Kumar Sharma, also does not contain any such infirmity as would have justified the Court in disbelieving him. The High Court has believed these witnesses and has considered the discrepancies which weighed with the Special Judge for discarding the evidence of the witnesses, as of a minor consequence. | 0 | 1,049 | 413 | ### 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:
Grover, J. 1. This is an appeal by Special Leave from a Judgment of the Punjab and Haryana High Court. 2. The appellant was convicted by the High Court for an offence under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and sentenced to one years rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine he was to suffer further rigorous imprisonment for three months. This was in reversal of the Order of the Special Judge who had acquitted the appellant. 3. The case of the prosecution was that the appellant was a Patwari at the material time. He demanded illegal gratification from Amar Singh PW-1 for supplying certified copies of certain Khasra Girdawari and Jamabandi entries. Amar Singh PW-1 reported the matter to the Deputy Superintendent of Police. Prem Kumar Sharma PW-13, at Police Station Sadar Panipat, who after complying with all the necessary formalities organised a raid. The currency notes which were produced by Amar Singh PW-1 were duly signed by the Deputy Superintendent of Police. The raiding party which consisted of PW-1 Amar Singh, PW-2 another Amar Singh son of Molu, the Deputy Superintendent of Police, Prem Kumar Sharma PW-13. Tara Chand PW-12, a member of the Block Samiti and some other persons, went in a jeep which was parked in the neighbourhood of the Patwarkhana, Pursuant to the pre-arranged plan the signal was given at the material time and the police party rushed to the office of the appellant and from his shirt currency notes. Exhibits P-1 to P-14, amounting to Rs. 230/- were recovered. Those were the same which had been signed by PW-13. 4. The defence of the appellant was that he never received the aforesaid amount as bribe. According to him he was suffering from a skin disease and he had taken off his shirt which was lying on the side. Amar Singh PW-1 who stood there for ten or fifteen minutes somehow managed to put the money in the pocket of the shirt. It was thereafter that the Deputy Superintendent of Police came and picked up the shirt and recovered the money. The learned Special Judge was of the view that the appellant was suffering from acute dermatitis and it being hot weather it was very likely that he had taken off his shirt. His explanation as to how the money came to be found in the pocket of the shirt was considered reasonable and the evidence of the witnesses was rejected as unsatisfactory or as discrepant. The High Court, however, came to the firm conclusion that at the time when the money was recovered from the pocket of the shirt of the appellant he was wearing it and therefore it was for the appellant to explain how that amount came into his possession. The explanation which he gave was not considered acceptable and, therefore, he was convicted and sentenced as stated before. 5. Now the crucial question in this case is whether the appellant was wearing the shirt from which the currency notes, which were marked, were recovered. If the shirt was lying elsewhere the Special Judge might have legitimately taken the view which he did, but if the shirt was recovered from his person and the money was found therefrom, then clearly it was incumbent under the law on the appellant to show how he came into possession of that money.Even according to him that money did not belong to him and he never claimed that it had come from any other source except that it had been planted in the pocket of his shirt by Amar Singh PW-1. 6. We have been taken through the judgments of the Special Judge and also of the High Court and we have looked at the material portion of the evidence as well. We are satisfied that the High Court was justified in coming to the conclusion that the shirt was recovered at the time of the raid from the person of the appellant. In other words, he was wearing it at the time the raiding party came and recovered the notes from the pocket of the shirt. Even if the evidence of Amar Singh PW-1, who is a partisan and interested witness and against whom there are certain suggestions of previous enmity with the appellant is excluded as also of Preet Singh, who had to be declared hostile, we are unable to understand how the evidence of Tara Chand, a member of Block Samiti, who was perfectly an independent witness, could be disbelieved. The learned Special Judge has dealt with his evidence in a manner which cannot be regarded as satisfactory. This is what he says : "Tara Chand is a member of the Block Samiti. He was joined in the raid from his village Naultha. The inference clearly is that he could be relied on by the police for any story that was to be built up." We are unable to understand how the mere fact that Tara Chand who was a member of the Block Samiti and was joined from his village would lead to the inference that he was a tool in the hands of the police and that he would support any story which might have been falsely concocted against the appellant. In his evidence nothing was brought out to show that he was in any way interested in getting the appellant involved in this offence. The evidence of the Deputy Superintendent of Police, Prem Kumar Sharma PW-13, also does not contain any such infirmity as would have justified the Court in disbelieving him. The High Court has believed these witnesses and has considered the discrepancies which weighed with the Special Judge for discarding the evidence of the witnesses, as of a minor consequence.
### Response:
0
### Explanation:
5. Now the crucial question in this case is whether the appellant was wearing the shirt from which the currency notes, which were marked, were recovered.6. We have been taken through the judgments of the Special Judge and also of the High Court and we have looked at the material portion of the evidence as well. We are satisfied that the High Court was justified in coming to the conclusion that the shirt was recovered at the time of the raid from the person of the appellant. In other words, he was wearing it at the time the raiding party came and recovered the notes from the pocket of the shirt. Even if the evidence of Amar Singh, who is a partisan and interested witness and against whom there are certain suggestions of previous enmity with the appellant is excluded as also of Preet Singh, who had to be declared hostile, we are unable to understand how the evidence of Tara Chand, a member of Block Samiti, who was perfectly an independent witness, could be disbelieved. The learned Special Judge has dealt with his evidence in a manner which cannot be regarded as satisfactory. This is what he says :"Tara Chand is a member of the Block Samiti. He was joined in the raid from his village Naultha. The inference clearly is that he could be relied on by the police for any story that was to be built up."We are unable to understand how the mere fact that Tara Chand who was a member of the Block Samiti and was joined from his village would lead to the inference that he was a tool in the hands of the police and that he would support any story which might have been falsely concocted against the appellant. In his evidence nothing was brought out to show that he was in any way interested in getting the appellant involved in this offence. The evidence of the Deputy Superintendent of Police, Prem Kumar Sharma, also does not contain any such infirmity as would have justified the Court in disbelieving him. The High Court has believed these witnesses and has considered the discrepancies which weighed with the Special Judge for discarding the evidence of the witnesses, as of a minor consequence.
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Parbodh Sagar Vs. Punjab State Electricity Board & Ors | rating. Accordingly, Shri Prabodh Sagar is not found fit for promotion to the selection post of Chief Accounts Officer (Revenue)FA CAO."(h) The petitioner thereafter moved writ petition (No. 8638 of 1995) but since the same are pending, we do not wish to record any observations pertaining thereto and the issues therein are left open.(i) Subsequently, the petitioner moved another Writ Petition being No. 1280 of 1997 wherein the challenge was in regard to adverse remarks in the Annual Confidential Roll of the periods from June, 1985 to December, 1985. The Writ Petition, however, met the same fate and was dismissed by the High Court on 20th January, 1997.(j) There is yet another writ petition filed being Writ petition No. 3935 of 1998 wherein the petitioner again challenged the promotion of Shri K.R. Rabra as Chief Accounts OfficerRevenue and the promotion of Shri S.C. Seth as Financial Advisor and Chief Accounts Officer, the same is still now however is pending. 13. As noted above, the High Court has not highlighted this aspect of the matter, though the same were brought to the notice the High Court, we do not know for what reasons, neither we intend to delve into it but the fact remains that the comment of the learned Advocate appearing of the Board during the course of hearing before this Court that the litigatious spirit of the petitioner has, in fact, brought into effect the exercise of jurisdiction of the writ court to a ludicrous extent. We do find some justification in the criticism of the learned Advocate for the Board vis-a-vis the conduct of the PetitionerAppellant herein. The Petitioner has been, as noted above, from 1989 onwards engaged himself in the law courts rather than exerting himself in an effort to improve his capability as the employee of the Board so that the Board and the State obtain maximum benefit from out of the services of the petitioner-appllant but unfortunately his litigatious spirit prevailed upon him and as noticed above we do find some justification as regards the comment made by the learned Advocate appearing for the Board. Mala fides have been alleged against the statutory Board (Punjab State Electricity Board) but the contextual facts negate such an allegation. Incidentally, be it noted that the expression `mala fide is not a meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. We ourselves feel it expedient to record that the petitioner has become more a liability than an asset and in the event of there being such a situation vis-a-vis an employee, the employer will be within its liberty to take appropriate steps including the cessation of relationship between the employer and the employee. The service conditions of the Boards employees also provide for Voluntary Retirement, a person of the nature of the petitioner, as more fully detailed herein before, cannot possibly be given any redress against the order of the Board for Voluntary Retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word `mala fide by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e. exactly what the High Court has done and that is the reason why the narration have been noted in this judgment in extenso. Tampering of the Annual Confidential Rolls have been alleged but there is no evidence in regard thereto or even to link up the two private respondents therewith. While it is true that the earlier relationship between an employer and employee or between the employees was that of mutual trust, confidence or welfare, presently the situation in general stands polluted and may be even one degree higher than the pollution of the environment, but that does not however clothe the court to come to a conclusion of mala fide without there being any basic evidence being made available to the court. 14. Punjab State Electricity Board Services (Pre-mature Retirement) Regulations, 1982, has been taken recourse to by the Board and in particular, regualtion 3(i)(e) which, in fact, provides an authority to the Board with an absolute right to retire an employee on the date on which he completes 25 years of service or attains 50 years of age upon, however, proper notice to that effect. The Board has, thus, an absolute power to retire an employee pre-maturely though, however, upon following the procedure set out in the rules and the same having been done, can it be said that the legal right of the petitioner stands violated - the answer cannot but be in the negative. The next question that automatically crops up is as to whether the formation of opinion has been in accordance with public interest or not - the facts noted above depict evidence galore as regards the justification of formation of such an opinion. 15. On the facts narrated above, no reasonable man can come to a conclusion, which may even be remotely different from that of the appropriate authority of the Board. A right has been conferred on to the Board to take steps in public interest and in the event the Court comes to a conclusion that a right has not been properly exercised, there would not have been any hesitation to strike down the action of the State Electricity Board, but in the contextual facts, we do not find any. There is available on record reasonings to the issue of the formation of opinion and the same cannot but in the contextual facts is in accordance with the need of the situation. In that view of the matter, we are unable to accept the contentions in support of the Appeal. | 0[ds]9. In the wake of the aforesaid, question of acting beyond the jurisdiction or without jurisdiction in so far as the issuance of the order by Shri T.S. Gujral does not and cannot arise. Paragraph 6 of the allocation amply authorises Shri Gujral to exercise his powers thereunder and to pass appropriate orders in regard thereto on the basis of the recommendations of the High Power Committee. We do not see any infraction of law neither there is any exercise of power in contravention of rules or regulation or authorisation and in that view of the matter we are unable to record our concurrence with the submissions of theAs noted above, the High Court has not highlighted this aspect of the matter, though the same were brought to the notice the High Court, we do not know for what reasons, neither we intend to delve into it but the fact remains that the comment of the learned Advocate appearing of the Board during the course of hearing before this Court that the litigatious spirit of the petitioner has, in fact, brought into effect the exercise of jurisdiction of the writ court to a ludicrous extent. We do find some justification in the criticism of the learned Advocate for the Boardthe conduct of the PetitionerAppellant herein. The Petitioner has been, as noted above, from 1989 onwards engaged himself in the law courts rather than exerting himself in an effort to improve his capability as the employee of the Board so that the Board and the State obtain maximum benefit from out of the services of thebut unfortunately his litigatious spirit prevailed upon him and as noticed above we do find some justification as regards the comment made by the learned Advocate appearing for theourselves feel it expedient to record that the petitioner has become more a liability than an asset and in the event of there being such a situationan employee, the employer will be within its liberty to take appropriate steps including the cessation of relationship between the employer and the employee. The service conditions of the Boards employees also provide for Voluntary Retirement, a person of the nature of the petitioner, as more fully detailed herein before, cannot possibly be given any redress against the order of the Board for Voluntary Retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word `mala fide by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e. exactly what the High Court has done and that is the reason why the narration have been noted in this judgment in extenso. Tampering of the Annual Confidential Rolls have been alleged but there is no evidence in regard thereto or even to link up the two private respondents therewith. While it is true that the earlier relationship between an employer and employee or between the employees was that of mutual trust, confidence or welfare, presently the situation in general stands polluted and may be even one degree higher than the pollution of the environment, but that does not however clothe the court to come to a conclusion of mala fide without there being any basic evidence being made available to the court.On the facts narrated above, no reasonable man can come to a conclusion, which may even be remotely different from that of the appropriate authority of the Board. A right has been conferred on to the Board to take steps in public interest and in the event the Court comes to a conclusion that a right has not been properly exercised, there would not have been any hesitation to strike down the action of the State Electricity Board, but in the contextual facts, we do not find any. There is available on record reasonings to the issue of the formation of opinion and the same cannot but in the contextual facts is in accordance with the need of the situation. In that view of the matter, we are unable to accept the contentions in support of the Appeal. | 0 | 4,425 | 739 | ### 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:
rating. Accordingly, Shri Prabodh Sagar is not found fit for promotion to the selection post of Chief Accounts Officer (Revenue)FA CAO."(h) The petitioner thereafter moved writ petition (No. 8638 of 1995) but since the same are pending, we do not wish to record any observations pertaining thereto and the issues therein are left open.(i) Subsequently, the petitioner moved another Writ Petition being No. 1280 of 1997 wherein the challenge was in regard to adverse remarks in the Annual Confidential Roll of the periods from June, 1985 to December, 1985. The Writ Petition, however, met the same fate and was dismissed by the High Court on 20th January, 1997.(j) There is yet another writ petition filed being Writ petition No. 3935 of 1998 wherein the petitioner again challenged the promotion of Shri K.R. Rabra as Chief Accounts OfficerRevenue and the promotion of Shri S.C. Seth as Financial Advisor and Chief Accounts Officer, the same is still now however is pending. 13. As noted above, the High Court has not highlighted this aspect of the matter, though the same were brought to the notice the High Court, we do not know for what reasons, neither we intend to delve into it but the fact remains that the comment of the learned Advocate appearing of the Board during the course of hearing before this Court that the litigatious spirit of the petitioner has, in fact, brought into effect the exercise of jurisdiction of the writ court to a ludicrous extent. We do find some justification in the criticism of the learned Advocate for the Board vis-a-vis the conduct of the PetitionerAppellant herein. The Petitioner has been, as noted above, from 1989 onwards engaged himself in the law courts rather than exerting himself in an effort to improve his capability as the employee of the Board so that the Board and the State obtain maximum benefit from out of the services of the petitioner-appllant but unfortunately his litigatious spirit prevailed upon him and as noticed above we do find some justification as regards the comment made by the learned Advocate appearing for the Board. Mala fides have been alleged against the statutory Board (Punjab State Electricity Board) but the contextual facts negate such an allegation. Incidentally, be it noted that the expression `mala fide is not a meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. We ourselves feel it expedient to record that the petitioner has become more a liability than an asset and in the event of there being such a situation vis-a-vis an employee, the employer will be within its liberty to take appropriate steps including the cessation of relationship between the employer and the employee. The service conditions of the Boards employees also provide for Voluntary Retirement, a person of the nature of the petitioner, as more fully detailed herein before, cannot possibly be given any redress against the order of the Board for Voluntary Retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word `mala fide by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e. exactly what the High Court has done and that is the reason why the narration have been noted in this judgment in extenso. Tampering of the Annual Confidential Rolls have been alleged but there is no evidence in regard thereto or even to link up the two private respondents therewith. While it is true that the earlier relationship between an employer and employee or between the employees was that of mutual trust, confidence or welfare, presently the situation in general stands polluted and may be even one degree higher than the pollution of the environment, but that does not however clothe the court to come to a conclusion of mala fide without there being any basic evidence being made available to the court. 14. Punjab State Electricity Board Services (Pre-mature Retirement) Regulations, 1982, has been taken recourse to by the Board and in particular, regualtion 3(i)(e) which, in fact, provides an authority to the Board with an absolute right to retire an employee on the date on which he completes 25 years of service or attains 50 years of age upon, however, proper notice to that effect. The Board has, thus, an absolute power to retire an employee pre-maturely though, however, upon following the procedure set out in the rules and the same having been done, can it be said that the legal right of the petitioner stands violated - the answer cannot but be in the negative. The next question that automatically crops up is as to whether the formation of opinion has been in accordance with public interest or not - the facts noted above depict evidence galore as regards the justification of formation of such an opinion. 15. On the facts narrated above, no reasonable man can come to a conclusion, which may even be remotely different from that of the appropriate authority of the Board. A right has been conferred on to the Board to take steps in public interest and in the event the Court comes to a conclusion that a right has not been properly exercised, there would not have been any hesitation to strike down the action of the State Electricity Board, but in the contextual facts, we do not find any. There is available on record reasonings to the issue of the formation of opinion and the same cannot but in the contextual facts is in accordance with the need of the situation. In that view of the matter, we are unable to accept the contentions in support of the Appeal.
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0
### Explanation:
9. In the wake of the aforesaid, question of acting beyond the jurisdiction or without jurisdiction in so far as the issuance of the order by Shri T.S. Gujral does not and cannot arise. Paragraph 6 of the allocation amply authorises Shri Gujral to exercise his powers thereunder and to pass appropriate orders in regard thereto on the basis of the recommendations of the High Power Committee. We do not see any infraction of law neither there is any exercise of power in contravention of rules or regulation or authorisation and in that view of the matter we are unable to record our concurrence with the submissions of theAs noted above, the High Court has not highlighted this aspect of the matter, though the same were brought to the notice the High Court, we do not know for what reasons, neither we intend to delve into it but the fact remains that the comment of the learned Advocate appearing of the Board during the course of hearing before this Court that the litigatious spirit of the petitioner has, in fact, brought into effect the exercise of jurisdiction of the writ court to a ludicrous extent. We do find some justification in the criticism of the learned Advocate for the Boardthe conduct of the PetitionerAppellant herein. The Petitioner has been, as noted above, from 1989 onwards engaged himself in the law courts rather than exerting himself in an effort to improve his capability as the employee of the Board so that the Board and the State obtain maximum benefit from out of the services of thebut unfortunately his litigatious spirit prevailed upon him and as noticed above we do find some justification as regards the comment made by the learned Advocate appearing for theourselves feel it expedient to record that the petitioner has become more a liability than an asset and in the event of there being such a situationan employee, the employer will be within its liberty to take appropriate steps including the cessation of relationship between the employer and the employee. The service conditions of the Boards employees also provide for Voluntary Retirement, a person of the nature of the petitioner, as more fully detailed herein before, cannot possibly be given any redress against the order of the Board for Voluntary Retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word `mala fide by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e. exactly what the High Court has done and that is the reason why the narration have been noted in this judgment in extenso. Tampering of the Annual Confidential Rolls have been alleged but there is no evidence in regard thereto or even to link up the two private respondents therewith. While it is true that the earlier relationship between an employer and employee or between the employees was that of mutual trust, confidence or welfare, presently the situation in general stands polluted and may be even one degree higher than the pollution of the environment, but that does not however clothe the court to come to a conclusion of mala fide without there being any basic evidence being made available to the court.On the facts narrated above, no reasonable man can come to a conclusion, which may even be remotely different from that of the appropriate authority of the Board. A right has been conferred on to the Board to take steps in public interest and in the event the Court comes to a conclusion that a right has not been properly exercised, there would not have been any hesitation to strike down the action of the State Electricity Board, but in the contextual facts, we do not find any. There is available on record reasonings to the issue of the formation of opinion and the same cannot but in the contextual facts is in accordance with the need of the situation. In that view of the matter, we are unable to accept the contentions in support of the Appeal.
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Shri M. P. Singh, Dy. Transport Commissioner,M.P., Gwalior Vs. Anand Transport Co.(P) Ltd. Etc | appears the authorities did take certain proceedings under Section 7 of the Act and in some cases accounts of the respondents were checked and their liability determined. When demand notices were sent and recoveries sought to be made the writ petitions were filed. The High Court did not go in these matters fully and treated all the petitions as if the facts were similar. 2. Section 3 of the Act which is the charging section provides that there shall be levied and paid to the State Government a tax on all passengers carded by stage carriages at a rate equivalent to 15 of the fare inclusive of the tax payable to the operator of a stage carriage. The tax has to be collected by the operator of a stage carriage and paid to the State Government in accordance with the provisions of the Act. Under S. 5 the operator must deliver to the tax officer or to such prescribed officer as may be specified a return in the prescribed form and manner either daily or at such intervals as may be prescribed. Section 6 lays down that the tax payable during any month in accordance with the return submitted under Section 5 shall be paid into a Government treasury by the operator and the receipt evidencing such payment has to be forwarded to the Tax Officer. Sections 8, 9 and 10 are in the following terms:- "(8) Fares escaping assessment- If, for any reason, the whole or any portion of the tax leviable under this Act, for any month has escaped assessment the Tax Officer may, at any time within, but not beyond, one year from the expiry of that month, assess the tax which has escaped assessment, after issuing a notice to the operator and making such inquiry as the officer may consider necessary. (9) Penalty for non-payment of tax. -Where the whole or any portion of the tax payable to the State Government in respect of any stage carriage for any month or portion thereof in pursuance of Ss. 6, 7 and 8 has not been paid to it in time the Tax Officer may, in his discretion, levy in addition to the tax so payable, a penalty not exceeding 25 per cent. of the maximum tax which would have been payable to the State Government if the stage carriage had carried its full complement of passengers during such month or portion thereof. (10) Recovery of tax, etc. - (1) In the cases referred to in Sections 7, 8 and 9 the Tax Officer shall serve on the operator a notice of demand for the sums payable to the State Government and the sums specified in such notice may be recovered from the operator as arrears of land revenue. (2) The tax shall be a first charge on the stage carriage in respect of which it is due as also on its accessories and such stage carriage and the accessories thereof may be attached and sold for the recovery of the tax under the appropriate law relating to the recovery of arrears of land revenue." 3. Section 12 provides for an appeal against a, notice of demand served under Section 10. 4. The scheme of the above provisions apparently is that the operator of a stage carriage has to submit a return in accordance with Section 5 and pay tax into the Government treasury every month as provided by Section 6.No. question can arise of any assessment order being made under Section 7 by the Tax Officer where the returns are found to be correct and complete. It is only where either no returns have been submitted or where the returns submitted appear to the Tax Officer to be incorrect or incomplete that the Tax Officer has to follow the procedure laid down in Section 7 and determine the tax payable by the operator. The High Court was of the view that even where returns had been filed and accepted as correct the Tax Officer has to pass a proper assessment order holding the operator liable for payment of tax in accordance with the return submitted by him. In other words no notice of demand can be issued until the Tax Officer makes such an order quantifying the amount of tax. 5. We are unable to accede to the contention which prevailed with the High Court that even where returns had been submitted but the tax has not been paid the Tax Officer is bound to make an order before serving a notice of demand even though the demand is strictly in accordance with the returns which have been submitted. Section 7 rules out any such course to be followed by the Tax Officer. It is only when the returns have not been submitted or when returns submitted are found to be incorrect and incomplete that the Tax Officer has to make an inquiry and determine the sum payable by the operator by way of tax. Similarly if there has been escapement of tax proceedings have to be taken under Section 8 and an order has to be made after an enquiry. The position would be same if penalty is sought to be levied under Section 9. But where returns have been accepted as correct nothing more need be done except to recover the tax due which has not been paid and no assessment order need be passed in view of the express language of S. 7. 6. We are satisfied that in the two appeals, i.e. C. As. 1449 and 1453/ 67 in which returns had been filed the Tax Officer was not bound to make any order quantifying the amount of tax before issuing the notice of demand. The amount sought to be realized was quantified in the returns themselves vide Form IV read with Rule 4 (2) (c) of the M. P. Motor Vehicles (Taxation of Passengers) Rules. It has not been shown that any penalty was sought to be imposed in those two cases. | 0[ds]5. We are unable to accede to the contention which prevailed with the High Court that even where returns had been submitted but the tax has not been paid the Tax Officer is bound to make an order before serving a notice of demand even though the demand is strictly in accordance with the returns which have been submitted. Section 7 rules out any such course to be followed by the Tax Officer. It is only when the returns have not been submitted or when returns submitted are found to be incorrect and incomplete that the Tax Officer has to make an inquiry and determine the sum payable by the operator by way of tax. Similarly if there has been escapement of tax proceedings have to be taken under Section 8 and an order has to be made after an enquiry. The position would be same if penalty is sought to be levied under Section 9. But where returns have been accepted as correct nothing more need be done except to recover the tax due which has not been paid and no assessment order need be passed in view of the express language of S. 77. As regards C. As. Nos, 1450, 1451, 1452 and 1454/67, it appears, as has been stated earlier, that some proceedings were held of the nature contemplated by Section 7 and the notices of demand were issued after orders had been duly made by the Tax Officer. But this is a matter which was not examined in each case by the High Court and we would like to express no opinion with regard to it. | 0 | 1,256 | 290 | ### 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:
appears the authorities did take certain proceedings under Section 7 of the Act and in some cases accounts of the respondents were checked and their liability determined. When demand notices were sent and recoveries sought to be made the writ petitions were filed. The High Court did not go in these matters fully and treated all the petitions as if the facts were similar. 2. Section 3 of the Act which is the charging section provides that there shall be levied and paid to the State Government a tax on all passengers carded by stage carriages at a rate equivalent to 15 of the fare inclusive of the tax payable to the operator of a stage carriage. The tax has to be collected by the operator of a stage carriage and paid to the State Government in accordance with the provisions of the Act. Under S. 5 the operator must deliver to the tax officer or to such prescribed officer as may be specified a return in the prescribed form and manner either daily or at such intervals as may be prescribed. Section 6 lays down that the tax payable during any month in accordance with the return submitted under Section 5 shall be paid into a Government treasury by the operator and the receipt evidencing such payment has to be forwarded to the Tax Officer. Sections 8, 9 and 10 are in the following terms:- "(8) Fares escaping assessment- If, for any reason, the whole or any portion of the tax leviable under this Act, for any month has escaped assessment the Tax Officer may, at any time within, but not beyond, one year from the expiry of that month, assess the tax which has escaped assessment, after issuing a notice to the operator and making such inquiry as the officer may consider necessary. (9) Penalty for non-payment of tax. -Where the whole or any portion of the tax payable to the State Government in respect of any stage carriage for any month or portion thereof in pursuance of Ss. 6, 7 and 8 has not been paid to it in time the Tax Officer may, in his discretion, levy in addition to the tax so payable, a penalty not exceeding 25 per cent. of the maximum tax which would have been payable to the State Government if the stage carriage had carried its full complement of passengers during such month or portion thereof. (10) Recovery of tax, etc. - (1) In the cases referred to in Sections 7, 8 and 9 the Tax Officer shall serve on the operator a notice of demand for the sums payable to the State Government and the sums specified in such notice may be recovered from the operator as arrears of land revenue. (2) The tax shall be a first charge on the stage carriage in respect of which it is due as also on its accessories and such stage carriage and the accessories thereof may be attached and sold for the recovery of the tax under the appropriate law relating to the recovery of arrears of land revenue." 3. Section 12 provides for an appeal against a, notice of demand served under Section 10. 4. The scheme of the above provisions apparently is that the operator of a stage carriage has to submit a return in accordance with Section 5 and pay tax into the Government treasury every month as provided by Section 6.No. question can arise of any assessment order being made under Section 7 by the Tax Officer where the returns are found to be correct and complete. It is only where either no returns have been submitted or where the returns submitted appear to the Tax Officer to be incorrect or incomplete that the Tax Officer has to follow the procedure laid down in Section 7 and determine the tax payable by the operator. The High Court was of the view that even where returns had been filed and accepted as correct the Tax Officer has to pass a proper assessment order holding the operator liable for payment of tax in accordance with the return submitted by him. In other words no notice of demand can be issued until the Tax Officer makes such an order quantifying the amount of tax. 5. We are unable to accede to the contention which prevailed with the High Court that even where returns had been submitted but the tax has not been paid the Tax Officer is bound to make an order before serving a notice of demand even though the demand is strictly in accordance with the returns which have been submitted. Section 7 rules out any such course to be followed by the Tax Officer. It is only when the returns have not been submitted or when returns submitted are found to be incorrect and incomplete that the Tax Officer has to make an inquiry and determine the sum payable by the operator by way of tax. Similarly if there has been escapement of tax proceedings have to be taken under Section 8 and an order has to be made after an enquiry. The position would be same if penalty is sought to be levied under Section 9. But where returns have been accepted as correct nothing more need be done except to recover the tax due which has not been paid and no assessment order need be passed in view of the express language of S. 7. 6. We are satisfied that in the two appeals, i.e. C. As. 1449 and 1453/ 67 in which returns had been filed the Tax Officer was not bound to make any order quantifying the amount of tax before issuing the notice of demand. The amount sought to be realized was quantified in the returns themselves vide Form IV read with Rule 4 (2) (c) of the M. P. Motor Vehicles (Taxation of Passengers) Rules. It has not been shown that any penalty was sought to be imposed in those two cases.
### Response:
0
### Explanation:
5. We are unable to accede to the contention which prevailed with the High Court that even where returns had been submitted but the tax has not been paid the Tax Officer is bound to make an order before serving a notice of demand even though the demand is strictly in accordance with the returns which have been submitted. Section 7 rules out any such course to be followed by the Tax Officer. It is only when the returns have not been submitted or when returns submitted are found to be incorrect and incomplete that the Tax Officer has to make an inquiry and determine the sum payable by the operator by way of tax. Similarly if there has been escapement of tax proceedings have to be taken under Section 8 and an order has to be made after an enquiry. The position would be same if penalty is sought to be levied under Section 9. But where returns have been accepted as correct nothing more need be done except to recover the tax due which has not been paid and no assessment order need be passed in view of the express language of S. 77. As regards C. As. Nos, 1450, 1451, 1452 and 1454/67, it appears, as has been stated earlier, that some proceedings were held of the nature contemplated by Section 7 and the notices of demand were issued after orders had been duly made by the Tax Officer. But this is a matter which was not examined in each case by the High Court and we would like to express no opinion with regard to it.
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BENGAL CHEMICALS AND PHARMACEUTICALS LTD Vs. AJIT NAIN | Being aggrieved, respondent No.1 challenged the notice dated 23.05.2018 and filed a second writ petition being WP No.7934(W) of 2018 before the High Court of Calcutta. The Single Judge of the High Court vide order dated 19.06.2018 dismissed the writ petition by extending the time to file the show cause to the notices.10. Being aggrieved by the dismissal of the writ petition, respondent No.1 filed an appeal in MAT No.586 of 2018. No stay was granted by the Division Bench in the said appeal nor any direction was issued by the High Court not to proceed with the hearing of the eviction proceedings. As there was no stay granted by the Division Bench in MAT No.586 of 2018, the Estate Officer proceeded with the eviction proceedings. The Estate Officer granted as much as five further hearings dated 29.06.2018, 17.07.2018, 27.07.2018, 07.08.2018 and 21.08.2018. The Estate Officer vide order dated 01.10.2018 passed the eviction order directing respondent No.1 to vacate the premises within a week from the date of the eviction order. By the said order dated 01.10.2018, the Estate Officer assessed the damages and interest at Rs.4,61,63,624/- payable by respondent No.1 (Damages Rs.3,30,33,000/- plus interest at Rs.1,31,30,624/-).11. Being aggrieved by the order of eviction, respondent No.1 filed an application being CAN No.9489 of 2018. The High Court vide impugned order set aside the order dated 01.10.2018 passed by the Estate Officer and remitted the matter to the Estate Officer to consider the matter afresh in accordance with law. Being aggrieved, appellant No.1-Bengal Chemicals and Pharmaceuticals Limited has filed these appeals. Respondent No.1 entered appearance and filed a detailed counter affidavit.12. We have heard Mr. Sarad Kumar Singhania, learned counsel appearing for the appellants and Mr. Biswaroop Bhattacharya, learned counsel appearing for respondent No.1. We have perused the impugned judgment and other materials on record and carefully considered the matter.13. The learned counsel appearing for the appellants has submitted that respondent No.1 is running a school in the premises comprising of 6500 sq. ft. with open space measuring 2575.13 sq. ft. and respondent No.1 is enjoying the property for commercial purpose of running the school since 01.06.2014 without payment of any rent which is calculated approximately Rs.4.61 crores as assessed by the Estate Officer which is payable to appellant No.1. It was submitted that since respondent No.1 has not paid the rent, the Estate Officer rightly concluded that respondent No.1 is an unauthorized occupant and passed the order under Section 5(1) and sub-section (2) and (2A) of Section 7 of the Act. It was further urged that respondent No.1 has the right to file an appeal against the order dated 01.10.2018 passed by the Estate Officer under the provisions of Section 9 of the Act only before the Appellate Court that is the District Judge of the district and the writ petition filed is not maintainable.14. The learned counsel appearing for respondent No.1 has submitted that by taking judicial notice of the fact of involvement of the previous Estate Officer in the eviction proceedings, the High Court has rightly set aside the order of eviction dated 01.10.2018 passed by the Estate Officer. It was submitted that no sufficient opportunity was afforded to respondent No.1 and the quantum of damages fixed by the Estate Officer is arbitrary and therefore, respondent No.1 is justified in challenging the order of the Estate Officer before the High Court in the pending appeal. The learned counsel further submitted that a rent of Rs.21/- per sq. ft. cannot all of a sudden become Rs.50/- per sq. ft. without any rhyme or reason and respondent No.1 has always been ready to pay a reasonable rent and not a rent which is unilaterally imposed on him. It was further submitted that in compliance with the order of the High Court dated 17.01.2018, respondent No.1 has deposited Rs.25,00,000/- and also paid the electricity charges which shows the bona fide of respondent-tenant.15. In the nature of the order which we propose to pass, we are not inclined to go into the merits of the rival contentions of the parties. Admittedly, the lease has come to an end on 31.05.2014 by efflux of time. According to respondent No.1, the meeting was held on 20.05.2014 in the office of appellant No.1 and there was discussion on the question of renewal of lease. It is stated that appellant No.1 has forwarded a letter on 30.05.2014 to respondent No.1 for further renewal of lease subject to the acceptance of the terms:- (i) from June 20, 2014, the rent of the covered space as well as the open space shall be at Rs.50/- per sq. ft. subject to increase of 10% for every two years; (ii) the tenure of the agreement will be three years and thereafter, the agreement may be renewed for further period upon mutual discussion between the parties. The terms proposed by appellant No.1 in the said letter dated 30.05.2014 was not agreeable to respondent No.1. According to respondent No.1, as per the terms of the lease, the rent payable was only Rs.1,42,656/- per month.16. Be that as it may, admittedly, from 01.06.2014, respondent No.1 has not paid the rent except the amount of Rs.25,00,000/- which he has deposited in compliance with the order of the High Court dated 17.01.2018. In the proceeding before the Estate Officer, respondent No.1 has not put forth his defence; respondent No.1 was only taking adjournments on the ground of pendency of the appeal before the High Court in MAT No.586 of 2018. In our view, sufficient opportunity has to be given to respondent No.1 and the order of the High Court remitting the matter to the Estate Officer therefore, has to be maintained, however, subject to respondent No.1 paying the reasonable amount as damages by way of interim measure for use and occupation. As pointed out earlier, respondent No.1 is in occupation of land and building measuring 6500 sq. ft. consisting of three storied building plus open space of 2575.13 sq. ft. in Maniktala Main Road, Kolkata. | 1[ds]15. In the nature of the order which we propose to pass, we are not inclined to go into the merits of the rival contentions of the parties. Admittedly, the lease has come to an end on 31.05.2014 by efflux of time. According to respondent No.1, the meeting was held on 20.05.2014 in the office of appellant No.1 and there was discussion on the question of renewal of lease. It is stated that appellant No.1 has forwarded a letter on 30.05.2014 to respondent No.1 for further renewal of lease subject to the acceptance of the terms:- (i) from June 20, 2014, the rent of the covered space as well as the open space shall be at Rs.50/- per sq. ft. subject to increase of 10% for every two years; (ii) the tenure of the agreement will be three years and thereafter, the agreement may be renewed for further period upon mutual discussion between the parties. The terms proposed by appellant No.1 in the said letter dated 30.05.2014 was not agreeable to respondent No.1. According to respondent No.1, as per the terms of the lease, the rent payable was only Rs.1,42,656/- per month.16. Be that as it may, admittedly, from 01.06.2014, respondent No.1 has not paid the rent except the amount of Rs.25,00,000/- which he has deposited in compliance with the order of the High Court dated 17.01.2018. In the proceeding before the Estate Officer, respondent No.1 has not put forth his defence; respondent No.1 was only taking adjournments on the ground of pendency of the appeal before the High Court in MAT No.586 of 2018. In our view, sufficient opportunity has to be given to respondent No.1 and the order of the High Court remitting the matter to the Estate Officer therefore, has to be maintained, however, subject to respondent No.1 paying the reasonable amount as damages by way of interim measure for use and occupation. As pointed out earlier, respondent No.1 is in occupation of land and building measuring 6500 sq. ft. consisting of three storied building plus open space of 2575.13 sq. ft. in Maniktala Main Road, Kolkata. | 1 | 1,764 | 395 | ### 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:
Being aggrieved, respondent No.1 challenged the notice dated 23.05.2018 and filed a second writ petition being WP No.7934(W) of 2018 before the High Court of Calcutta. The Single Judge of the High Court vide order dated 19.06.2018 dismissed the writ petition by extending the time to file the show cause to the notices.10. Being aggrieved by the dismissal of the writ petition, respondent No.1 filed an appeal in MAT No.586 of 2018. No stay was granted by the Division Bench in the said appeal nor any direction was issued by the High Court not to proceed with the hearing of the eviction proceedings. As there was no stay granted by the Division Bench in MAT No.586 of 2018, the Estate Officer proceeded with the eviction proceedings. The Estate Officer granted as much as five further hearings dated 29.06.2018, 17.07.2018, 27.07.2018, 07.08.2018 and 21.08.2018. The Estate Officer vide order dated 01.10.2018 passed the eviction order directing respondent No.1 to vacate the premises within a week from the date of the eviction order. By the said order dated 01.10.2018, the Estate Officer assessed the damages and interest at Rs.4,61,63,624/- payable by respondent No.1 (Damages Rs.3,30,33,000/- plus interest at Rs.1,31,30,624/-).11. Being aggrieved by the order of eviction, respondent No.1 filed an application being CAN No.9489 of 2018. The High Court vide impugned order set aside the order dated 01.10.2018 passed by the Estate Officer and remitted the matter to the Estate Officer to consider the matter afresh in accordance with law. Being aggrieved, appellant No.1-Bengal Chemicals and Pharmaceuticals Limited has filed these appeals. Respondent No.1 entered appearance and filed a detailed counter affidavit.12. We have heard Mr. Sarad Kumar Singhania, learned counsel appearing for the appellants and Mr. Biswaroop Bhattacharya, learned counsel appearing for respondent No.1. We have perused the impugned judgment and other materials on record and carefully considered the matter.13. The learned counsel appearing for the appellants has submitted that respondent No.1 is running a school in the premises comprising of 6500 sq. ft. with open space measuring 2575.13 sq. ft. and respondent No.1 is enjoying the property for commercial purpose of running the school since 01.06.2014 without payment of any rent which is calculated approximately Rs.4.61 crores as assessed by the Estate Officer which is payable to appellant No.1. It was submitted that since respondent No.1 has not paid the rent, the Estate Officer rightly concluded that respondent No.1 is an unauthorized occupant and passed the order under Section 5(1) and sub-section (2) and (2A) of Section 7 of the Act. It was further urged that respondent No.1 has the right to file an appeal against the order dated 01.10.2018 passed by the Estate Officer under the provisions of Section 9 of the Act only before the Appellate Court that is the District Judge of the district and the writ petition filed is not maintainable.14. The learned counsel appearing for respondent No.1 has submitted that by taking judicial notice of the fact of involvement of the previous Estate Officer in the eviction proceedings, the High Court has rightly set aside the order of eviction dated 01.10.2018 passed by the Estate Officer. It was submitted that no sufficient opportunity was afforded to respondent No.1 and the quantum of damages fixed by the Estate Officer is arbitrary and therefore, respondent No.1 is justified in challenging the order of the Estate Officer before the High Court in the pending appeal. The learned counsel further submitted that a rent of Rs.21/- per sq. ft. cannot all of a sudden become Rs.50/- per sq. ft. without any rhyme or reason and respondent No.1 has always been ready to pay a reasonable rent and not a rent which is unilaterally imposed on him. It was further submitted that in compliance with the order of the High Court dated 17.01.2018, respondent No.1 has deposited Rs.25,00,000/- and also paid the electricity charges which shows the bona fide of respondent-tenant.15. In the nature of the order which we propose to pass, we are not inclined to go into the merits of the rival contentions of the parties. Admittedly, the lease has come to an end on 31.05.2014 by efflux of time. According to respondent No.1, the meeting was held on 20.05.2014 in the office of appellant No.1 and there was discussion on the question of renewal of lease. It is stated that appellant No.1 has forwarded a letter on 30.05.2014 to respondent No.1 for further renewal of lease subject to the acceptance of the terms:- (i) from June 20, 2014, the rent of the covered space as well as the open space shall be at Rs.50/- per sq. ft. subject to increase of 10% for every two years; (ii) the tenure of the agreement will be three years and thereafter, the agreement may be renewed for further period upon mutual discussion between the parties. The terms proposed by appellant No.1 in the said letter dated 30.05.2014 was not agreeable to respondent No.1. According to respondent No.1, as per the terms of the lease, the rent payable was only Rs.1,42,656/- per month.16. Be that as it may, admittedly, from 01.06.2014, respondent No.1 has not paid the rent except the amount of Rs.25,00,000/- which he has deposited in compliance with the order of the High Court dated 17.01.2018. In the proceeding before the Estate Officer, respondent No.1 has not put forth his defence; respondent No.1 was only taking adjournments on the ground of pendency of the appeal before the High Court in MAT No.586 of 2018. In our view, sufficient opportunity has to be given to respondent No.1 and the order of the High Court remitting the matter to the Estate Officer therefore, has to be maintained, however, subject to respondent No.1 paying the reasonable amount as damages by way of interim measure for use and occupation. As pointed out earlier, respondent No.1 is in occupation of land and building measuring 6500 sq. ft. consisting of three storied building plus open space of 2575.13 sq. ft. in Maniktala Main Road, Kolkata.
### Response:
1
### Explanation:
15. In the nature of the order which we propose to pass, we are not inclined to go into the merits of the rival contentions of the parties. Admittedly, the lease has come to an end on 31.05.2014 by efflux of time. According to respondent No.1, the meeting was held on 20.05.2014 in the office of appellant No.1 and there was discussion on the question of renewal of lease. It is stated that appellant No.1 has forwarded a letter on 30.05.2014 to respondent No.1 for further renewal of lease subject to the acceptance of the terms:- (i) from June 20, 2014, the rent of the covered space as well as the open space shall be at Rs.50/- per sq. ft. subject to increase of 10% for every two years; (ii) the tenure of the agreement will be three years and thereafter, the agreement may be renewed for further period upon mutual discussion between the parties. The terms proposed by appellant No.1 in the said letter dated 30.05.2014 was not agreeable to respondent No.1. According to respondent No.1, as per the terms of the lease, the rent payable was only Rs.1,42,656/- per month.16. Be that as it may, admittedly, from 01.06.2014, respondent No.1 has not paid the rent except the amount of Rs.25,00,000/- which he has deposited in compliance with the order of the High Court dated 17.01.2018. In the proceeding before the Estate Officer, respondent No.1 has not put forth his defence; respondent No.1 was only taking adjournments on the ground of pendency of the appeal before the High Court in MAT No.586 of 2018. In our view, sufficient opportunity has to be given to respondent No.1 and the order of the High Court remitting the matter to the Estate Officer therefore, has to be maintained, however, subject to respondent No.1 paying the reasonable amount as damages by way of interim measure for use and occupation. As pointed out earlier, respondent No.1 is in occupation of land and building measuring 6500 sq. ft. consisting of three storied building plus open space of 2575.13 sq. ft. in Maniktala Main Road, Kolkata.
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Commissioner Of Income-Tax, Calcutta Vs. Bidhu Bhushan Sarkar (Dead) Through His Legal Representati | notice under S. 22 (2), issued a notice under S. 23 (2), and again, after obtaining the permission of the Commissioner to issue a notice under S. 34, he issued a notice under S. 23 (2), and failed to issue any notice under S. 34. Thereafter, the Income-tax Officer made the following order:"Return has been filed under S. 34 claiming a loss of Rs. 74,140 only. Since I find that no income has escaped assessment proceedings under Section 34 are dropped." In these circumstances, the High Court held that as there was a valid return voluntary filed by the assessee, the order of the Income-tax Officer was invalid and bad in law. There was no provision by which the Income-tax Officer could refuse to assess the loss shown in the return, especially when he had actually issued a notice under S. 23 (2) after the return had been made. It was urged before us that, on the principle laid down in that case, the order made by the A. I. T. O. directing that the case be filed must be held to be an invalid order as it was essential that he should have passed an order assessing the income and then determining the tax payable under S. 23, even if the result of the determination was that the tax payable was nil. Even if it be accepted that the order made by the A. I. T. O. in the present case was invalid, its effect cannot be that the proceedings before the A. I. T. O. must be held to have continued after that order was made by him. Even an invalid order terminating proceedings has the effect of terminating them; and in such a case, the appropriate method for correcting the illegality committed is to have that order vacated by appellate or other higher authorities having jurisdiction to intervene. As long as the order is not set aside, it remains in force and takes full effect. The order was not totally without jurisdiction; at best, it was an order not contemplated by law and it could not be treated as a non-existent order. In the present case also, the order of the A. I. T. O. direction that the case be field could have been set right on appeal, or by a reference to the High Court, in case the Tribunal refused to correct it. While it was not set aside, the only conclusion possible is that the proceedings before the A. I. T. O. terminated and did not any longer continue to remain pending. 11. The High Court, in dealing with this question, proceeded on the further basis that when the order of transfer was made by the Commissioner of Income-tax on 30th December. 1955, this proceeding must have been treated as pending, because, otherwise, the order of transfer would not relate to any pending case at all. The High Court held: Therefore when the transfer of the case was made under S. 5 (7-A), it cannot be said that the notice issued by the Additional Officer had been wiped out or did not remain alive. If there was no case, there could not be any transfer of the case". We are unable to accept the view of the High Court that an order of transfer could not have been made unless some specific proceeding for assessment of the assessee to tax was actually pending. The explanation to S. 5 (7-A) makes it clear that the word "case", in relation to any person whose name is specified in the order of transfer, means all proceedings under the Act in respect of any year which may be pending on the date of the transfer, and also includes all proceedings under the Act which may be commenced after the date of the transfer in respect of any year. The word case is thus used in a comprehensive sense of including both pending proceedings as well as proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there be no proceedings pending for assessment of tax and the purpose of the transfer may simply be that all future proceedings are to take place before the officer to whom the case of the assessee is transferred. In the present case, the proceedings on the notice dated 23rd February, 1950, had already been terminated by the A. I. T. O. by his order directing that the case be filed Consequently, the effect of the order of transfer was that all the records relating to the assessment of the assessee had to be sent to the P. I. T. O., and this was with the object that, in future, all proceedings relating to assessment of this assessee were to be taken by the P. I. T. O. and not the A. I. T. O. The order does not necessarily indicate that those proceedings which the A. I. T. O. had actually terminated were still to be treated as pending and to stand transferred as pending proceedings. 12. Since the case of the assessee was transferred to the P. I. T. O. at the stage when no proceeding was pending before the A. I. T. O., the P. I. T. O. became seized of the jurisdiction to take any proceedings against the assessee which the law permitted. It was clearly in exercise of this jurisdiction that the P. I. T. O. issued the subsequent notice dated 11th February, 1956. That notice was, therefore, competently issued by him and was also valid, because it was issued before the expiry of eight years from the end of the relevant assessment year 1947-48.The notice having been issued validly within the period of limitation permitted by S. 34(3), the actual order of assessment could be made validly before the expiry of the period of one year from the date of the notice. The order of assessment dated 2nd May, 1956, was consequently a valid order and was not barred by time. | 1[ds]5. It appears in this case that at one stage there was a contest between the parties as to whether the notice dated 23rd February, 1950 was validly issued under S. 34 or not. Even before the High Court it seems that some attempt was made on behalf of the assessee to raise the question that the notice dated 23rd February, 1950 under S. 34 was invalid on the ground that it was issued without completing the assessment on the voluntary returns submitted on December 22, 1947 and March 31, 1949. On behalf of the Commissioner, the contention before the High Court was that on the question referred to the Court it was not open to the assessee to raise this contention. The objection raised by the Commissioner was rightly accepted by the High Court. It is plain from the two questions referred to the High Court that the High Court was not celled upon to express any opinion about the validity of the notice dated 23rd February, 1950. The first question referred to the Court it was not open to the assessee to raise this whether, in view of the fact that proceedings commenced by the A. I. T. O. on the basis of notice dated 23rd February, 1950 were merely filed, the notice under S. 34 issued by the P. I. T. O. and the assessment based on it were valid in law. The only other question was whether the order of assessment dated 2nd May, 1956 made by the P. I. T. O. was barred by time. Neither of these questions enlarged the scope of the reference before the High Court so as to permit it to examine the validity of the notice dated 23rd February, 1950, and the Court, therefore, was right in refusing to go into this questionThe intention has to be inferred from all the surrounding circumstances in which the order was made. At the time when this case came up before him on 4th February, 1952, the A. I. T. O. was expecting a return to be filed by the assessee in response to the notice which had been issued by him under S. 34. A constituted attorney appeared for the assessee and requested that the return already filed on the 22nd December, 1947 may be treated as the return submitted in response to the notice. The A. I. T. O. noted this fact.Further, it appears that he was already aware that another proceeding on the basis of a voluntary return was pending before the P. I. T. O., and consequently, in his order he recorded his opinion that the income (referring to the income to which the voluntary return dated 22nd December, 1947 related) should be taken in the assessment of the military contract income for which there was another file. This remark recorded by him in his order gives clear indication that he felt at that stage that it would not be right for him to continue the proceedings which were pending before him, obviously because another proceeding for assessment of the same assessee was pending before his senior Officer viz., the P. I. T. O. He, therefore, ordered the case to be filed. In making this order, the only intention the A. I. T. O. could have was that the proceedings before him should no longer remain in existence as being unnecessary proceedings. The very income which he was called upon to assess to tax was to be taken into account by his senior officer and, therefore, he felt that he should not continue simultaneous proceedings for the same purpose as the proceedings before his senior Officer. In ordering that the case be filed, therefore, he clearly intended that the proceedings before him should be terminated or dropped. There is no indication in the order that what the A. I. T. O. intended was that the proceedings before him should continue to remain pending and should be dealt with by him at subsequent stage. In fact, if the A. I. T. O. had thought that those proceedings before him had to continue and he did not want any conflict with his senior officer, the order that ha would have made in the circumstances before him was that these proceedings be also submitted to the P. I. T. O. He seems to have considered it unnecessary to do so, because hits opinion was that, in the assessment proceedings going on before the P. I. T. O., the income to which the proceedings before him related would also be included, so that there was no need for any proceedings remaining in existence before him. The intention, thus, clearly was to drop the proceedings and not to continue them any further. Of course, he could have expressed his intention more clearly by saying that he was cancelling the proceedings before him, or was terminating them. We think that the learned counsel for the Commissioner has rightly contended that, in the circumstances of this case, the word "filed" should be interpreted as being equivalent to "disposed of", so that after that order, no proceedings on the basis of notice dated 23rd February, 1950 remained pending before the A. I. T. O. In effect, therefore, what he did was to terminate the proceedings before him without making any order of assessment, on the ground that the order of assessment in respect of the income in question would be made by the P. I. T. O. in the proceedings before himIn the case before us, the order directing that the case be filed has to be similarly interpreted in the circumstances in which it was passed, and as we have indicated above, the only proper interpretation is that the A. I. T. O. intended to conclude the proceedings before himself in view of the fact that proceedings were going on before his senior officerIn these circumstances, the High Court held that as there was a valid return voluntary filed by the assessee, the order of the Income-tax Officer was invalid and bad in law. There was no provision by which the Income-tax Officer could refuse to assess the loss shown in the return, especially when he had actually issued a notice under S. 23 (2) after the return had been made. It was urged before us that, on the principle laid down in that case, the order made by the A. I. T. O. directing that the case be filed must be held to be an invalid order as it was essential that he should have passed an order assessing the income and then determining the tax payable under S. 23, even if the result of the determination was that the tax payable was nil. Even if it be accepted that the order made by the A. I. T. O. in the present case was invalid, its effect cannot be that the proceedings before the A. I. T. O. must be held to have continued after that order was made by him. Even an invalid order terminating proceedings has the effect of terminating them; and in such a case, the appropriate method for correcting the illegality committed is to have that order vacated by appellate or other higher authorities having jurisdiction to intervene. As long as the order is not set aside, it remains in force and takes full effect. The order was not totally without jurisdiction; at best, it was an order not contemplated by law and it could not be treated as a non-existent order. In the present case also, the order of the A. I. T. O. direction that the case be field could have been set right on appeal, or by a reference to the High Court, in case the Tribunal refused to correct it. While it was not set aside, the only conclusion possible is that the proceedings before the A. I. T. O. terminated and did not any longer continue to remain pending11. The High Court, in dealing with this question, proceeded on the further basis that when the order of transfer was made by the Commissioner of Income-tax on 30th December. 1955, this proceeding must have been treated as pending, because, otherwise, the order of transfer would not relate to any pending case at all. The High Court held: Therefore when the transfer of the case was made under S. 5 (7-A), it cannot be said that the notice issued by the Additional Officer had been wiped out or did not remain alive. If there was no case, there could not be any transfer of the case". We are unable to accept the view of the High Court that an order of transfer could not have been made unless some specific proceeding for assessment of the assessee to tax was actually pending. The explanation to S. 5 (7-A) makes it clear that the word "case", in relation to any person whose name is specified in the order of transfer, means all proceedings under the Act in respect of any year which may be pending on the date of the transfer, and also includes all proceedings under the Act which may be commenced after the date of the transfer in respect of any year. The word case is thus used in a comprehensive sense of including both pending proceedings as well as proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there be no proceedings pending for assessment of tax and the purpose of the transfer may simply be that all future proceedings are to take place before the officer to whom the case of the assessee is transferred. In the present case, the proceedings on the notice dated 23rd February, 1950, had already been terminated by the A. I. T. O. by his order directing that the case be filed Consequently, the effect of the order of transfer was that all the records relating to the assessment of the assessee had to be sent to the P. I. T. O., and this was with the object that, in future, all proceedings relating to assessment of this assessee were to be taken by the P. I. T. O. and not the A. I. T. O. The order does not necessarily indicate that those proceedings which the A. I. T. O. had actually terminated were still to be treated as pending and to stand transferred as pending proceedings12. Since the case of the assessee was transferred to the P. I. T. O. at the stage when no proceeding was pending before the A. I. T. O., the P. I. T. O. became seized of the jurisdiction to take any proceedings against the assessee which the law permitted. It was clearly in exercise of this jurisdiction that the P. I. T. O. issued the subsequent notice dated 11th February, 1956. That notice was, therefore, competently issued by him and was also valid, because it was issued before the expiry of eight years from the end of the relevant assessment year 1947-48.The notice having been issued validly within the period of limitation permitted by S. 34(3), the actual order of assessment could be made validly before the expiry of the period of one year from the date of the notice. The order of assessment dated 2nd May, 1956, was consequently a valid order and was not barred by time. | 1 | 4,250 | 2,059 | ### 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:
notice under S. 22 (2), issued a notice under S. 23 (2), and again, after obtaining the permission of the Commissioner to issue a notice under S. 34, he issued a notice under S. 23 (2), and failed to issue any notice under S. 34. Thereafter, the Income-tax Officer made the following order:"Return has been filed under S. 34 claiming a loss of Rs. 74,140 only. Since I find that no income has escaped assessment proceedings under Section 34 are dropped." In these circumstances, the High Court held that as there was a valid return voluntary filed by the assessee, the order of the Income-tax Officer was invalid and bad in law. There was no provision by which the Income-tax Officer could refuse to assess the loss shown in the return, especially when he had actually issued a notice under S. 23 (2) after the return had been made. It was urged before us that, on the principle laid down in that case, the order made by the A. I. T. O. directing that the case be filed must be held to be an invalid order as it was essential that he should have passed an order assessing the income and then determining the tax payable under S. 23, even if the result of the determination was that the tax payable was nil. Even if it be accepted that the order made by the A. I. T. O. in the present case was invalid, its effect cannot be that the proceedings before the A. I. T. O. must be held to have continued after that order was made by him. Even an invalid order terminating proceedings has the effect of terminating them; and in such a case, the appropriate method for correcting the illegality committed is to have that order vacated by appellate or other higher authorities having jurisdiction to intervene. As long as the order is not set aside, it remains in force and takes full effect. The order was not totally without jurisdiction; at best, it was an order not contemplated by law and it could not be treated as a non-existent order. In the present case also, the order of the A. I. T. O. direction that the case be field could have been set right on appeal, or by a reference to the High Court, in case the Tribunal refused to correct it. While it was not set aside, the only conclusion possible is that the proceedings before the A. I. T. O. terminated and did not any longer continue to remain pending. 11. The High Court, in dealing with this question, proceeded on the further basis that when the order of transfer was made by the Commissioner of Income-tax on 30th December. 1955, this proceeding must have been treated as pending, because, otherwise, the order of transfer would not relate to any pending case at all. The High Court held: Therefore when the transfer of the case was made under S. 5 (7-A), it cannot be said that the notice issued by the Additional Officer had been wiped out or did not remain alive. If there was no case, there could not be any transfer of the case". We are unable to accept the view of the High Court that an order of transfer could not have been made unless some specific proceeding for assessment of the assessee to tax was actually pending. The explanation to S. 5 (7-A) makes it clear that the word "case", in relation to any person whose name is specified in the order of transfer, means all proceedings under the Act in respect of any year which may be pending on the date of the transfer, and also includes all proceedings under the Act which may be commenced after the date of the transfer in respect of any year. The word case is thus used in a comprehensive sense of including both pending proceedings as well as proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there be no proceedings pending for assessment of tax and the purpose of the transfer may simply be that all future proceedings are to take place before the officer to whom the case of the assessee is transferred. In the present case, the proceedings on the notice dated 23rd February, 1950, had already been terminated by the A. I. T. O. by his order directing that the case be filed Consequently, the effect of the order of transfer was that all the records relating to the assessment of the assessee had to be sent to the P. I. T. O., and this was with the object that, in future, all proceedings relating to assessment of this assessee were to be taken by the P. I. T. O. and not the A. I. T. O. The order does not necessarily indicate that those proceedings which the A. I. T. O. had actually terminated were still to be treated as pending and to stand transferred as pending proceedings. 12. Since the case of the assessee was transferred to the P. I. T. O. at the stage when no proceeding was pending before the A. I. T. O., the P. I. T. O. became seized of the jurisdiction to take any proceedings against the assessee which the law permitted. It was clearly in exercise of this jurisdiction that the P. I. T. O. issued the subsequent notice dated 11th February, 1956. That notice was, therefore, competently issued by him and was also valid, because it was issued before the expiry of eight years from the end of the relevant assessment year 1947-48.The notice having been issued validly within the period of limitation permitted by S. 34(3), the actual order of assessment could be made validly before the expiry of the period of one year from the date of the notice. The order of assessment dated 2nd May, 1956, was consequently a valid order and was not barred by time.
### Response:
1
### Explanation:
in respect of the income in question would be made by the P. I. T. O. in the proceedings before himIn the case before us, the order directing that the case be filed has to be similarly interpreted in the circumstances in which it was passed, and as we have indicated above, the only proper interpretation is that the A. I. T. O. intended to conclude the proceedings before himself in view of the fact that proceedings were going on before his senior officerIn these circumstances, the High Court held that as there was a valid return voluntary filed by the assessee, the order of the Income-tax Officer was invalid and bad in law. There was no provision by which the Income-tax Officer could refuse to assess the loss shown in the return, especially when he had actually issued a notice under S. 23 (2) after the return had been made. It was urged before us that, on the principle laid down in that case, the order made by the A. I. T. O. directing that the case be filed must be held to be an invalid order as it was essential that he should have passed an order assessing the income and then determining the tax payable under S. 23, even if the result of the determination was that the tax payable was nil. Even if it be accepted that the order made by the A. I. T. O. in the present case was invalid, its effect cannot be that the proceedings before the A. I. T. O. must be held to have continued after that order was made by him. Even an invalid order terminating proceedings has the effect of terminating them; and in such a case, the appropriate method for correcting the illegality committed is to have that order vacated by appellate or other higher authorities having jurisdiction to intervene. As long as the order is not set aside, it remains in force and takes full effect. The order was not totally without jurisdiction; at best, it was an order not contemplated by law and it could not be treated as a non-existent order. In the present case also, the order of the A. I. T. O. direction that the case be field could have been set right on appeal, or by a reference to the High Court, in case the Tribunal refused to correct it. While it was not set aside, the only conclusion possible is that the proceedings before the A. I. T. O. terminated and did not any longer continue to remain pending11. The High Court, in dealing with this question, proceeded on the further basis that when the order of transfer was made by the Commissioner of Income-tax on 30th December. 1955, this proceeding must have been treated as pending, because, otherwise, the order of transfer would not relate to any pending case at all. The High Court held: Therefore when the transfer of the case was made under S. 5 (7-A), it cannot be said that the notice issued by the Additional Officer had been wiped out or did not remain alive. If there was no case, there could not be any transfer of the case". We are unable to accept the view of the High Court that an order of transfer could not have been made unless some specific proceeding for assessment of the assessee to tax was actually pending. The explanation to S. 5 (7-A) makes it clear that the word "case", in relation to any person whose name is specified in the order of transfer, means all proceedings under the Act in respect of any year which may be pending on the date of the transfer, and also includes all proceedings under the Act which may be commenced after the date of the transfer in respect of any year. The word case is thus used in a comprehensive sense of including both pending proceedings as well as proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there be no proceedings pending for assessment of tax and the purpose of the transfer may simply be that all future proceedings are to take place before the officer to whom the case of the assessee is transferred. In the present case, the proceedings on the notice dated 23rd February, 1950, had already been terminated by the A. I. T. O. by his order directing that the case be filed Consequently, the effect of the order of transfer was that all the records relating to the assessment of the assessee had to be sent to the P. I. T. O., and this was with the object that, in future, all proceedings relating to assessment of this assessee were to be taken by the P. I. T. O. and not the A. I. T. O. The order does not necessarily indicate that those proceedings which the A. I. T. O. had actually terminated were still to be treated as pending and to stand transferred as pending proceedings12. Since the case of the assessee was transferred to the P. I. T. O. at the stage when no proceeding was pending before the A. I. T. O., the P. I. T. O. became seized of the jurisdiction to take any proceedings against the assessee which the law permitted. It was clearly in exercise of this jurisdiction that the P. I. T. O. issued the subsequent notice dated 11th February, 1956. That notice was, therefore, competently issued by him and was also valid, because it was issued before the expiry of eight years from the end of the relevant assessment year 1947-48.The notice having been issued validly within the period of limitation permitted by S. 34(3), the actual order of assessment could be made validly before the expiry of the period of one year from the date of the notice. The order of assessment dated 2nd May, 1956, was consequently a valid order and was not barred by time.
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Siemens Engineering & Manufacturing Co. Of India Limited Vs. Union Of India & Anr | that machinery which is defined in item Nos. 72, 72(1) and 72(2) and which is not otherwise specified. The words not otherwise specified do not qualify "component parts" : they qualify machinery. Otherwise, the conjunction and would have no meaning. In fact, the sentence would become ungrammatical if the words "not otherwise specified" were read to govern "component parts". This construction also receives support from the description of the component parts which follows the words not otherwise specified. This description starts with the word namely, which shows that it is intended to be a complete description of the component parts covered by this item and that would not contextually fit in with "component parts . . . not otherwise specified". There can be no doubt that on a plain grammatical construction, the words "not otherwise specified" qualify "machinery and not "component parts" and, therefore, the pot motors imported by the appellants, which satisfied the other requirements of item 72(3) could not be held to fall outside that item, because they were otherwise specified in item 73(21). Item 72(3) is a specific item which covers these pot motors as against item 73(21) which is a general item and hence it must be held that these pot motors were assessable under item 72(3) and not under item 73(21). The original assessment of these pot motors made by the Assistant Collector was, in the circumstances, correct and the subsequent demand of differential duty made by the Assistant Collector and confirmed by the Collector in revision and by the Government of India on further revision, was unjustified. The orders made by the Assistant Collector, the Collector and the Government of India confirming the demand for differential duty would, therefore, have to be quashed and set aside and the amount of differential duty recovered from the appellants pursuant to these orders would have to be refunded to the appellants.6. Before we part with this appeal, we must express out regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N. M. Desai v. Testeels Ltd. (C.A. No. 245 of 1970, dec, on December 17, 1975) But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated December 8, 1961 which were repeated in the subsequent representation dated June 4, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application. We hope and trust that in future the customs authorities will be more careful in adjudicating upon the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the customs authorities and the validity of the adjudication made by the customs authorities can also be satisfactorily tested in a superior tribunal or court. In fact, it would be desirable that in cases arising under customs and excise laws an independent quasi-judicial tribunal, like the Income-tax Appellate Tribunal or the Foreign Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government of India. An independent quasi-judicial tribunal would definitely inspire greater confidence in the public mind. | 1[ds]6. Before we part with this appeal, we must express out regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N. M. Desai v. Testeels Ltd. (C.A. No. 245 of 1970, dec, on December 17, 1975) But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated December 8, 1961 which were repeated in the subsequent representation dated June 4, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application. We hope and trust that in future the customs authorities will be more careful in adjudicating upon the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the customs authorities and the validity of the adjudication made by the customs authorities can also be satisfactorily tested in a superior tribunal or court. In fact, it would be desirable that in cases arising under customs and excise laws an independent quasi-judicial tribunal, like the Income-tax Appellate Tribunal or the Foreign Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government of India. An independent quasi-judicial tribunal would definitely inspire greater confidence in the publicit said was this, namely, that the pot motors were imported under a separate contract from Germany while the spinning machinery excluding pot motors were imported from Japan and that did not "justify the treatment of two consignments as one article". The Government of India also did not articulate its reasons while rejecting the revision application of the appellants, but since it confirmed the order of the Collector, we may presume that the same reason which prevailed with the Collector appealed to the Government of India. It will, therefore, be seen that at no stage was the factual position in regard to the pot motors, as set out in the representation of the appellants dated December 8, 1961, disputed by the Assistant Collector of Customs or the Collector or the Government of India. The pot motors, therefore, clearly fell within the description given in item 72(3). | 1 | 3,597 | 906 | ### 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:
that machinery which is defined in item Nos. 72, 72(1) and 72(2) and which is not otherwise specified. The words not otherwise specified do not qualify "component parts" : they qualify machinery. Otherwise, the conjunction and would have no meaning. In fact, the sentence would become ungrammatical if the words "not otherwise specified" were read to govern "component parts". This construction also receives support from the description of the component parts which follows the words not otherwise specified. This description starts with the word namely, which shows that it is intended to be a complete description of the component parts covered by this item and that would not contextually fit in with "component parts . . . not otherwise specified". There can be no doubt that on a plain grammatical construction, the words "not otherwise specified" qualify "machinery and not "component parts" and, therefore, the pot motors imported by the appellants, which satisfied the other requirements of item 72(3) could not be held to fall outside that item, because they were otherwise specified in item 73(21). Item 72(3) is a specific item which covers these pot motors as against item 73(21) which is a general item and hence it must be held that these pot motors were assessable under item 72(3) and not under item 73(21). The original assessment of these pot motors made by the Assistant Collector was, in the circumstances, correct and the subsequent demand of differential duty made by the Assistant Collector and confirmed by the Collector in revision and by the Government of India on further revision, was unjustified. The orders made by the Assistant Collector, the Collector and the Government of India confirming the demand for differential duty would, therefore, have to be quashed and set aside and the amount of differential duty recovered from the appellants pursuant to these orders would have to be refunded to the appellants.6. Before we part with this appeal, we must express out regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N. M. Desai v. Testeels Ltd. (C.A. No. 245 of 1970, dec, on December 17, 1975) But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated December 8, 1961 which were repeated in the subsequent representation dated June 4, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application. We hope and trust that in future the customs authorities will be more careful in adjudicating upon the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the customs authorities and the validity of the adjudication made by the customs authorities can also be satisfactorily tested in a superior tribunal or court. In fact, it would be desirable that in cases arising under customs and excise laws an independent quasi-judicial tribunal, like the Income-tax Appellate Tribunal or the Foreign Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government of India. An independent quasi-judicial tribunal would definitely inspire greater confidence in the public mind.
### Response:
1
### Explanation:
6. Before we part with this appeal, we must express out regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N. M. Desai v. Testeels Ltd. (C.A. No. 245 of 1970, dec, on December 17, 1975) But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated December 8, 1961 which were repeated in the subsequent representation dated June 4, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application. We hope and trust that in future the customs authorities will be more careful in adjudicating upon the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the customs authorities and the validity of the adjudication made by the customs authorities can also be satisfactorily tested in a superior tribunal or court. In fact, it would be desirable that in cases arising under customs and excise laws an independent quasi-judicial tribunal, like the Income-tax Appellate Tribunal or the Foreign Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government of India. An independent quasi-judicial tribunal would definitely inspire greater confidence in the publicit said was this, namely, that the pot motors were imported under a separate contract from Germany while the spinning machinery excluding pot motors were imported from Japan and that did not "justify the treatment of two consignments as one article". The Government of India also did not articulate its reasons while rejecting the revision application of the appellants, but since it confirmed the order of the Collector, we may presume that the same reason which prevailed with the Collector appealed to the Government of India. It will, therefore, be seen that at no stage was the factual position in regard to the pot motors, as set out in the representation of the appellants dated December 8, 1961, disputed by the Assistant Collector of Customs or the Collector or the Government of India. The pot motors, therefore, clearly fell within the description given in item 72(3).
|
Rentala Latchaiah & Ors Vs. Chimmapudi Subrahmanyam | by the Collector and that they had held possession for many years but not for a period sufficient to create a right of occupancy. Accordingly they were within the class termed in the Bengal Tenancy Act as non-occupancy ryots. Under S. 5 (2) of the Bengal Tenancy Act a ryot means primarily "a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family, or by hired servants, or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right." Section 4 of the Act specified non-occupancy ryots as one of the classes of tenants under that Act. Under S. 3 (3) of the Act, a tenant means "a person who holds land under another person, and is, or but for a special contract would be liable to pay rent for that land to that person." The High Court held that the defendants were clearly liable to pay for use and occupation of the land and in the light of the definition of "rent" in S. 3 (5) it had to be held that the defendants were ryots and, therefore, non-occupancy ryots within the terms of the Bengal Tenancy Act. The High Court finally observed:"It may seem anomalous that the defendants, who have no title from the plaintiffs directly, or through their predecessors in estate, should thus be protected as non-occupancy ryots from ejectment as trespassers at the plaintiffs free will: but it seems to us that this is in accordance with the general spirit of the Bengal Tenancy Act, which regards a landlord as a rent receiver and as able to eject a tenant or cultivator of the soil, not an under-tenant, only for certain specified reasons and conditions, none of which here exist. If the defendants had acquired a right of occupancy by occupation for twelve years, they would have been protected from ejectment, and as non-occupancy ryots they are also protected except as specially provided." 8. It will, therefore, be noticed that the scheme of the Bengal Tenancy Act was entirely different from the provisions of the Act we have to construe. There occupancy ryots were protected altogether from ejectment but so long as they were non-occupancy ryots they were also protected except under conditions mentioned in S. 44. Here too the Act would have protected them if their original induction was lawful so that they could be said to be lawfully cultivating the lands. 9. The other decision of the Calcutta High Court is that in Binad Lala Pakrashi v. Kalu Pramanik. (1893) ILR 20 Cal 708 . In this case the plaintiffs who were proprietors sought to oust the defendants from certain lands which they were cultivating in Barakahali village. Previously thereto, there was a dispute regarding these; lands between the plaintiff and the trustee of the late D. N. Tagore who claimed them as the reformed lands of village Modhupur. The plaintiffs were dispossessed of the lands in consequence of the order of a Magistrate who in a proceedings, under S. 145, Cr. P. C. declared possession to be with the trustees. The lower Courts found that the defendants were settled on the land by the trustees but they had not acquired a right of occupancy at the time the suits were brought against them by the plaintiffs in January 1889. Meanwhile in 1878 the plaintiffs had sued the trustees and obtained decrees which were confirmed in appeal by the High Court In January 1886 the plaintiffs took possession of the lands as against the trustees and then they brought suits to eject the defendants as trespassers. They had not received rent from the defendants or in any way admitted their tenancy The trial Court decreed the suits in favour of the plaintiffs but these were upset in appeal by the District Court on the authority of Mohima Chunder Sahas case, (1890)ILR 17 Cal 45 According to the Full Bench:"The possession of the land in question for the purpose of cultivating it was acquired a good many years ago by the defendants from the persons who at that time were in actual possession of the zamindari within which it was situated, and who were then the only persons who could give possession of the lands of the zamindari to cultivators." The Full Bench held that although they had established their right to the zamindari the plaintiffs could not treat the cultivators as trespassers and obtain khas possession of the lands from them. Referring to S. 5 (2) of the Bengal Tenancy Act, the learned Chief Justice said:"The possession and interest in the land which the defendants acquired from the persons in possession of the zamindari was a right to hold it for the purpose of cultivating it as against all the world except the true owners of the zamindari, and against them unless they proved a title to the zamindari paramount to that of the plaintiffs landlords. This was. I think, a right to hold the land for the purpose of cultivating it within the meaning of S. 5, Cl. 2 the defendants are ryots, and the only right of the person who has obtained possession of the zamindari is to the rent payable for the land, and not to the khas possession of the land itself, unless they can do so under the provisions of the Tenancy Act. 10. The facts in the Calcutta cases were different from the case before us and the Bengal Tenancy Act gave protection to persons cultivating the land in circumstances which do not obtain here. It would, therefore, not be right to hold. on the basis of the decisions in the Calcutta High Court, that although the person who inducted the tenants on the land was found to be a trespasser on the date of such induction, the tenants continued to have a right to be on the land against the will of the true owner. | 0[ds]4. The appellants before this Court never were the tenants of Ramalingayya. They were inducted on the land by his widow after the decree of the suit for declaration of title and possession in favour of the adopted son. After the passing of the decree, the possession of the widow could only be that of a trespasser and it was not open to her to create any right in the land in favour of anybodyThis would indeed be a very strange provision of the law and would if upheld, amount to encouraging trespass on the land by persons who had no shadow of title and creating rights in favour of others although they themselves had no title to the land. The meaning of the word asami shikmi" in the definition of the tenant in S. 2 (v) does not appear from any provision of the Act but our attention was drawn to the Hyderabad Land Revenue Act, S. 2 (13), according to which "asami shikmi means a lessee, whether holding under an instrument or under an oral agreement, and includes a mortgage of an asami shikmis rights with possession but does not include a lessee holding directly under Government". In our opinion, this does not help the appellants for the definition shows that a person who claims to be an asami shikmi had to be a lessee either holding under a document of lease or under an oral agreement5. The position might have been different if the appellants had been inducted on the lands by the widow after her recognition as a pattedar by the revenue authorities and before the disposal of the suit against her; but, we are not concerned with that situation. The High Court had considered at some length the question whether she could create any tenancy rights when there was an injunction restraining her from alienating any property. We do not think it was necessary to go into that question for normally the order of injunction which was passed as an interlocutory measure would not survive the decree of the trial CourtSuch is not the position in the case before us. Kaveramma did not induct the tenants on the land in the normal course of management of the property. She put them in possession when she had lost her right to be there and consequently the decision of this Court in Dahya Lalas case 1963 (3) SCR l = (AIR 1964 SC 1320 ), can be of no assistance to the appellants before us8. It will, therefore, be noticed that the scheme of the Bengal Tenancy Act was entirely different from the provisions of the Act we have to construe. There occupancy ryots were protected altogether from ejectment but so long as they were non-occupancy ryots they were also protected except under conditions mentioned in S. 44. Here too the Act would have protected them if their original induction was lawful so that they could be said to be lawfully cultivating the landsThis was. I think, a right to hold the land for the purpose of cultivating it within the meaning of S. 5, Cl. 2 the defendants are ryots, and the only right of the person who has obtained possession of the zamindari is to the rent payable for the land, and not to the khas possession of the land itself, unless they can do so under the provisions of the Tenancy Act10. The facts in the Calcutta cases were different from the case before us and the Bengal Tenancy Act gave protection to persons cultivating the land in circumstances which do not obtain here. It would, therefore, not be right to hold. on the basis of the decisions in the Calcutta High Court, that although the person who inducted the tenants on the land was found to be a trespasser on the date of such induction, the tenants continued to have a right to be on the land against the will of the true owner. | 0 | 3,476 | 715 | ### 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:
by the Collector and that they had held possession for many years but not for a period sufficient to create a right of occupancy. Accordingly they were within the class termed in the Bengal Tenancy Act as non-occupancy ryots. Under S. 5 (2) of the Bengal Tenancy Act a ryot means primarily "a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family, or by hired servants, or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right." Section 4 of the Act specified non-occupancy ryots as one of the classes of tenants under that Act. Under S. 3 (3) of the Act, a tenant means "a person who holds land under another person, and is, or but for a special contract would be liable to pay rent for that land to that person." The High Court held that the defendants were clearly liable to pay for use and occupation of the land and in the light of the definition of "rent" in S. 3 (5) it had to be held that the defendants were ryots and, therefore, non-occupancy ryots within the terms of the Bengal Tenancy Act. The High Court finally observed:"It may seem anomalous that the defendants, who have no title from the plaintiffs directly, or through their predecessors in estate, should thus be protected as non-occupancy ryots from ejectment as trespassers at the plaintiffs free will: but it seems to us that this is in accordance with the general spirit of the Bengal Tenancy Act, which regards a landlord as a rent receiver and as able to eject a tenant or cultivator of the soil, not an under-tenant, only for certain specified reasons and conditions, none of which here exist. If the defendants had acquired a right of occupancy by occupation for twelve years, they would have been protected from ejectment, and as non-occupancy ryots they are also protected except as specially provided." 8. It will, therefore, be noticed that the scheme of the Bengal Tenancy Act was entirely different from the provisions of the Act we have to construe. There occupancy ryots were protected altogether from ejectment but so long as they were non-occupancy ryots they were also protected except under conditions mentioned in S. 44. Here too the Act would have protected them if their original induction was lawful so that they could be said to be lawfully cultivating the lands. 9. The other decision of the Calcutta High Court is that in Binad Lala Pakrashi v. Kalu Pramanik. (1893) ILR 20 Cal 708 . In this case the plaintiffs who were proprietors sought to oust the defendants from certain lands which they were cultivating in Barakahali village. Previously thereto, there was a dispute regarding these; lands between the plaintiff and the trustee of the late D. N. Tagore who claimed them as the reformed lands of village Modhupur. The plaintiffs were dispossessed of the lands in consequence of the order of a Magistrate who in a proceedings, under S. 145, Cr. P. C. declared possession to be with the trustees. The lower Courts found that the defendants were settled on the land by the trustees but they had not acquired a right of occupancy at the time the suits were brought against them by the plaintiffs in January 1889. Meanwhile in 1878 the plaintiffs had sued the trustees and obtained decrees which were confirmed in appeal by the High Court In January 1886 the plaintiffs took possession of the lands as against the trustees and then they brought suits to eject the defendants as trespassers. They had not received rent from the defendants or in any way admitted their tenancy The trial Court decreed the suits in favour of the plaintiffs but these were upset in appeal by the District Court on the authority of Mohima Chunder Sahas case, (1890)ILR 17 Cal 45 According to the Full Bench:"The possession of the land in question for the purpose of cultivating it was acquired a good many years ago by the defendants from the persons who at that time were in actual possession of the zamindari within which it was situated, and who were then the only persons who could give possession of the lands of the zamindari to cultivators." The Full Bench held that although they had established their right to the zamindari the plaintiffs could not treat the cultivators as trespassers and obtain khas possession of the lands from them. Referring to S. 5 (2) of the Bengal Tenancy Act, the learned Chief Justice said:"The possession and interest in the land which the defendants acquired from the persons in possession of the zamindari was a right to hold it for the purpose of cultivating it as against all the world except the true owners of the zamindari, and against them unless they proved a title to the zamindari paramount to that of the plaintiffs landlords. This was. I think, a right to hold the land for the purpose of cultivating it within the meaning of S. 5, Cl. 2 the defendants are ryots, and the only right of the person who has obtained possession of the zamindari is to the rent payable for the land, and not to the khas possession of the land itself, unless they can do so under the provisions of the Tenancy Act. 10. The facts in the Calcutta cases were different from the case before us and the Bengal Tenancy Act gave protection to persons cultivating the land in circumstances which do not obtain here. It would, therefore, not be right to hold. on the basis of the decisions in the Calcutta High Court, that although the person who inducted the tenants on the land was found to be a trespasser on the date of such induction, the tenants continued to have a right to be on the land against the will of the true owner.
### Response:
0
### Explanation:
4. The appellants before this Court never were the tenants of Ramalingayya. They were inducted on the land by his widow after the decree of the suit for declaration of title and possession in favour of the adopted son. After the passing of the decree, the possession of the widow could only be that of a trespasser and it was not open to her to create any right in the land in favour of anybodyThis would indeed be a very strange provision of the law and would if upheld, amount to encouraging trespass on the land by persons who had no shadow of title and creating rights in favour of others although they themselves had no title to the land. The meaning of the word asami shikmi" in the definition of the tenant in S. 2 (v) does not appear from any provision of the Act but our attention was drawn to the Hyderabad Land Revenue Act, S. 2 (13), according to which "asami shikmi means a lessee, whether holding under an instrument or under an oral agreement, and includes a mortgage of an asami shikmis rights with possession but does not include a lessee holding directly under Government". In our opinion, this does not help the appellants for the definition shows that a person who claims to be an asami shikmi had to be a lessee either holding under a document of lease or under an oral agreement5. The position might have been different if the appellants had been inducted on the lands by the widow after her recognition as a pattedar by the revenue authorities and before the disposal of the suit against her; but, we are not concerned with that situation. The High Court had considered at some length the question whether she could create any tenancy rights when there was an injunction restraining her from alienating any property. We do not think it was necessary to go into that question for normally the order of injunction which was passed as an interlocutory measure would not survive the decree of the trial CourtSuch is not the position in the case before us. Kaveramma did not induct the tenants on the land in the normal course of management of the property. She put them in possession when she had lost her right to be there and consequently the decision of this Court in Dahya Lalas case 1963 (3) SCR l = (AIR 1964 SC 1320 ), can be of no assistance to the appellants before us8. It will, therefore, be noticed that the scheme of the Bengal Tenancy Act was entirely different from the provisions of the Act we have to construe. There occupancy ryots were protected altogether from ejectment but so long as they were non-occupancy ryots they were also protected except under conditions mentioned in S. 44. Here too the Act would have protected them if their original induction was lawful so that they could be said to be lawfully cultivating the landsThis was. I think, a right to hold the land for the purpose of cultivating it within the meaning of S. 5, Cl. 2 the defendants are ryots, and the only right of the person who has obtained possession of the zamindari is to the rent payable for the land, and not to the khas possession of the land itself, unless they can do so under the provisions of the Tenancy Act10. The facts in the Calcutta cases were different from the case before us and the Bengal Tenancy Act gave protection to persons cultivating the land in circumstances which do not obtain here. It would, therefore, not be right to hold. on the basis of the decisions in the Calcutta High Court, that although the person who inducted the tenants on the land was found to be a trespasser on the date of such induction, the tenants continued to have a right to be on the land against the will of the true owner.
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State of Himachal Pradesh & Another Vs. Pawan Kumar & Another | evidence obtained as a result of illegal search or seizure is not liable to be shut out." 21. In the United States the law regarding illegally obtained evidence has been stated as under in 29 American Jurisprudence 2d (para 408): "408. Generally In criminal prosecutions, in particular, evidence is frequently obtained by methods that are morally reprehensible and offensive to fair dealing, under circumstances which meet with disapprobation of the courts, and in many instances, by means that are illegal. However, it is a rule of the Common law that the admissibility of evidence is not affected by the illegality of the means by which it is obtained, and if evidence offered in support of a fact in issue is relevant and otherwise competent, it is generally admissible, though it may have been obtained unethically, wrongfully, or unlawfully, unless its admission will violate a constitutional guaranty of the person against whom its admission is sought, or is in contravention of a statutory enactment of the jurisdiction. Accordingly, the exclusion of evidence logically relevant in a criminal prosecution can be justified only by an overriding public policy expressed in the Constitution or the law of the land. The underlying principle admitting evidence wrongfully or illegally obtained is that the objection to an offer of proof made upon the trial raises no question other than competency, relevancy, and materiality, and the court cannot enter upon the trial of collateral issues as to the source from which the evidence was obtained. It has also been said that a far-reaching miscarriage of justice would result if the public were to be denied the right to use convincing evidence of a defendants guilt because it had been brought to light through the excessive zeal of an individual, whether an officer or not, whose misconduct must be deemed his own act and not that of the state..........." The Fourth Amendment of American Constitution guarantees the "right of the people to be secure in their persons, houses, papers and effects and against unreasonable searches and seizures." On the basis of the aforesaid Constitutional provision, the United States Supreme Court in some earlier decisions laid down the rule that evidence obtained by means of an unlawful search and seizure by federal officers is not admissible against an accused in a criminal prosecution in a federal court where timely objection to the use of such evidence has been made. However, in Stone vs. Powell 428 US 465 the aforesaid view was reversed and it was held that the application of the rule deflects the truth finding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded to a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice. It was observed that although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice. The Court quoted with approval the following point highlighted by Justice Black, in his dissenting opinion in a earlier decision rendered in Kaufman vs. United States 394 US 237: "A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty." 22. The Constitution Bench decision in Pooran Mal vs. The Director of Inspector 1974 (1) SCC 345 was considered in State of Punjab vs. Baldev Singh, 1999 Drugs Case 150 : 1999 (6) SCC 172 and having regard to the scheme of the Act and especially the provisions of Section 50 thereof, it was held that it was not possible to hold that the judgment in the said case can be said to have laid down that the "recovered illicit article" can be used as "proof of unlawful possession" of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between recovery of illicit drugs etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used, a very strict view of Section 50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub-Section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him. 23. Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present cases as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal. | 1[ds]13. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.It will be useful here to take note of the general law regarding search and seizure and the effect of any illegality committed during the course of search on the seizure or recovery made of any incriminating article. In State of Maharashtra vs. Natwarlal Damodardas Soni AIR 1980 SC 593 , the Anti-Corruption Bureau had recovered 100 gold bars each weighing 10 tolas having foreign markings from the residential premises of the accused, consequent upon which the custom authorities initiated proceedings in which he was convicted. The contention raised was that the search and seizure of the gold by the police was illegal. It was held that the police had powers under the Code of Criminal Procedure t search and seize the gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo that the search was illegal, them also, it will not affect the validity of the seizure and further investigation by the custom authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present cases as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal. | 1 | 7,733 | 398 | ### 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:
evidence obtained as a result of illegal search or seizure is not liable to be shut out." 21. In the United States the law regarding illegally obtained evidence has been stated as under in 29 American Jurisprudence 2d (para 408): "408. Generally In criminal prosecutions, in particular, evidence is frequently obtained by methods that are morally reprehensible and offensive to fair dealing, under circumstances which meet with disapprobation of the courts, and in many instances, by means that are illegal. However, it is a rule of the Common law that the admissibility of evidence is not affected by the illegality of the means by which it is obtained, and if evidence offered in support of a fact in issue is relevant and otherwise competent, it is generally admissible, though it may have been obtained unethically, wrongfully, or unlawfully, unless its admission will violate a constitutional guaranty of the person against whom its admission is sought, or is in contravention of a statutory enactment of the jurisdiction. Accordingly, the exclusion of evidence logically relevant in a criminal prosecution can be justified only by an overriding public policy expressed in the Constitution or the law of the land. The underlying principle admitting evidence wrongfully or illegally obtained is that the objection to an offer of proof made upon the trial raises no question other than competency, relevancy, and materiality, and the court cannot enter upon the trial of collateral issues as to the source from which the evidence was obtained. It has also been said that a far-reaching miscarriage of justice would result if the public were to be denied the right to use convincing evidence of a defendants guilt because it had been brought to light through the excessive zeal of an individual, whether an officer or not, whose misconduct must be deemed his own act and not that of the state..........." The Fourth Amendment of American Constitution guarantees the "right of the people to be secure in their persons, houses, papers and effects and against unreasonable searches and seizures." On the basis of the aforesaid Constitutional provision, the United States Supreme Court in some earlier decisions laid down the rule that evidence obtained by means of an unlawful search and seizure by federal officers is not admissible against an accused in a criminal prosecution in a federal court where timely objection to the use of such evidence has been made. However, in Stone vs. Powell 428 US 465 the aforesaid view was reversed and it was held that the application of the rule deflects the truth finding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded to a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice. It was observed that although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice. The Court quoted with approval the following point highlighted by Justice Black, in his dissenting opinion in a earlier decision rendered in Kaufman vs. United States 394 US 237: "A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty." 22. The Constitution Bench decision in Pooran Mal vs. The Director of Inspector 1974 (1) SCC 345 was considered in State of Punjab vs. Baldev Singh, 1999 Drugs Case 150 : 1999 (6) SCC 172 and having regard to the scheme of the Act and especially the provisions of Section 50 thereof, it was held that it was not possible to hold that the judgment in the said case can be said to have laid down that the "recovered illicit article" can be used as "proof of unlawful possession" of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between recovery of illicit drugs etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used, a very strict view of Section 50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub-Section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him. 23. Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present cases as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal.
### Response:
1
### Explanation:
13. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.It will be useful here to take note of the general law regarding search and seizure and the effect of any illegality committed during the course of search on the seizure or recovery made of any incriminating article. In State of Maharashtra vs. Natwarlal Damodardas Soni AIR 1980 SC 593 , the Anti-Corruption Bureau had recovered 100 gold bars each weighing 10 tolas having foreign markings from the residential premises of the accused, consequent upon which the custom authorities initiated proceedings in which he was convicted. The contention raised was that the search and seizure of the gold by the police was illegal. It was held that the police had powers under the Code of Criminal Procedure t search and seize the gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo that the search was illegal, them also, it will not affect the validity of the seizure and further investigation by the custom authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present cases as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal.
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Commissioner of Income Tax Vs. K.T.M.T.M. Abdul Kayoom & Another | capital as the money sunk in machinery or buildings. The first part of the observation is applicable to Mohanlal Hargovinds case 1949-17 ITR 473 : (AIR 1949 PC 311 ) and the latter part, to Pingle Industries case 1960-3 SCR 681 : (AIR 1960 SC 1034 .) What is said of a manufacturing concern is equally applicable to a non-manufacturing business. It is the quality of the payment taken with what is obtained, that is decisive of the character of the payment. 26. We may now pass on to the facts of the case before us. The respondent carried on the business of selling chanks. It obtained its supplies from divers, from whom it purchased the chanks, and having got them, perhaps cheap, it resold them at a profit. This is one mode in which it carried on its business : In this business it was directly buying its stock-in-trade for resale. The other method was to acquire exclusive right to fish for chanks by employing divers and nets. The business then changed to something different. The sale was now of the product of another business in which divers and equipment were first employed to get the shells. It thus took leases of extensive coastline with all the right to fish for chanks for some years. The shells were not the subject of the bargain at all, as were the tendu leaves ; but the bargain was about the right to fish. There can be no doubt that what it paid the divers when it bought chanks from them with the view of reselling them, was expenditure laid out wholly and exclusively for the purpose of- its business, which was not of a capital nature. That business was buying goods and reselling them at a profit. But a different kind of business was involved when it went in for fishing for chanks. To be able to fish for chanks in reserved waters it had to obtain the right first. It, therefore, took lease of that right. To Mohanlal Hargovind, the leaves were raw materials, and that firm preferred to buy a number of crops over years rather than buy them as it went along. Hence the remark that the leaves were bought, as if they were in a shop. 27. Under the lease which the respondent obtained, it had a right to take only chanks of particular dimensions and shape; but it had to fish for them and obtain them first. The rest of the chanks were not its property. The smaller chanks had to be returned alive to the sea, and Velampuri chanks had to be compulsorily sold to the State. Of course, the smaller chanks put back into the sea would grow, and if fished later, be its property to take ; but till they grow, it had no claim. The chanks were on the bed of the sea. Their exact existence was not known, till the divers found them, or they got netted. Chanks which were there one day might have been washed back into the deep sea, and might never be washed back into a place where they would be within reach. Similarly, other chanks not there one day might come within reach on another day. All these matters make the case entirely different from the case of a purchase from the divers. In obtaining the lease, the respondent obtained a speculative right to fish for chanks which it hoped to obtain and which might be in large quantities, or small, according to its luck. The respondent changed the nature of its business to fishing for chanks instead of buying them. To be able to fish, it had to arrange for an area to fish, and that arrangement had to be of some duration to be effective. 28. This is not a case of so much clay or so much salt-petre or a dump of tailings or leaves on the trees in a forest. The two modes in which the respondent did the business furnish adequate distinguishing characteristics. Here is an agreement to reserve a source, where the respondent hoped to find shells which, when found, became its stock-in-trade but which in situ, were no more the firms than a shell in the deepest part of the ocean beyond the reach of its divers and nets. The expenses of fishing shells were its current expenses as also the expenses incurred over the purchase of shells from the divers. But to say that the payment of lease money for reserving an exclusive right to fish for chanks was on a par with payments of the other character is to err. It was possible to say of the former, as it was possible to say of the tendu leaves in Mohanlal Hargovinds case 1949-17 ITR 473: (AIR 1949 PC 311 ) that the chanks were bought because the money paid was the price of the chanks. But it would be a straining of the imagination to say that the amount paid for reserving the coastline for future fishing was the price of chanks, with which the respondent did its business. That amount was paid to obtain an enduring asset in the shape of an exclusive right to fish, and the payment was not related to the chanks, which it might or might not have brought to the surface in this speculative business. The rights were not transferable, but if they were and the firm had sold them, the gain, if any, would have been on the capital side and not a realising of the chanks as stock-in-trade, because none had been bought by the firm, and none would have been sold by it. 29. In our opinion, the decision of the High Court, with all due respect, was, therefore, erroneous, and the earlier decision of the Full Bench of the same High Court was right in the circumstances of the case. 30. In the result, the appeal is allowed but there will be no order about costs. ORDER | 1[ds]Under the contract in question the respondent firm did not acquire any right to immovable property. It acquired no right in the bed of the sea or in the sea. The only right conferred on the respondent firm was the right to fish for, gather and carry away conch shells ((in motion under the surface of the sea) of a specified type and size. The respondent firm was under an obligation to return to the sea conch shells less than 2 1/4 inches in diameter. The business of the respondent firm consisted in buying and selling conch shells. No manufacturing process was involved in it. Therefore, the stock-in-trade of the respondent firm was conch shells. It secured this stock-in-trade in many different ways, by purchase from divers, by purchase from Government and private parties, and also by gathering conch shells under the contract in question. In my opinion, the contract into which the respondent firm entered was merely for securing its stock-in-trade. It is indeed true that in consideringwhether an item of expenditure is of a capital or a revenue nature, one must consider the nature of the concern, the ordinary course of business usually adopted in that concern, and the object with which the expense is incurred.The true nature of the transaction must be collected from the entire document with reference to all relevant facts and circumstances. Having regard to the nature of the respondent firms business and the course adopted by it for carrying it on, it appears to me to be rather far-fetched to hold that by the contract in question the respondent firm acquired property or right of a permanent character, the possession of which was a condition of carrying on its trade. To me it seems that the better view, in a business sense, is that the respondent firm merely acquired by means of the contract its stock-in-trade, rather than a source or enduring asset for producing the stock-in-tradeIt was argued before us, as it was argued in the High Court, that what was acquired in the present case was the means of obtaining the stock-in-trade for the business rather than the stock-in-trade itself. I am unable to accept this argument as correct. The contract entered into by the respondent firm was wholly and exclusively for the purpose of obtaining conch shells, which were its stock-in-trade. As I have stated earlier, the contract granted no interest in the sea, sea bed, or sea water etc. It was simply a contract giving the grantee the rights to pick and carry away conch shells of a specified type and size which of course implied the right to appropriate them as its own property. In my opinion, in a case of this nature no distinction can be drawn in a business sense between the right of picking and carrying away conch shells and the actual buying of them. It is not unusual for business men to secure, by means of a contract, a supply of raw materials or of goods which form their stock-in-trade, extending over several years for the payment of a lump sum down. Even if the conch shells were stored in a godown and the respondent firm was given a right to go and fetch them and so reduce them into its ownership, it could scarcely have been suggested that the price paid was capital expenditure. I may explain what I have in mind by giving a simple illustration. Take the case of a fisherman who sells fish. Fish is his stock-in-trade. He may buy the fish he requires from other persons; or he may obtain the supply of fish he requires by catching the fish of a specified size and type in particular waters over a short period under a contract entered into by him and take them away. I do not think that in a business sense any distinction can be made between the two means of obtaining the stock-in-trade- Both really amount to securing the stock-in-trade rather than acquiring an enduring asset or a permanent right for producing the stock-in-trade. And a business man, like the fisherman in the illustration given above, would indeed be surprised to learn that buying of fish for his business is revenue expenditure whereas catching fish in particular waters under a contract entered into by him for the purpose of obtaining his stock-in-trade on payment of a lump sum down, is capital expenditure11. On behalf of the respondent firm a further question was agitated, namely, whether an allowance for the cost of gathering the conch shells by nets etc. should not be given, even though the rent paid under the contract was not allowable, under S. 10(2) (xv) of the Income-tax Act and a reference was made in this connection to the decision inHood Barrs v. Commissioners of Inland Revenue, (1957) 37 Tax CasI do not think that we are concerned with that matter in the present appeal. The only question which arises for decision is the one referred to the High Court. I have held that the High Court correctly answered the question which related to the payment of the sum of Rs. 6,111/- only. The question having been correctly answered by the High Court, the appeal fails and must be dismissed with costs. | 1 | 9,443 | 958 | ### 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:
capital as the money sunk in machinery or buildings. The first part of the observation is applicable to Mohanlal Hargovinds case 1949-17 ITR 473 : (AIR 1949 PC 311 ) and the latter part, to Pingle Industries case 1960-3 SCR 681 : (AIR 1960 SC 1034 .) What is said of a manufacturing concern is equally applicable to a non-manufacturing business. It is the quality of the payment taken with what is obtained, that is decisive of the character of the payment. 26. We may now pass on to the facts of the case before us. The respondent carried on the business of selling chanks. It obtained its supplies from divers, from whom it purchased the chanks, and having got them, perhaps cheap, it resold them at a profit. This is one mode in which it carried on its business : In this business it was directly buying its stock-in-trade for resale. The other method was to acquire exclusive right to fish for chanks by employing divers and nets. The business then changed to something different. The sale was now of the product of another business in which divers and equipment were first employed to get the shells. It thus took leases of extensive coastline with all the right to fish for chanks for some years. The shells were not the subject of the bargain at all, as were the tendu leaves ; but the bargain was about the right to fish. There can be no doubt that what it paid the divers when it bought chanks from them with the view of reselling them, was expenditure laid out wholly and exclusively for the purpose of- its business, which was not of a capital nature. That business was buying goods and reselling them at a profit. But a different kind of business was involved when it went in for fishing for chanks. To be able to fish for chanks in reserved waters it had to obtain the right first. It, therefore, took lease of that right. To Mohanlal Hargovind, the leaves were raw materials, and that firm preferred to buy a number of crops over years rather than buy them as it went along. Hence the remark that the leaves were bought, as if they were in a shop. 27. Under the lease which the respondent obtained, it had a right to take only chanks of particular dimensions and shape; but it had to fish for them and obtain them first. The rest of the chanks were not its property. The smaller chanks had to be returned alive to the sea, and Velampuri chanks had to be compulsorily sold to the State. Of course, the smaller chanks put back into the sea would grow, and if fished later, be its property to take ; but till they grow, it had no claim. The chanks were on the bed of the sea. Their exact existence was not known, till the divers found them, or they got netted. Chanks which were there one day might have been washed back into the deep sea, and might never be washed back into a place where they would be within reach. Similarly, other chanks not there one day might come within reach on another day. All these matters make the case entirely different from the case of a purchase from the divers. In obtaining the lease, the respondent obtained a speculative right to fish for chanks which it hoped to obtain and which might be in large quantities, or small, according to its luck. The respondent changed the nature of its business to fishing for chanks instead of buying them. To be able to fish, it had to arrange for an area to fish, and that arrangement had to be of some duration to be effective. 28. This is not a case of so much clay or so much salt-petre or a dump of tailings or leaves on the trees in a forest. The two modes in which the respondent did the business furnish adequate distinguishing characteristics. Here is an agreement to reserve a source, where the respondent hoped to find shells which, when found, became its stock-in-trade but which in situ, were no more the firms than a shell in the deepest part of the ocean beyond the reach of its divers and nets. The expenses of fishing shells were its current expenses as also the expenses incurred over the purchase of shells from the divers. But to say that the payment of lease money for reserving an exclusive right to fish for chanks was on a par with payments of the other character is to err. It was possible to say of the former, as it was possible to say of the tendu leaves in Mohanlal Hargovinds case 1949-17 ITR 473: (AIR 1949 PC 311 ) that the chanks were bought because the money paid was the price of the chanks. But it would be a straining of the imagination to say that the amount paid for reserving the coastline for future fishing was the price of chanks, with which the respondent did its business. That amount was paid to obtain an enduring asset in the shape of an exclusive right to fish, and the payment was not related to the chanks, which it might or might not have brought to the surface in this speculative business. The rights were not transferable, but if they were and the firm had sold them, the gain, if any, would have been on the capital side and not a realising of the chanks as stock-in-trade, because none had been bought by the firm, and none would have been sold by it. 29. In our opinion, the decision of the High Court, with all due respect, was, therefore, erroneous, and the earlier decision of the Full Bench of the same High Court was right in the circumstances of the case. 30. In the result, the appeal is allowed but there will be no order about costs. ORDER
### Response:
1
### Explanation:
Under the contract in question the respondent firm did not acquire any right to immovable property. It acquired no right in the bed of the sea or in the sea. The only right conferred on the respondent firm was the right to fish for, gather and carry away conch shells ((in motion under the surface of the sea) of a specified type and size. The respondent firm was under an obligation to return to the sea conch shells less than 2 1/4 inches in diameter. The business of the respondent firm consisted in buying and selling conch shells. No manufacturing process was involved in it. Therefore, the stock-in-trade of the respondent firm was conch shells. It secured this stock-in-trade in many different ways, by purchase from divers, by purchase from Government and private parties, and also by gathering conch shells under the contract in question. In my opinion, the contract into which the respondent firm entered was merely for securing its stock-in-trade. It is indeed true that in consideringwhether an item of expenditure is of a capital or a revenue nature, one must consider the nature of the concern, the ordinary course of business usually adopted in that concern, and the object with which the expense is incurred.The true nature of the transaction must be collected from the entire document with reference to all relevant facts and circumstances. Having regard to the nature of the respondent firms business and the course adopted by it for carrying it on, it appears to me to be rather far-fetched to hold that by the contract in question the respondent firm acquired property or right of a permanent character, the possession of which was a condition of carrying on its trade. To me it seems that the better view, in a business sense, is that the respondent firm merely acquired by means of the contract its stock-in-trade, rather than a source or enduring asset for producing the stock-in-tradeIt was argued before us, as it was argued in the High Court, that what was acquired in the present case was the means of obtaining the stock-in-trade for the business rather than the stock-in-trade itself. I am unable to accept this argument as correct. The contract entered into by the respondent firm was wholly and exclusively for the purpose of obtaining conch shells, which were its stock-in-trade. As I have stated earlier, the contract granted no interest in the sea, sea bed, or sea water etc. It was simply a contract giving the grantee the rights to pick and carry away conch shells of a specified type and size which of course implied the right to appropriate them as its own property. In my opinion, in a case of this nature no distinction can be drawn in a business sense between the right of picking and carrying away conch shells and the actual buying of them. It is not unusual for business men to secure, by means of a contract, a supply of raw materials or of goods which form their stock-in-trade, extending over several years for the payment of a lump sum down. Even if the conch shells were stored in a godown and the respondent firm was given a right to go and fetch them and so reduce them into its ownership, it could scarcely have been suggested that the price paid was capital expenditure. I may explain what I have in mind by giving a simple illustration. Take the case of a fisherman who sells fish. Fish is his stock-in-trade. He may buy the fish he requires from other persons; or he may obtain the supply of fish he requires by catching the fish of a specified size and type in particular waters over a short period under a contract entered into by him and take them away. I do not think that in a business sense any distinction can be made between the two means of obtaining the stock-in-trade- Both really amount to securing the stock-in-trade rather than acquiring an enduring asset or a permanent right for producing the stock-in-trade. And a business man, like the fisherman in the illustration given above, would indeed be surprised to learn that buying of fish for his business is revenue expenditure whereas catching fish in particular waters under a contract entered into by him for the purpose of obtaining his stock-in-trade on payment of a lump sum down, is capital expenditure11. On behalf of the respondent firm a further question was agitated, namely, whether an allowance for the cost of gathering the conch shells by nets etc. should not be given, even though the rent paid under the contract was not allowable, under S. 10(2) (xv) of the Income-tax Act and a reference was made in this connection to the decision inHood Barrs v. Commissioners of Inland Revenue, (1957) 37 Tax CasI do not think that we are concerned with that matter in the present appeal. The only question which arises for decision is the one referred to the High Court. I have held that the High Court correctly answered the question which related to the payment of the sum of Rs. 6,111/- only. The question having been correctly answered by the High Court, the appeal fails and must be dismissed with costs.
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Vipulbhai Mansingbhai Chaudhary Vs. State Of Gujarat | office bearer in the cooperative movement but to see that you may not participate in such activity and the damage is not caused to the cooperative establishment because of your such activity, it is necessary to keep you away from assuming the office in any cooperative establishment by participating in the election maximum for a period of six years.), therefore, there is a need to disqualify Chaudhary from holding or contesting for any post in any society. The mention of the facts (i) That on account of the misconduct of Chaudhary, the UNION suffered financial loss on a large scale;(ii) That the UNION consists of various smaller societies each of which has a large number of milk suppliers; and(iii) That the Registrar’s proposed to disqualify Chaudhary for maximum period of six years, in our opinion, makes the Show-Cause Notice-II sufficiently compliant with the requirement of Section 76B(2). 50. The final order disqualifying Chaudhary was passed after due compliance with the principles of natural justice. If the Registrar came to the conclusion that Chaudhary should not be permitted to contest any election or hold any office in any society functioning under THE ACT, the same, in our view, can’t be found fault with. Because Chaudhary has already been found guilty of conduct which resulted in a large scale financial irregularities in the conduct of the business of the society and also financial loss to the society. The activity of the UNION is spread over in three districts. The UNION consists of a large number of primary societies. Disqualifying Chaudhary only from the holding post in the UNION is to give him a chance to meddle with the affairs of the societies which are members of the UNION. 51. The only other question remaining to be examined is whether the period of disqualification of six years is consistent with law. Section 76B(2) as of today provides for disqualification of an officer for a period not exceeding six years. Originally the Section provided for disqualification only for four years. But the “four years” period was substituted by “six years” period by the Gujarat Co-operative Societies (Amendment) Act, 2015 (Act No.12 of 2015). 52. All the acts and omissions which formed the basis for action against Chaudhary pertained to the period anterior (Show-Cause Notice-I is dated 12.1.2015 and the Act No.12 of 2015 came into force on 7th April 2015.)to the Act No.12 of 2015. Under Section 7 of the Gujarat General Clauses Act, it is provided that where an enactment is repealed by a subsequent enactment, the repeal does not normally affect any investigation or legal proceedings in respect of any right, privilege, obligations, liability, penalty, forfeiture or punishment and any legal proceeding initiated during the currency of the repealed enactment could be continued as if the repealing Act has not been passed. Repeal could be either of the entire enactment or a part of it. Substitution of parts of an enactment is nothing but pro tanto to repeal those parts. Normally when an enactment is repealed, any action initiated under that enactment dealing its currency should lapse. Because the authority of law for action initiated under an enactment ceases to exist on its repeal rendering the continuation of action without authority of law. To meet such a contingency, the General Clauses Act made a provision under Section 7. It seeks to preserve various rights and obligations acquired or incurred under repealed enactments. It also provides for various other things incidental to preservation of such rights and obligations (Section 7 of The Gujarat General Clauses Act, 1904: “Section 7. Effect of repeal.- Where this Act, or any Bombay Act or Gujarat Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not-(a) revive anything not in force or existing at the time at which the repeal takes effect; or(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accured or incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”). 53. As a logical corollary to the above proposition, no right or liability can be created by a repealing enactment, which is inconsistent with the rights and obligations conferred under the repealed Act unless the repealing enactment makes an express declaration to that effect or adopts some other technique known to law to achieve that purpose. Giving retrospective effect to the repealing enactment is one of the techniques by which the legislature seeks to achieve that purpose.54. There is nothing in Act No.12 of 2015 which warrants an interpretation that the legislature intended to create a disqualification which would run for a maximum period of six years with retrospective effect. The learned Additional Solicitor General Shri Mehta fairly accepted it. In the circumstances, the disqualification of six years upon Chaudhary is not tenable and at best Chaudhary could be disqualified for a maximum period of four years.55. It is next argued on behalf of Chaudhary that the order dated 12.10.2015 does not disclose reasons which prompted the Registrar to impose the maximum penalty and, therefore, that order is vitiated. We do not wish to examine the submission for the reason the judgment under appeal thought it fit that disqualification of Chaudhary for a period of three years would meet the ends of justice. We are of the opinion that having regard to the acts and omissions of Chaudhary forming the basis of disqualification cannot be said to be unreasonable. | 0[ds]In our opinion, LPA No.1302/2015 ought to have been dismissed on the simple ground that the said appeal had become infructuous. Because admittedly the tenure of Chaudhary as Chairman of the Society expired on 01.05.2014. Therefore, SLP (Civil) No.33630/2015 was a futile exercise. We only wonder as to how leave came to granted in the said SLP.The High Court rightly declined to interfere with those findings. We see no error in the decision of the High Court in this regard.We decline to undertake the exercise of examining the correctness of the conclusions recorded by the Registrar.Hence, the submission of Chaudhary both before the High Court and this Court thatI could not have been issued without obtaining the leave of the High Court. Such a submission found favour with the High Court in the judgment in LPA No. 1343 of 2015 when it was called upon to determine the legality of. The High Court did not assign any reason for such a conclusion nor any provision of law or precedent which warrants such a conclusion is referred to. We find it difficult to sustain thesaid conclusion is clearly untenable and is required to beand the first submission of Chaudhary is liable to be rejected. As a consequence, the second submission also falls to ground.38. We shall now deal with the third submission of Chaudhary. The submission in substance is that the acts and omissions which formed the basis of allegations leading to action against Chaudhary under Section 76B are not the individual acts of Chaudhary but the collective acts or omissions of the Committee of the UNION. Therefore, action if at all required must be taken under Section 81 against the entire Committee but not only against Chaudhary. In absence of any action against the Committee, action against Chaudhary is illegal and unsustainable.In substance, THE ACT envisages joint and several action against the officers in their capacity as members of the committee. While Section 81 is designed to deal with the dereliction of the duties by the committee as a body, Section 76B deals with the dereliction of duties of the individual members of the committee. The Registrar is invested by THE ACT with the discretion to choose the proper course of action depending upon the situation. The argument of Chaudhary is not that the Registrar abused his discretion. The submission is that it is not permissible for the Registrar to resort to action only under Section 76B. We reject the submission.45. We shall now examine the fourth submission of Chaudhary that the reliance upon the same set of facts in bothI and II would render theI and the action consequent thereupon illegal.At the outset, we must state that we have examined the tenor of both thenotices and we proceed on the basis that the tenor of both of them is substantially the same if notbasic requirement of(2) is that the power thereunder could be exercised only against an officer of a society who has already been removed from office. Therefore, the factual basis on which the action underion (2) of Section 76B is to be taken is bound to be the same though the reasons and logic on the basis of which action under either of theis to be taken could be different. Depending upon the intensity and gravity of the misconduct in a given case, mere action [under Section 76B(1)] of removal from office might suffice and meet the ends of justice. Whereas in some cases action under both themight be called for. But in no case action only under Section 76B(2) is permissible without taking action under Section 76B(1). It is also possible that in a given case, facts may not only justify but also oblige the Registrar to pass not only an order of removal under(1) but also an order of disqualification under(2) depending upon the nature of the misconduct and the legal obligation flouted by the officer.It all depends upon the facts and circumstances of each and every case and the scheme of the law relevant to such facts. The variables are too many.For the purpose of passing the order of disqualification under Section 76B(2) against Chaudhary, the Registrar rightly proceeded on the basis that there is an earlier order of the Registrar dated 10.3.2013 where charges against Chaudhary had been held proved and the High Court declined to interfere with those findings. He, therefore, opined that he is entitled to proceed to take action under Section 76B(2) on the basis of the same conclusions which rendered Chaudhary liable for removal from office under Section 76B(1). In the process, both in thenotice–II and the order dated 16.12.2015, the Registrar once again repeated all the allegations which formed the basis for the order under Section 76B(1).In our opinion, it was not really necessary. It would have sufficed if the Registrar mentioned the fact that Chaudhary was removed from the office of Chairman of the Society in exercise of the power under Section 76B(1) – the mention of such a fact is also not mandatory. It is only a condition precedent for initiating action under Section 76B(2). The requirements of valid notice under Section 76B(2), in our opinion, are that the notice should indicate broadly the reasons which prompt the Registrar to initiate action and the period for which the person, against whom the action is initiated, is proposed to be disqualified. However, the mentioning of the past history though avoidable does not in any way vitiate thenotice or the final order if they are otherwise in accordance with law.49. In our opinion, there is no legal infirmity either in the logic adopted by the Registrar or the action taken by him under Section 76B(2) on the ground that the Registrar relied upon the same set of facts and the conclusions drawn thereupon for taking action both under Section 76B(1) and Section 76B(2).The final order disqualifying Chaudhary was passed after due compliance with the principles of natural justice. If the Registrar came to the conclusion that Chaudhary should not be permitted to contest any election or hold any office in any society functioning under THE ACT, the same, in our view,be found fault with. Because Chaudhary has already been found guilty of conduct which resulted in a large scale financial irregularities in the conduct of the business of the society and also financial loss to the society. The activity of the UNION is spread over in three districts. The UNION consists of a large number of primary societies. Disqualifying Chaudhary only from the holding post in the UNION is to give him a chance to meddle with the affairs of the societies which are members of the UNION.As a logical corollary to the above proposition, no right or liability can be created by a repealing enactment, which is inconsistent with the rights and obligations conferred under the repealed Act unless the repealing enactment makes an express declaration to that effect or adopts some other technique known to law to achieve that purpose. Giving retrospective effect to the repealing enactment is one of the techniques by which the legislature seeks to achieve that purpose.54. There is nothing in Act No.12 of 2015 which warrants an interpretation that the legislature intended to create a disqualification which would run for a maximum period of six years with retrospective effect. The learned Additional Solicitor General Shri Mehta fairly accepted it. In the circumstances, the disqualification of six years upon Chaudhary is not tenable and at best Chaudhary could be disqualified for a maximum period of four years.55. It is next argued on behalf of Chaudhary that the order dated 12.10.2015 does not disclose reasons which prompted the Registrar to impose the maximum penalty and, therefore, that order is vitiated. We do not wish to examine the submission for the reason the judgment under appeal thought it fit that disqualification of Chaudhary for a period of three years would meet the ends of justice. We are of the opinion that having regard to the acts and omissions of Chaudhary forming the basis of disqualification cannot be said to be unreasonable. | 0 | 11,097 | 1,486 | ### Instruction:
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office bearer in the cooperative movement but to see that you may not participate in such activity and the damage is not caused to the cooperative establishment because of your such activity, it is necessary to keep you away from assuming the office in any cooperative establishment by participating in the election maximum for a period of six years.), therefore, there is a need to disqualify Chaudhary from holding or contesting for any post in any society. The mention of the facts (i) That on account of the misconduct of Chaudhary, the UNION suffered financial loss on a large scale;(ii) That the UNION consists of various smaller societies each of which has a large number of milk suppliers; and(iii) That the Registrar’s proposed to disqualify Chaudhary for maximum period of six years, in our opinion, makes the Show-Cause Notice-II sufficiently compliant with the requirement of Section 76B(2). 50. The final order disqualifying Chaudhary was passed after due compliance with the principles of natural justice. If the Registrar came to the conclusion that Chaudhary should not be permitted to contest any election or hold any office in any society functioning under THE ACT, the same, in our view, can’t be found fault with. Because Chaudhary has already been found guilty of conduct which resulted in a large scale financial irregularities in the conduct of the business of the society and also financial loss to the society. The activity of the UNION is spread over in three districts. The UNION consists of a large number of primary societies. Disqualifying Chaudhary only from the holding post in the UNION is to give him a chance to meddle with the affairs of the societies which are members of the UNION. 51. The only other question remaining to be examined is whether the period of disqualification of six years is consistent with law. Section 76B(2) as of today provides for disqualification of an officer for a period not exceeding six years. Originally the Section provided for disqualification only for four years. But the “four years” period was substituted by “six years” period by the Gujarat Co-operative Societies (Amendment) Act, 2015 (Act No.12 of 2015). 52. All the acts and omissions which formed the basis for action against Chaudhary pertained to the period anterior (Show-Cause Notice-I is dated 12.1.2015 and the Act No.12 of 2015 came into force on 7th April 2015.)to the Act No.12 of 2015. Under Section 7 of the Gujarat General Clauses Act, it is provided that where an enactment is repealed by a subsequent enactment, the repeal does not normally affect any investigation or legal proceedings in respect of any right, privilege, obligations, liability, penalty, forfeiture or punishment and any legal proceeding initiated during the currency of the repealed enactment could be continued as if the repealing Act has not been passed. Repeal could be either of the entire enactment or a part of it. Substitution of parts of an enactment is nothing but pro tanto to repeal those parts. Normally when an enactment is repealed, any action initiated under that enactment dealing its currency should lapse. Because the authority of law for action initiated under an enactment ceases to exist on its repeal rendering the continuation of action without authority of law. To meet such a contingency, the General Clauses Act made a provision under Section 7. It seeks to preserve various rights and obligations acquired or incurred under repealed enactments. It also provides for various other things incidental to preservation of such rights and obligations (Section 7 of The Gujarat General Clauses Act, 1904: “Section 7. Effect of repeal.- Where this Act, or any Bombay Act or Gujarat Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not-(a) revive anything not in force or existing at the time at which the repeal takes effect; or(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accured or incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”). 53. As a logical corollary to the above proposition, no right or liability can be created by a repealing enactment, which is inconsistent with the rights and obligations conferred under the repealed Act unless the repealing enactment makes an express declaration to that effect or adopts some other technique known to law to achieve that purpose. Giving retrospective effect to the repealing enactment is one of the techniques by which the legislature seeks to achieve that purpose.54. There is nothing in Act No.12 of 2015 which warrants an interpretation that the legislature intended to create a disqualification which would run for a maximum period of six years with retrospective effect. The learned Additional Solicitor General Shri Mehta fairly accepted it. In the circumstances, the disqualification of six years upon Chaudhary is not tenable and at best Chaudhary could be disqualified for a maximum period of four years.55. It is next argued on behalf of Chaudhary that the order dated 12.10.2015 does not disclose reasons which prompted the Registrar to impose the maximum penalty and, therefore, that order is vitiated. We do not wish to examine the submission for the reason the judgment under appeal thought it fit that disqualification of Chaudhary for a period of three years would meet the ends of justice. We are of the opinion that having regard to the acts and omissions of Chaudhary forming the basis of disqualification cannot be said to be unreasonable.
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duties of the individual members of the committee. The Registrar is invested by THE ACT with the discretion to choose the proper course of action depending upon the situation. The argument of Chaudhary is not that the Registrar abused his discretion. The submission is that it is not permissible for the Registrar to resort to action only under Section 76B. We reject the submission.45. We shall now examine the fourth submission of Chaudhary that the reliance upon the same set of facts in bothI and II would render theI and the action consequent thereupon illegal.At the outset, we must state that we have examined the tenor of both thenotices and we proceed on the basis that the tenor of both of them is substantially the same if notbasic requirement of(2) is that the power thereunder could be exercised only against an officer of a society who has already been removed from office. Therefore, the factual basis on which the action underion (2) of Section 76B is to be taken is bound to be the same though the reasons and logic on the basis of which action under either of theis to be taken could be different. Depending upon the intensity and gravity of the misconduct in a given case, mere action [under Section 76B(1)] of removal from office might suffice and meet the ends of justice. Whereas in some cases action under both themight be called for. But in no case action only under Section 76B(2) is permissible without taking action under Section 76B(1). It is also possible that in a given case, facts may not only justify but also oblige the Registrar to pass not only an order of removal under(1) but also an order of disqualification under(2) depending upon the nature of the misconduct and the legal obligation flouted by the officer.It all depends upon the facts and circumstances of each and every case and the scheme of the law relevant to such facts. The variables are too many.For the purpose of passing the order of disqualification under Section 76B(2) against Chaudhary, the Registrar rightly proceeded on the basis that there is an earlier order of the Registrar dated 10.3.2013 where charges against Chaudhary had been held proved and the High Court declined to interfere with those findings. He, therefore, opined that he is entitled to proceed to take action under Section 76B(2) on the basis of the same conclusions which rendered Chaudhary liable for removal from office under Section 76B(1). In the process, both in thenotice–II and the order dated 16.12.2015, the Registrar once again repeated all the allegations which formed the basis for the order under Section 76B(1).In our opinion, it was not really necessary. It would have sufficed if the Registrar mentioned the fact that Chaudhary was removed from the office of Chairman of the Society in exercise of the power under Section 76B(1) – the mention of such a fact is also not mandatory. It is only a condition precedent for initiating action under Section 76B(2). The requirements of valid notice under Section 76B(2), in our opinion, are that the notice should indicate broadly the reasons which prompt the Registrar to initiate action and the period for which the person, against whom the action is initiated, is proposed to be disqualified. However, the mentioning of the past history though avoidable does not in any way vitiate thenotice or the final order if they are otherwise in accordance with law.49. In our opinion, there is no legal infirmity either in the logic adopted by the Registrar or the action taken by him under Section 76B(2) on the ground that the Registrar relied upon the same set of facts and the conclusions drawn thereupon for taking action both under Section 76B(1) and Section 76B(2).The final order disqualifying Chaudhary was passed after due compliance with the principles of natural justice. If the Registrar came to the conclusion that Chaudhary should not be permitted to contest any election or hold any office in any society functioning under THE ACT, the same, in our view,be found fault with. Because Chaudhary has already been found guilty of conduct which resulted in a large scale financial irregularities in the conduct of the business of the society and also financial loss to the society. The activity of the UNION is spread over in three districts. The UNION consists of a large number of primary societies. Disqualifying Chaudhary only from the holding post in the UNION is to give him a chance to meddle with the affairs of the societies which are members of the UNION.As a logical corollary to the above proposition, no right or liability can be created by a repealing enactment, which is inconsistent with the rights and obligations conferred under the repealed Act unless the repealing enactment makes an express declaration to that effect or adopts some other technique known to law to achieve that purpose. Giving retrospective effect to the repealing enactment is one of the techniques by which the legislature seeks to achieve that purpose.54. There is nothing in Act No.12 of 2015 which warrants an interpretation that the legislature intended to create a disqualification which would run for a maximum period of six years with retrospective effect. The learned Additional Solicitor General Shri Mehta fairly accepted it. In the circumstances, the disqualification of six years upon Chaudhary is not tenable and at best Chaudhary could be disqualified for a maximum period of four years.55. It is next argued on behalf of Chaudhary that the order dated 12.10.2015 does not disclose reasons which prompted the Registrar to impose the maximum penalty and, therefore, that order is vitiated. We do not wish to examine the submission for the reason the judgment under appeal thought it fit that disqualification of Chaudhary for a period of three years would meet the ends of justice. We are of the opinion that having regard to the acts and omissions of Chaudhary forming the basis of disqualification cannot be said to be unreasonable.
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Hindustan Lever Employees Union & Another Vs. Hindustan Unilever Limited & Another | correctly placed reliance on the observation that pleadings and particulars are necessary to enable the Court to decide the rights of the parties.40. In the instant case the ad-interim application was merely relying upon averments in the interim application. In the interim application specific direction has been given to lead evidence and parties were expected to do so or seek closure of evidence on the basis that they would not lead oral evidence. This was not done at the material time and in the circumstances there were no particulars available before the Tribunal on the basis of which the ad-interim order could have been passed. The approach of the Tribunal amounts to ad-hocism and pending the decision on the main interim application the Tribunal ought not to have proceeded to pass the impugned order as an adhoc measure.41. The other question that arises is whether under Section 10(4) of the Act the grant of ad-interim relief could be described as a decision of matter incidental thereto. Under Section 10(4) in the case of an order referring an Industrial Dispute, the appropriate Government specifies the points of dispute for adjudication and the Tribunal is mandated to confine its adjudication only to those points so referred and matters incidental thereto.(emphasis supplied)42. On plain reading it is obvious that matters incidental thereto used for sub-section would only be a reference to the matters and issues which are incidental to main points, more in the nature of corollaries or different branches of the point in dispute. To conclude that power to grant the ad-interim relief is a matter incidental to the points pending for adjudication in the interim relief application and the application adjudicating to maintainability and jurisdiction of the Tribunal is not in my view said to be matter incidental to points referred. In this behalf it will be useful to refer to the decision of the Supreme Court in the case of MRF Ltd. (supra) in which case, the Court observed prima facie that they could not agree with the view that the interim relief was granted in exercise of powers conferred upon the Tribunal with respect to matters incidental to points of dispute referred for adjudication, although the Supreme Court thereafter left these matters to be decided by the larger bench, it referred to the decision in Grindlays Bank, Lokmat Newspaper and Delhi Cloth and General Mills Ltd. in that regard.43. The ad-interim relief application relies upon the contents of the interim relief application which is deemed to be part of the interim relief application. No other reasons are given for seeking ad-interim relief save and except pendency of the earlier application. Thus, the question that arose for consideration is whether pending the disposal of an application for interim relief and a decision on its maintainability, whether a further application for ad-interim relief in the same terms is permissible.44. In my view in the facts of the present case the answer must be in the negative. The application for ad-interim relief does not set out any new facts or new circumstances, it does not make out any new case. In fact it relies entirely upon the substance of the application for interim reliefs. The only reason given is that the application for interim relief had not been decided. In my view, without alluding to any delay on part of the Tribunal it is clear that the Union had thus shown no inclination to proceed with the application for interim relief. It appears that the union was seeking to take advantage of its own wrong. Surely this ought not to have been permitted.45. Now I deal with the Writ Petition No.8122 of 2016 filed on behalf of the Union. On facts, the issues are largely dealt with in relation to the companys writ petition. In the Unions petition, it is reiterated that the November Settlement did not amount to settlement in conciliation, that it was arrived at in undue haste to deprive the union the benefits of being engaged in conciliation. The challenge in the Unions petition is to the order dated 10th June, 2015. It is contended that the petitioner had reserved its challenge to the order dated 10th June, 2015 so that the application for ad-interim relief could be decided. It is submitted that the impugned order in the Unions petition creates procedure for piece meal evidence and the very same issue would be subject matter of the final award. Moreover, neither of the parties before the Tribunal had sought to lead evidence at the stage of challenge on the aspect of maintainability and on the ground that the impugned order would result in repetitive evidence being led and would unduly delay disposal of the interim application. The submission on the subject matter of the settlement is similar to those of the company. The essential contention is that the November settlement does not amount of settlement under Section 12(3) and 18(3) and therefore would not apply. Secondly, it is void ab initio, apart from being unfair to some workers.46. The gravamen of the Unions grievance is that the contribution of CLS plant to the produce of the company represented by the Union is much more than worker of the tea plant and considering the fact that after the last statement there has been mass erosion due to increase in price index and inflation. The settlement does not therefore grant workers the purchasing power similar to that of earlier settlement.47. In reply filed on behalf of the company, it is pointed out that after the order dated 10th June, 2015 was passed, the Union has not challenged the order for more than ten months and the interim application was posted for leading evidence. The Union did not lead any evidence nor did it close evidence but instead made the adinterim application. It is contended that the ad-interim application was abuse of the process of the Court and the challenge in the present petition is not bonafide. All other allegations are denied. | 0[ds]21. In Hotel Imperial (Supra) the Supreme Court while considering the dispute between three hotels and their workmen about conditions of labour, had occasion to consider the scope of powers of the Industrial Tribunal and in particular an interim or final determination of an industrial dispute and observed that the Tribunal has to confine adjudication to those points and matters incidental thereto. The Supreme Court considered the arguments on behalf of the appellants that the Tribunal was required to confine itself to adjudicating on the points referred and that question of interim relief was not referred to, the same could not be adjudicated upon. The Supreme Court observed that the word incidental thereto under Section 10(4) left no doubt that interim relief, where it is admissible can be granted as a matter incidental to the main question referred to the Tribunal without a specific and express reference.22. In the instant case, however, I find that the specific reference made is pertaining to the applicability of the settlement and whether pending the decision of the main reference, interim application being granted was justified. The Court considered that the word award could mean an interim or final award and if the Tribunal makes an award pertaining to some matters leaving others to be decided at the later stage, that would constitute an interim award, but these awards are not in the nature of interim relief because the Court decided part of the question in issue. Interim relief on the other hand is granted under Section 10(4) of the Industrial Dispute Act, with respect to matters which are incidental to the points of dispute under adjudication. I do not see how this decision comes to the assistance of Mr. Singhvi.23. Vide the impugned order, the Tribunal has effectively granted interim relief, for an application seekingrelief. The situation is unique inasmuch as an interim relief application dated 31st July, 2013 in the form of Exhibit G was already pending before the Tribunal. It is described as Application for interim relief / interim award. The application has gone to great lengths in analysing the financial reports of the company, setting out the settlement(s) which govern service conditions in its various plants and highlighted the fact that the November Settlement is not fair and proper since company has deliberately not granted uniform increase in wages for all the workers in the factory and that the workers covered by the Reference IDR No. 4 of 2013 were granted less wages than the workers in the tea plant.On a fair reading of the above prayers it is evident that what the employees union is seeking is an interim measure of payment of Rs.8500/per month effective from 1st October, 2012 and arrears. A detailed reply has been filed to the interim order on or about 13th March, 2014. An application,was filed soon after the reply was filed on or about 20th April, 2015. Exhibit 35 was filed by the company seeking a decision on maintainability of the reference as a preliminary issue. According to the company the union raised general demand vide letter dated 10th November, 2012 including one that the November Settlement should not be treated as a settlement under Section 18(3) under the Industrial Disputes Act. The Company contended that the November Settlement was signed under Section 12(3) of the Act before the Conciliation Officer and the settlement will be binding pursuant to section 18(3) of the Act. It was contended that the reference was not maintainable since the jurisdiction of Court had been questioned, it was not appropriate that the interim application should be taken up.26. Parties were heard on this application and after hearing parties the Tribunal concluded thatcould be decided along with application for interim relief. Parties were at liberty to lead evidence, if they so desired, in support of their contentions. This order was passed on 10th June, 2015. On 8th July, 2015 the union filed an application atwherein a grievance was made that the application for interim relief was filed on 31st July, 2013 and although two years had passed, hearing had not commenced. The Union adopted the contentions in the statement of claim and interim relief application, as if it was part of the application forrelief. It was contended that even if the company succeeded in the application for interim relief, the workman would be entitled to receive benefits. For almost three years, the workmen had not got a revision in wages and serious prejudice was being caused to them. Relief was sought by way of adinterim arrangement with the company and all benefits of November Settlement were sought for the workmen under the reference who would give productivity and other conditions without prejudice to the rights and contention of the parties.27. In the reply the company once again pointed out that preliminary objection had been taken, that the issue was still at large and that norelief should be granted. The Tribunal being a creature of the Statute and there being no provision, the application forrelief should not be entertained. At the material time no evidence was led by the union which should either have led evidence or filed a purshis declining the opportunity. The impugned order notices the fact that on 10th June, 2015 the Tribunal had passed an order that the interim relief application for deciding the issue on maintainability to be decided together and the parties would be granted opportunity to lead evidence. After dealing with the contention of the parties, the Tribunal was of the view that there was no bar to accept certain terms and conditions under protest. It referred to the three guiding principles for grantingrelief viz. prima facie case balance of convenience and irreparable loss. It had proceeded to hold that the failure of conciliation proceeding and disagreement on terms of settlement is itself proof that there was a prima facie case. It then held that the November Settlement affected some workers but the others deferred with the proposal and the terms of the new/ settlement and that the application seekingrelief was justified since the balance of convenience lay in favour of the workmen seeking such relief. It was contended that the members of the union were not getting special concession. Reference is made to world economy and the fact that inflation affects even these members of the union and that if relief is not granted irreparable loss of good livelihood of workers and their families would be the result. At the same time the employees who were accepting the November Settlement would enjoy all the benefits.The order grants interim relief because the direction contained in clause (ii) is to provide all the benefits of the November Settlement to the workman before the Tribunal till the adjudication of the reference immediately.(emphasis supplied).Thus effectively interim relief has been granted on an application forrelief. The tribunal seems to have lost sight of the fact that what the applicants had sought wasrelief till the decision of the interim application. The interim application and the objection to its maintainability i.e.were still awaiting consideration of the Tribunal. It was for the union to have filed its evidence or conveyed its decision not to lead evidence before the Tribunal. The Union did neither at the time it is another matter altogether that the company also did not lead evidence at the material time.29. Considering the fact that the impugned order virtually granted interim relief in the face of jurisdictional issue being raised, invocation of Writ jurisdiction of this Court in the facts of the case is justified. Normally in any matter of an interim order, interference in the Writ jurisdiction of this Court is not encouraged, however the facts in the present case are unique and to this extent it is useful to keep in mind the decision of the Supreme Court in Tayabhai Bagasarwalla v/s Hind Rubber Industries Pvt. Ltd. (1997) 2 SCC 443 which reiterates that the correct approach would be to decide the issue of jurisdiction at the earliest instance. Although that view was expressed in relation to Section 9A of the Code of Civil Procedure, in the instant case when the jurisdictional issue has been raised the Tribunal must decide that issue before embarking upon consideration of application for interim relief. This fact has been noticed by the Tribunal while passing order dated 10th June, 2015 and given the nature of pleading in the interim application and the reply, the Tribunal thought it fit to permit the parties to lead evidence in support of its contention giving much amount of data in particular on the financial well being of the company as against the reluctance to offer the same benefits of November Settlement to the workers in question. In this view of the matter it is difficult to understand the reasons for the Tribunal having passed the impugned order.30. The impugned order has virtually roughshod over the objections of maintainability raised by the company. The impugned order omits to consider the issue pertaining to the maintainability of the interim application is left undecided. Surely this was not the correct course that should have been adopted by the Tribunal. It was open to the Tribunal to expedite the hearing of the interim application, as also the issue of maintainability clubbed therewith, however, it chose not to do so.31. There is substance in the argument on behalf of the company on this aspect. I find that the order of the Industrial Tribunal is susceptible to misuse as in the instant case where the main reference remains pending along with the interim application and the objection of maintainability. In V. V. F. LtdOrs. vs. Sarva Shramik SanghAnr (supra), while considering the challenge to an interim order of the Industrial Court. An order allowing benefits to certain group of workmen who had not given up their rights to raise the demand on par with other workman who had entered into a settlement, after giving up their rights to raise demand during the currency of the settlement, was frowned upon by a Single Judge of this Court.32. In my view it was necessary in the interest of judicial discipline that the Industrial Tribunal refrained from passing any order on theapplication save and except for its rejection. The application for interim reliefs could have been taken up for hearing. The fact that the unions complaint of the interim application being pending for over two years and it used that period of delay as the reason for seekingorder in the same terms as the interim application met with the approval of the Industrial Tribunal. The impugned order clearly overlooks the fact that the union took no steps to comply with the order of 10th June, 2015. It did not indicate whether it wished to lead evidence nor did it file a closure purshis. Considering the conduct of the Union, passing of the impugned order was clearly not justified. No doubt the effect of the impugned order would be to provide certain benefits of workmen who were agitating the validity to the November Settlement. However, what they sought to do and what they have almost achieved is to reap the benefits of the November Settlement without having to accept the obligation there under. The onerous parts of the settlement are therefore sought to be avoided. 33. Moreover, the prayer in the application is to the effect that the company should give all benefits of the November Settlement to the workmen covered by the Reference. Whereas the prayer in theapplication is in two parts namely seeking the benefits while offering to comply with the other conditions in the settlement including higher productivity, all of which is stated to be without prejudice. The order itself omits to consider the obligation of the workmen to perform in productivity terms and in relation to the other conditions. The effect of the order is clear, all benefits of the November Settlement should be given to the union members immediately. Arrears are also required to be paid but in three installments but there is no direction requiring the workmen to perform in terms of the settlement. Thus workman are not obliged to meet the productivity levels contemplated in the settlement or comply with the other conditions, and that in my view is one more reason the impugned order cannot bethe present case reference had also been made to case of Grindwell Norton (supra) in which the Division Bench of this Court has held that interim relief applications are not barred by principles of res judicata or estoppel. While applying the ratio in Grindwell Norton (supra) it was submitted by Mr. Singhvi that merely because the application for interim relief was pending was no reason to refuse relief in the application forrelief. However, on facts of the case I find that this decision is of no assistance to Mr. Singhvi since the question here is not merely of maintainability of an application for interim relief but that of maintainability of an application forreliefs which relies entirely upon the averments in the application for interimshall be on an undertaking given by each of them that in case they fail in the claim made by them, they will refund the excess amount drawn by them and arrears. In my view, such an order will not be justified in the instant case, at the interim stage since it will put undue pressure on the employees. Moreover in the present case the Union had not opted to lead evidence initially and the tribunal has not yet had the opportunity to consider the merits of the case. Mr. Singhvi had placed reliance in the case of Dena Bank (supra) but that ruling was appropriate in the facts of that case but it is not applicable to the facts at hand because in the present case we are concerned with theorder being passed in terms of interim application without a full fledged hearing of the interim application and without considering the objection to maintainability. Mr. Singhvi placed reliance on the case of Bennett ColemanAnr. (supra) which also will be of no assistance to the Union in view of the view I have takenthe instant case the Union has questioned the companys contention that the settlement was one under Section 18(3).37. In National Engineering Industries Ltd. (supra) the Supreme Court was hearing the appeal against the judgment of Rajasthan High Court which held that a settlement arrived at Conciliation proceedings was binding on the workmen. While dealing with provisions of Section 18(3) of the Act, the Court found that a settlement arrived at in the course of conciliation with a recognised majority Union will be binding on all workmen of the establishment, even those of a minority Union or individual workmen, observing that there can be many splinter groups each forming a separate trade union and if every union having few members goes on raising a dispute, there will be multiple disputes with the State Government making reference again and again. The very purpose of settlement will be defeated. In the facts of that case a notice came to be issued on the proceedings and the reference was stayed on the grounds that there has been no progress made thereafter and even otherwise it found futile to allow the reference to continue after lapse of years. In the facts of the present case the maintainability of the reference has been called into question and a decision is yet been arrivedam of the view that there was no basis for imposing the terms of settlement on the company qua the contesting Union. In the course of his submission In Tata Sons Ltd. (supra) the Tribunal had considered the demands referred for adjudicationrecorded its reasons for not granting the same in the context of settlements placed on record, had considered overall comparable concerns of all demands and has given reasons independently holding that the demands were not justified. The Court found that the contention that the settlement cannot be considered to be fair and proper merely because they were accepted by majority, would not be accepted, and that the workmen who are employed by the company are wise enough to have accepted the benefits of the settlement considering all the facts. Quoting from Peico Electronics the Court observed that the Will of the majority workmen will have to be accepted by the petitioner Union and it cannot persist to have independent and separate adjudication of its own demands.39. In Steel Authority of India, the observations that a definite stand was taken by the employees that they had been working under the contractors and it would not be permissible for them to take a contradictory and inconsistent plea that they were also the workmen of the principal employer and it was impermissible in law to take a mutually destructive plea. In the instant case that is precisely what is sought to be done. In the course of proceedings before the Industrial Court the witness on behalf of Union admitted during the cross examination by the companies counsel that there were 535 workmen who participated in the election process and that limited representatives were authorised to engage in settlement talks on wage revision. Also in 2008 and 2012 also the settlement of wage revision was allowed following the same procedure. The witness further admitted that the settlement as arrived with the conciliation officer and that a corrigendum had been arrived at. The witness admitted that all 535 workmen participated in election process and the representatives so elected. Although Mr. Singhvi objected to the said evidence on the basis that it is hearsay. In National Textile Corporation (supra) Mr.Naik has correctly placed reliance on the observation that pleadings and particulars are necessary to enable the Court to decide the rights of the parties.40. In the instant case theapplication was merely relying upon averments in the interim application. In the interim application specific direction has been given to lead evidence and parties were expected to do so or seek closure of evidence on the basis that they would not lead oral evidence. This was not done at the material time and in the circumstances there were no particulars available before the Tribunal on the basis of which theorder could have been passed. The approach of the Tribunal amounts toand pending the decision on the main interim application the Tribunal ought not to have proceeded to pass the impugned order as an adhoc measure.41. The other question that arises is whether under Section 10(4) of the Act the grant ofrelief could be described as a decision of matter incidental thereto. Under Section 10(4) in the case of an order referring an Industrial Dispute, the appropriate Government specifies the points of dispute for adjudication and the Tribunal is mandated to confine its adjudication only to those points so referred and matters incidental thereto.(emphasis supplied)42. On plain reading it is obvious that matters incidental thereto used forwould only be a reference to the matters and issues which are incidental to main points, more in the nature of corollaries or different branches of the point in dispute. To conclude that power to grant therelief is a matter incidental to the points pending for adjudication in the interim relief application and the application adjudicating to maintainability and jurisdiction of the Tribunal is not in my view said to be matter incidental to points referred. In this behalf it will be useful to refer to the decision of the Supreme Court in the case of MRF Ltd. (supra) in which case, the Court observed prima facie that they could not agree with the view that the interim relief was granted in exercise of powers conferred upon the Tribunal with respect to matters incidental to points of dispute referred for adjudication, although the Supreme Court thereafter left these matters to be decided by the larger bench, it referred to the decision in Grindlays Bank, Lokmat Newspaper and Delhi Cloth and General Mills Ltd. in that regard.43. Therelief application relies upon the contents of the interim relief application which is deemed to be part of the interim relief application. No other reasons are given for seekingrelief save and except pendency of the earlier application. Thus, the question that arose for consideration is whether pending the disposal of an application for interim relief and a decision on its maintainability, whether a further application forrelief in the same terms is permissible.44. In my view in the facts of the present case the answer must be in the negative. The application forrelief does not set out any new facts or new circumstances, it does not make out any new case. In fact it relies entirely upon the substance of the application for interim reliefs. The only reason given is that the application for interim relief had not been decided. In my view, without alluding to any delay on part of the Tribunal it is clear that the Union had thus shown no inclination to proceed with the application for interim relief. It appears that the union was seeking to take advantage of its own wrong. Surely this ought not to have been permitted.45. Now I deal with the Writ Petition No.8122 of 2016 filed on behalf of the Union. On facts, the issues are largely dealt with in relation to the companys writ petition. In the Unions petition, it is reiterated that the November Settlement did not amount to settlement in conciliation, that it was arrived at in undue haste to deprive the union the benefits of being engaged in conciliation. The challenge in the Unions petition is to the order dated 10th June, 2015. It is contended that the petitioner had reserved its challenge to the order dated 10th June, 2015 so that the application forrelief could be decided. It is submitted that the impugned order in the Unions petition creates procedure for piece meal evidence and the very same issue would be subject matter of the final award. Moreover, neither of the parties before the Tribunal had sought to lead evidence at the stage of challenge on the aspect of maintainability and on the ground that the impugned order would result in repetitive evidence being led and would unduly delay disposal of the interim application. The submission on the subject matter of the settlement is similar to those of the company. The essential contention is that the November settlement does not amount of settlement under Section 12(3) and 18(3) and therefore would not apply. Secondly, it is void ab initio, apart from being unfair to some workers.46. The gravamen of the Unions grievance is that the contribution of CLS plant to the produce of the company represented by the Union is much more than worker of the tea plant and considering the fact that after the last statement there has been mass erosion due to increase in price index and inflation. The settlement does not therefore grant workers the purchasing power similar to that of earlier settlement.47. In reply filed on behalf of the company, it is pointed out that after the order dated 10th June, 2015 was passed, the Union has not challenged the order for more than ten months and the interim application was posted for leading evidence. The Union did not lead any evidence nor did it close evidence but instead made the adinterim application. It is contended that theapplication was abuse of the process of the Court and the challenge in the present petition is not bonafide. All other allegations are denied. | 0 | 8,080 | 4,208 | ### Instruction:
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correctly placed reliance on the observation that pleadings and particulars are necessary to enable the Court to decide the rights of the parties.40. In the instant case the ad-interim application was merely relying upon averments in the interim application. In the interim application specific direction has been given to lead evidence and parties were expected to do so or seek closure of evidence on the basis that they would not lead oral evidence. This was not done at the material time and in the circumstances there were no particulars available before the Tribunal on the basis of which the ad-interim order could have been passed. The approach of the Tribunal amounts to ad-hocism and pending the decision on the main interim application the Tribunal ought not to have proceeded to pass the impugned order as an adhoc measure.41. The other question that arises is whether under Section 10(4) of the Act the grant of ad-interim relief could be described as a decision of matter incidental thereto. Under Section 10(4) in the case of an order referring an Industrial Dispute, the appropriate Government specifies the points of dispute for adjudication and the Tribunal is mandated to confine its adjudication only to those points so referred and matters incidental thereto.(emphasis supplied)42. On plain reading it is obvious that matters incidental thereto used for sub-section would only be a reference to the matters and issues which are incidental to main points, more in the nature of corollaries or different branches of the point in dispute. To conclude that power to grant the ad-interim relief is a matter incidental to the points pending for adjudication in the interim relief application and the application adjudicating to maintainability and jurisdiction of the Tribunal is not in my view said to be matter incidental to points referred. In this behalf it will be useful to refer to the decision of the Supreme Court in the case of MRF Ltd. (supra) in which case, the Court observed prima facie that they could not agree with the view that the interim relief was granted in exercise of powers conferred upon the Tribunal with respect to matters incidental to points of dispute referred for adjudication, although the Supreme Court thereafter left these matters to be decided by the larger bench, it referred to the decision in Grindlays Bank, Lokmat Newspaper and Delhi Cloth and General Mills Ltd. in that regard.43. The ad-interim relief application relies upon the contents of the interim relief application which is deemed to be part of the interim relief application. No other reasons are given for seeking ad-interim relief save and except pendency of the earlier application. Thus, the question that arose for consideration is whether pending the disposal of an application for interim relief and a decision on its maintainability, whether a further application for ad-interim relief in the same terms is permissible.44. In my view in the facts of the present case the answer must be in the negative. The application for ad-interim relief does not set out any new facts or new circumstances, it does not make out any new case. In fact it relies entirely upon the substance of the application for interim reliefs. The only reason given is that the application for interim relief had not been decided. In my view, without alluding to any delay on part of the Tribunal it is clear that the Union had thus shown no inclination to proceed with the application for interim relief. It appears that the union was seeking to take advantage of its own wrong. Surely this ought not to have been permitted.45. Now I deal with the Writ Petition No.8122 of 2016 filed on behalf of the Union. On facts, the issues are largely dealt with in relation to the companys writ petition. In the Unions petition, it is reiterated that the November Settlement did not amount to settlement in conciliation, that it was arrived at in undue haste to deprive the union the benefits of being engaged in conciliation. The challenge in the Unions petition is to the order dated 10th June, 2015. It is contended that the petitioner had reserved its challenge to the order dated 10th June, 2015 so that the application for ad-interim relief could be decided. It is submitted that the impugned order in the Unions petition creates procedure for piece meal evidence and the very same issue would be subject matter of the final award. Moreover, neither of the parties before the Tribunal had sought to lead evidence at the stage of challenge on the aspect of maintainability and on the ground that the impugned order would result in repetitive evidence being led and would unduly delay disposal of the interim application. The submission on the subject matter of the settlement is similar to those of the company. The essential contention is that the November settlement does not amount of settlement under Section 12(3) and 18(3) and therefore would not apply. Secondly, it is void ab initio, apart from being unfair to some workers.46. The gravamen of the Unions grievance is that the contribution of CLS plant to the produce of the company represented by the Union is much more than worker of the tea plant and considering the fact that after the last statement there has been mass erosion due to increase in price index and inflation. The settlement does not therefore grant workers the purchasing power similar to that of earlier settlement.47. In reply filed on behalf of the company, it is pointed out that after the order dated 10th June, 2015 was passed, the Union has not challenged the order for more than ten months and the interim application was posted for leading evidence. The Union did not lead any evidence nor did it close evidence but instead made the adinterim application. It is contended that the ad-interim application was abuse of the process of the Court and the challenge in the present petition is not bonafide. All other allegations are denied.
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so elected. Although Mr. Singhvi objected to the said evidence on the basis that it is hearsay. In National Textile Corporation (supra) Mr.Naik has correctly placed reliance on the observation that pleadings and particulars are necessary to enable the Court to decide the rights of the parties.40. In the instant case theapplication was merely relying upon averments in the interim application. In the interim application specific direction has been given to lead evidence and parties were expected to do so or seek closure of evidence on the basis that they would not lead oral evidence. This was not done at the material time and in the circumstances there were no particulars available before the Tribunal on the basis of which theorder could have been passed. The approach of the Tribunal amounts toand pending the decision on the main interim application the Tribunal ought not to have proceeded to pass the impugned order as an adhoc measure.41. The other question that arises is whether under Section 10(4) of the Act the grant ofrelief could be described as a decision of matter incidental thereto. Under Section 10(4) in the case of an order referring an Industrial Dispute, the appropriate Government specifies the points of dispute for adjudication and the Tribunal is mandated to confine its adjudication only to those points so referred and matters incidental thereto.(emphasis supplied)42. On plain reading it is obvious that matters incidental thereto used forwould only be a reference to the matters and issues which are incidental to main points, more in the nature of corollaries or different branches of the point in dispute. To conclude that power to grant therelief is a matter incidental to the points pending for adjudication in the interim relief application and the application adjudicating to maintainability and jurisdiction of the Tribunal is not in my view said to be matter incidental to points referred. In this behalf it will be useful to refer to the decision of the Supreme Court in the case of MRF Ltd. (supra) in which case, the Court observed prima facie that they could not agree with the view that the interim relief was granted in exercise of powers conferred upon the Tribunal with respect to matters incidental to points of dispute referred for adjudication, although the Supreme Court thereafter left these matters to be decided by the larger bench, it referred to the decision in Grindlays Bank, Lokmat Newspaper and Delhi Cloth and General Mills Ltd. in that regard.43. Therelief application relies upon the contents of the interim relief application which is deemed to be part of the interim relief application. No other reasons are given for seekingrelief save and except pendency of the earlier application. Thus, the question that arose for consideration is whether pending the disposal of an application for interim relief and a decision on its maintainability, whether a further application forrelief in the same terms is permissible.44. In my view in the facts of the present case the answer must be in the negative. The application forrelief does not set out any new facts or new circumstances, it does not make out any new case. In fact it relies entirely upon the substance of the application for interim reliefs. The only reason given is that the application for interim relief had not been decided. In my view, without alluding to any delay on part of the Tribunal it is clear that the Union had thus shown no inclination to proceed with the application for interim relief. It appears that the union was seeking to take advantage of its own wrong. Surely this ought not to have been permitted.45. Now I deal with the Writ Petition No.8122 of 2016 filed on behalf of the Union. On facts, the issues are largely dealt with in relation to the companys writ petition. In the Unions petition, it is reiterated that the November Settlement did not amount to settlement in conciliation, that it was arrived at in undue haste to deprive the union the benefits of being engaged in conciliation. The challenge in the Unions petition is to the order dated 10th June, 2015. It is contended that the petitioner had reserved its challenge to the order dated 10th June, 2015 so that the application forrelief could be decided. It is submitted that the impugned order in the Unions petition creates procedure for piece meal evidence and the very same issue would be subject matter of the final award. Moreover, neither of the parties before the Tribunal had sought to lead evidence at the stage of challenge on the aspect of maintainability and on the ground that the impugned order would result in repetitive evidence being led and would unduly delay disposal of the interim application. The submission on the subject matter of the settlement is similar to those of the company. The essential contention is that the November settlement does not amount of settlement under Section 12(3) and 18(3) and therefore would not apply. Secondly, it is void ab initio, apart from being unfair to some workers.46. The gravamen of the Unions grievance is that the contribution of CLS plant to the produce of the company represented by the Union is much more than worker of the tea plant and considering the fact that after the last statement there has been mass erosion due to increase in price index and inflation. The settlement does not therefore grant workers the purchasing power similar to that of earlier settlement.47. In reply filed on behalf of the company, it is pointed out that after the order dated 10th June, 2015 was passed, the Union has not challenged the order for more than ten months and the interim application was posted for leading evidence. The Union did not lead any evidence nor did it close evidence but instead made the adinterim application. It is contended that theapplication was abuse of the process of the Court and the challenge in the present petition is not bonafide. All other allegations are denied.
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Bank of Maharashtra Vs. Automotive Engineering Company | for further scrutiny as to its genuineness, the bank should be held liable for negligence and the protection under section 10 and section 89 of the Negotiable Instruments Act is not available to the bank. He has, therefore, contended that the appeal should be allowed by this court and the judgment and decree of the High Court affirming those of the lower appellate court and the trial court should be set aside and the suit should be decreed. 7. Learned counsel for the respondent, however, disputed the contentions made on behalf of the appellant and it has been contended by learned counsel that the negligence attributable to a banker must depend on the facts and circumstances of each case. In the instant case, the trial court has come to the finding that even on a closer scrutiny without the aid of the ultraviolet ray lamp, some infirmity could have been noticed particularly with reference to the number of the month. The amount under the cheque was quite heavy and in such circumstances the banker was under a legal obligation to exercise further scrutiny before passing the same. It is an admitted position that the cost of an ultraviolet ray lamp was only Rs. 400 and the bank provided such ultraviolet ray lamps to other branches but such lamp was not provided to the branch in question although admittedly such branch is situated in an industrial area on the outskirts of the city of Bombay. It is also on record that the branch was having heavy commercial transactions. In the aforesaid facts, there was no earthly reason why the usual precaution of scrutinising the cheque under the ultraviolet ray lamp was not taken by the bank. If on such lapse, the concurrent findings have been made by the courts below including the High Court that the bank was guilty of negligence and the protection under the Negotiable Instruments Act was not available, such finding is not required to be upset by this court. He has, therefore, submitted that the appeal should be dismissed with costs.After considering the relevant facts and circumstances of the case and the contentions made by learned counsel for the parties, it appears to us that the court of appeal below has categorically come to the finding that on visual examination no sign of forgery or tampering with the writings on the cheque could be detected. There is also evidence on record which has not been upset by the court of appeal below that the then agent of the bank had taken care to verify the serial number of the cheque, the signature on the cheque with the specimen signature of the constituent, namely, the defendant and on a scrutiny of the cheque visually no defect could be detected by him. It also transpires from the evidence that the defendant had sufficient amount in the bank to cover the said payment of Rs. 6, 500 at the relevant date when the cheque was presented for payment. 8. Under section 31 of the Negotiable Instruments Act, the appellant-bank had a liability to honour the said cheque and make payment if the cheque was otherwise in order. "Payment in due course" under section 10 of the Negotiable Instruments Act means payment in accordance with the apparent tenor of the instrument in good faith and without negligence. In the facts of the case, there was no occasion to doubt about the genuineness of the cheque from the apparent tenor of the instrument. There is nothing on record from which it can be held that the payment of the said cheque has not been made in good faith. Although no strait-jacket formula can be laid down to cover each case of negligence of a banker and the question of negligence requires to be decided in the facts and circumstances in each case, it does not appear to us that the appellant-bank can be held to be guilty of negligence simply because an ultraviolet ray lamp was not kept in the branch and the cheque in question was not subjected to scrutiny under the ultraviolet ray lamp. It has not been established in evidence that invariably the other branches of the appellant-bank or the other commercial banks had been following a practice of scrutinising each and every cheque under the ultraviolet ray lamp or that there was any prevalent practice to scrutinise cheques involving more than a particular amount under such lamp by way of extra precaution. In such circumstances, it cannot be contended as a correct legal proposition that the bank in order to get absolved from the liability of negligence, was under an obligation to verify the cheque for further scrutiny under advanced technology or for that matter under an ultraviolet ray lamp apart from visual scrutiny. The cost of the ultraviolet ray lamp was only nominal and it might have been desirable to keep such lamp in the branch in question to take aid in appropriate cases. But even then, it cannot be contended that although no forgery could be detected on visual scrutiny on the apparent tenor of the cheque in question and reasonable care by way of scrutiny of the cheque with reference to its serial number, verification of the specimen signature of the signatory of the cheque had been made, the bank officials should have resorted to scrutiny of the cheque under an ultraviolet ray lamp by way of additional precaution and by not taking such extra precaution the bank may be held guilty of negligence. 9. We do not think that there was any justification for the courts below to proceed on the footing that the bank had failed to take reasonable care in passing the cheque for payment without subjecting it to further scrutiny under an ultraviolet ray lamp because the branch was on the outskirts of the metropolitan city of Bombay and in an industrial area where such forgery was rampant, particularly when other branches of the appellant-bank were provided with such a lamp. | 1[ds]In the instant case, the trial court has come to the finding that even on a closer scrutiny without the aid of the ultraviolet ray lamp, some infirmity could have been noticed particularly with reference to the number of the month. The amount under the cheque was quite heavy and in such circumstances the banker was under a legal obligation to exercise further scrutiny before passing the same. It is an admitted position that the cost of an ultraviolet ray lamp was only Rs. 400 and the bank provided such ultraviolet ray lamps to other branches but such lamp was not provided to the branch in question although admittedly such branch is situated in an industrial area on the outskirts of the city of Bombay. It is also on record that the branch was having heavy commercial transactions. In the aforesaid facts, there was no earthly reason why the usual precaution of scrutinising the cheque under the ultraviolet ray lamp was not taken by the bank. If on such lapse, the concurrent findings have been made by the courts below including the High Court that the bank was guilty of negligence and the protection under the Negotiable Instruments Act was not available, such finding is not required to be upset by this court. He has, therefore, submitted that the appeal should be dismissed with costs.After considering the relevant facts and circumstances of the case and the contentions made by learned counsel for the parties, it appears to us that the court of appeal below has categorically come to the finding that on visual examination no sign of forgery or tampering with the writings on the cheque could be detected. There is also evidence on record which has not been upset by the court of appeal below that the then agent of the bank had taken care to verify the serial number of the cheque, the signature on the cheque with the specimen signature of the constituent, namely, the defendant and on a scrutiny of the cheque visually no defect could be detected by him. It also transpires from the evidence that the defendant had sufficient amount in the bank to cover the said payment of Rs. 6, 500 at the relevant date when the cheque was presented for payment.Under section 31 of the Negotiable Instruments Act, thehad a liability to honour the said cheque and make payment if the cheque was otherwise in order.ot; under section 10 of the Negotiable Instruments Act means payment in accordance with the apparent tenor of the instrument in good faith and without negligence. In the facts of the case, there was no occasion to doubt about the genuineness of the cheque from the apparent tenor of the instrument. There is nothing on record from which it can be held that the payment of the said cheque has not been made in good faith. Although noformula can be laid down to cover each case of negligence of a banker and the question of negligence requires to be decided in the facts and circumstances in each case, it does not appear to us that thecan be held to be guilty of negligence simply because an ultraviolet ray lamp was not kept in the branch and the cheque in question was not subjected to scrutiny under the ultraviolet ray lamp. It has not been established in evidence that invariably the other branches of theor the other commercial banks had been following a practice of scrutinising each and every cheque under the ultraviolet ray lamp or that there was any prevalent practice to scrutinise cheques involving more than a particular amount under such lamp by way of extra precaution. In such circumstances, it cannot be contended as a correct legal proposition that the bank in order to get absolved from the liability of negligence, was under an obligation to verify the cheque for further scrutiny under advanced technology or for that matter under an ultraviolet ray lamp apart from visual scrutiny. The cost of the ultraviolet ray lamp was only nominal and it might have been desirable to keep such lamp in the branch in question to take aid in appropriate cases. But even then, it cannot be contended that although no forgery could be detected on visual scrutiny on the apparent tenor of the cheque in question and reasonable care by way of scrutiny of the cheque with reference to its serial number, verification of the specimen signature of the signatory of the cheque had been made, the bank officials should have resorted to scrutiny of the cheque under an ultraviolet ray lamp by way of additional precaution and by not taking such extra precaution the bank may be held guilty of negligence.We do not think that there was any justification for the courts below to proceed on the footing that the bank had failed to take reasonable care in passing the cheque for payment without subjecting it to further scrutiny under an ultraviolet ray lamp because the branch was on the outskirts of the metropolitan city of Bombay and in an industrial area where such forgery was rampant, particularly when other branches of thewere provided with such a lamp. | 1 | 3,929 | 909 | ### 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:
for further scrutiny as to its genuineness, the bank should be held liable for negligence and the protection under section 10 and section 89 of the Negotiable Instruments Act is not available to the bank. He has, therefore, contended that the appeal should be allowed by this court and the judgment and decree of the High Court affirming those of the lower appellate court and the trial court should be set aside and the suit should be decreed. 7. Learned counsel for the respondent, however, disputed the contentions made on behalf of the appellant and it has been contended by learned counsel that the negligence attributable to a banker must depend on the facts and circumstances of each case. In the instant case, the trial court has come to the finding that even on a closer scrutiny without the aid of the ultraviolet ray lamp, some infirmity could have been noticed particularly with reference to the number of the month. The amount under the cheque was quite heavy and in such circumstances the banker was under a legal obligation to exercise further scrutiny before passing the same. It is an admitted position that the cost of an ultraviolet ray lamp was only Rs. 400 and the bank provided such ultraviolet ray lamps to other branches but such lamp was not provided to the branch in question although admittedly such branch is situated in an industrial area on the outskirts of the city of Bombay. It is also on record that the branch was having heavy commercial transactions. In the aforesaid facts, there was no earthly reason why the usual precaution of scrutinising the cheque under the ultraviolet ray lamp was not taken by the bank. If on such lapse, the concurrent findings have been made by the courts below including the High Court that the bank was guilty of negligence and the protection under the Negotiable Instruments Act was not available, such finding is not required to be upset by this court. He has, therefore, submitted that the appeal should be dismissed with costs.After considering the relevant facts and circumstances of the case and the contentions made by learned counsel for the parties, it appears to us that the court of appeal below has categorically come to the finding that on visual examination no sign of forgery or tampering with the writings on the cheque could be detected. There is also evidence on record which has not been upset by the court of appeal below that the then agent of the bank had taken care to verify the serial number of the cheque, the signature on the cheque with the specimen signature of the constituent, namely, the defendant and on a scrutiny of the cheque visually no defect could be detected by him. It also transpires from the evidence that the defendant had sufficient amount in the bank to cover the said payment of Rs. 6, 500 at the relevant date when the cheque was presented for payment. 8. Under section 31 of the Negotiable Instruments Act, the appellant-bank had a liability to honour the said cheque and make payment if the cheque was otherwise in order. "Payment in due course" under section 10 of the Negotiable Instruments Act means payment in accordance with the apparent tenor of the instrument in good faith and without negligence. In the facts of the case, there was no occasion to doubt about the genuineness of the cheque from the apparent tenor of the instrument. There is nothing on record from which it can be held that the payment of the said cheque has not been made in good faith. Although no strait-jacket formula can be laid down to cover each case of negligence of a banker and the question of negligence requires to be decided in the facts and circumstances in each case, it does not appear to us that the appellant-bank can be held to be guilty of negligence simply because an ultraviolet ray lamp was not kept in the branch and the cheque in question was not subjected to scrutiny under the ultraviolet ray lamp. It has not been established in evidence that invariably the other branches of the appellant-bank or the other commercial banks had been following a practice of scrutinising each and every cheque under the ultraviolet ray lamp or that there was any prevalent practice to scrutinise cheques involving more than a particular amount under such lamp by way of extra precaution. In such circumstances, it cannot be contended as a correct legal proposition that the bank in order to get absolved from the liability of negligence, was under an obligation to verify the cheque for further scrutiny under advanced technology or for that matter under an ultraviolet ray lamp apart from visual scrutiny. The cost of the ultraviolet ray lamp was only nominal and it might have been desirable to keep such lamp in the branch in question to take aid in appropriate cases. But even then, it cannot be contended that although no forgery could be detected on visual scrutiny on the apparent tenor of the cheque in question and reasonable care by way of scrutiny of the cheque with reference to its serial number, verification of the specimen signature of the signatory of the cheque had been made, the bank officials should have resorted to scrutiny of the cheque under an ultraviolet ray lamp by way of additional precaution and by not taking such extra precaution the bank may be held guilty of negligence. 9. We do not think that there was any justification for the courts below to proceed on the footing that the bank had failed to take reasonable care in passing the cheque for payment without subjecting it to further scrutiny under an ultraviolet ray lamp because the branch was on the outskirts of the metropolitan city of Bombay and in an industrial area where such forgery was rampant, particularly when other branches of the appellant-bank were provided with such a lamp.
### Response:
1
### Explanation:
In the instant case, the trial court has come to the finding that even on a closer scrutiny without the aid of the ultraviolet ray lamp, some infirmity could have been noticed particularly with reference to the number of the month. The amount under the cheque was quite heavy and in such circumstances the banker was under a legal obligation to exercise further scrutiny before passing the same. It is an admitted position that the cost of an ultraviolet ray lamp was only Rs. 400 and the bank provided such ultraviolet ray lamps to other branches but such lamp was not provided to the branch in question although admittedly such branch is situated in an industrial area on the outskirts of the city of Bombay. It is also on record that the branch was having heavy commercial transactions. In the aforesaid facts, there was no earthly reason why the usual precaution of scrutinising the cheque under the ultraviolet ray lamp was not taken by the bank. If on such lapse, the concurrent findings have been made by the courts below including the High Court that the bank was guilty of negligence and the protection under the Negotiable Instruments Act was not available, such finding is not required to be upset by this court. He has, therefore, submitted that the appeal should be dismissed with costs.After considering the relevant facts and circumstances of the case and the contentions made by learned counsel for the parties, it appears to us that the court of appeal below has categorically come to the finding that on visual examination no sign of forgery or tampering with the writings on the cheque could be detected. There is also evidence on record which has not been upset by the court of appeal below that the then agent of the bank had taken care to verify the serial number of the cheque, the signature on the cheque with the specimen signature of the constituent, namely, the defendant and on a scrutiny of the cheque visually no defect could be detected by him. It also transpires from the evidence that the defendant had sufficient amount in the bank to cover the said payment of Rs. 6, 500 at the relevant date when the cheque was presented for payment.Under section 31 of the Negotiable Instruments Act, thehad a liability to honour the said cheque and make payment if the cheque was otherwise in order.ot; under section 10 of the Negotiable Instruments Act means payment in accordance with the apparent tenor of the instrument in good faith and without negligence. In the facts of the case, there was no occasion to doubt about the genuineness of the cheque from the apparent tenor of the instrument. There is nothing on record from which it can be held that the payment of the said cheque has not been made in good faith. Although noformula can be laid down to cover each case of negligence of a banker and the question of negligence requires to be decided in the facts and circumstances in each case, it does not appear to us that thecan be held to be guilty of negligence simply because an ultraviolet ray lamp was not kept in the branch and the cheque in question was not subjected to scrutiny under the ultraviolet ray lamp. It has not been established in evidence that invariably the other branches of theor the other commercial banks had been following a practice of scrutinising each and every cheque under the ultraviolet ray lamp or that there was any prevalent practice to scrutinise cheques involving more than a particular amount under such lamp by way of extra precaution. In such circumstances, it cannot be contended as a correct legal proposition that the bank in order to get absolved from the liability of negligence, was under an obligation to verify the cheque for further scrutiny under advanced technology or for that matter under an ultraviolet ray lamp apart from visual scrutiny. The cost of the ultraviolet ray lamp was only nominal and it might have been desirable to keep such lamp in the branch in question to take aid in appropriate cases. But even then, it cannot be contended that although no forgery could be detected on visual scrutiny on the apparent tenor of the cheque in question and reasonable care by way of scrutiny of the cheque with reference to its serial number, verification of the specimen signature of the signatory of the cheque had been made, the bank officials should have resorted to scrutiny of the cheque under an ultraviolet ray lamp by way of additional precaution and by not taking such extra precaution the bank may be held guilty of negligence.We do not think that there was any justification for the courts below to proceed on the footing that the bank had failed to take reasonable care in passing the cheque for payment without subjecting it to further scrutiny under an ultraviolet ray lamp because the branch was on the outskirts of the metropolitan city of Bombay and in an industrial area where such forgery was rampant, particularly when other branches of thewere provided with such a lamp.
|
Kanpur Suraksha Karamchari Union (Regd.) Vs. Union of India & Others | in such canteens. It further provides that a canteen managing committee should be established under clause (20) of rule 68 of the Rules. The Managing Committee shall consist of an equal number of persons nominated by the occupier and elected by workers. The number of elected workers shall be in the proportion of 1 for every 11000 workers employed in the factory, provided that in no case shall there be more than 5 or less than 2 workers on the Committee. The object of providing for the establishment of Canteen Managing Committee is to see that the employees of the factories have some amount of say in the management of the affairs of the canteens but the obligation to establish a canteen under section 46 of the Act is imposed on the occupier. The expression `occupier of a factory is defined in section 2(n) of the Act as the person who has ultimate control over the affairs of the factory, provided that (i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier; (ii) in the case of a company, any one of the directors shall be deemed to be the occupier; and (iii) in the case of a factory owned or controlled by the Central Government or and State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier. Under clause (iii) of section 2(n) of the Act, in the case of a factory owned or controlled by the Central Government, the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be the occupier. The person so appointed to manage the affairs of the factory of that Central Government is under an obligation to comply with section 36 of the Act by establishing a canteen for the benefit of workers the Canteen Managing Committee, as stated above, has to be established under rule 66 of the Rules to manage the affairs of the canteen. The functions of the Canteen Management Committee are merely advisory. It is appointed by the Manager appointed section 7 of the Act and the Manager is required to consult the Canteen Managing Committee from time to time as to the quality and quantity of foodstuff served in the canteen, that arrangement of the menus, times of meals in the canteen etc. The food. drink and other items served in the can teen are required to be sold on `no profit basis and the prices charged are subject to the approval of the Managing Committee. The accounts pertaining to a canteen in a Government factory may be audited by its departmental Accounts Officers.The building for the canteen has to be provided by the occupier. Under sub-rule (13) of rule 68 of the rules there shall be provided and maintained sufficient utensils, crockery, cutlery, furniture and any other equipment necessary for the efficient running of the canteen. Suitable clean clothes for the employees serving in the canteen shall also be provided and maintained. Thus the basic requirements of the canteen, such as buildings, utensils, crockery, cultery, furniture etc. should be supplied by the occupier. Under the Ministry of Defence letter dated 24.5.1965 the prices of food, drink and articles supplies for the canteens are to be subsidised. A canteen is an integral part of the Defence establishment belonging to the Union of India. There cannot be a canteen without sufficient number of workers working in the canteen. The have to be appointed by the occupier. Otherwise he would not be full complying with section 46 of the Act. The Managing Committee cannot be the employer of those workmen in the true sense of the term. The Managing Committee constituted under section 46 of the Act which is not an incorporated body and whose financial position is uncertain cannot be considered to be the employer who h as to bear the legal responsibilities under the several labour laws in face in India. We may, however, add that in the case of a canteen run b a contractor or a co-operative society or some other body the position may be different. But even then there has to be a Managing Committee if such a canteen is treated as a canteen established for purposes of satisfying the requirements of section 46 of the Act. Even in this case the contractor or the co-operative society or some other body will be the employer but no the Managing Committee. In this situation it is difficult to hold that the employees in canteens established under section 46 off the Act would not be employees of the occupier, even though for purposes of management a Canteen Managing Committee, whose functions are advisory as pointed out above, has to be constituted under the Rules. It is also not shown that on the workers in the canteens becoming the Government employees on 22.10. 1980 they were paid by the previous management, named, the Canteen Managing Committees constituted under rule 68 of the Rules any compensation in lieu of the services rendered by the m prior to 22.10.1980. We find it, therefore, difficult to hold that the employees working in such canteens were not employees of the factories in which the canteen had been established. If they are employees of the factories in which the canteen is established. the service rendered by them in these factories should be counted as part of the qualifying service for pension. Hence, the plea of the Union Government that the service rendered by the workers in canteens established under section 46 of the Act on and after 22.10.1980 alone can be included in the qualifying service for pension cannot be accepted. The period prior to 22.10.1980 also should be counted for purposes of pension.We, | 1[ds]5. Rule 68 of the U.P. Factories Rules, 1950 (hereinafter referred to as `the Rules) framed under sections 46 and 112 of the Act gives particulars regarding the type of building that should be made available for running a canteen and the manner in which accounts should be maintained in such canteens. It further provides that a canteen managing committee should be established under clause (20) of rule 68 of the Rules. The Managing Committee shall consist of an equal number of persons nominated by the occupier and elected by workers. The number of elected workers shall be in the proportion of 1 for every 11000 workers employed in the factory, provided that in no case shall there be more than 5 or less than 2 workers on the Committee. The object of providing for the establishment of Canteen Managing Committee is to see that the employees of the factories have some amount of say in the management of the affairs of the canteens but the obligation to establish a canteen under section 46 of the Act is imposed on the occupier. The expression `occupier of a factory is defined in section 2(n) of the Act as the person who has ultimate control over the affairs of the factory, provided that (i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier; (ii) in the case of a company, any one of the directors shall be deemed to be the occupier; and (iii) in the case of a factory owned or controlled by the Central Government or and State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier. Under clause (iii) of section 2(n) of the Act, in the case of a factory owned or controlled by the Central Government, the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be the occupier. The person so appointed to manage the affairs of the factory of that Central Government is under an obligation to comply with section 36 of the Act by establishing a canteen for the benefit of workers the Canteen Managing Committee, as stated above, has to be established under rule 66 of the Rules to manage the affairs of the canteen. The functions of the Canteen Management Committee are merely advisory. It is appointed by the Manager appointed section 7 of the Act and the Manager is required to consult the Canteen Managing Committee from time to time as to the quality and quantity of foodstuff served in the canteen, that arrangement of the menus, times of meals in the canteen etc. The food. drink and other items served in the can teen are required to be sold on `no profit basis and the prices charged are subject to the approval of the Managing Committee. The accounts pertaining to a canteen in a Government factory may be audited by its departmental Accounts Officers.The building for the canteen has to be provided by the occupier. Under(13) of rule 68 of the rules there shall be provided and maintained sufficient utensils, crockery, cutlery, furniture and any other equipment necessary for the efficient running of the canteen. Suitable clean clothes for the employees serving in the canteen shall also be provided and maintained. Thus the basic requirements of the canteen, such as buildings, utensils, crockery, cultery, furniture etc. should be supplied by the occupier. Under the Ministry of Defence letter dated 24.5.1965 the prices of food, drink and articles supplies for the canteens are to be subsidised. A canteen is an integral part of the Defence establishment belonging to the Union of India. There cannot be a canteen without sufficient number of workers working in the canteen. The have to be appointed by the occupier. Otherwise he would not be full complying with section 46 of the Act. The Managing Committee cannot be the employer of those workmen in the true sense of the term. The Managing Committee constituted under section 46 of the Act which is not an incorporated body and whose financial position is uncertain cannot be considered to be the employer who h as to bear the legal responsibilities under the several labour laws in face in India. We may, however, add that in the case of a canteen run b a contractor or asociety or some other body the position may be different. But even then there has to be a Managing Committee if such a canteen is treated as a canteen established for purposes of satisfying the requirements of section 46 of the Act. Even in this case the contractor or thesociety or some other body will be the employer but no the Managing Committee. In this situation it is difficult to hold that the employees in canteens established under section 46 off the Act would not be employees of the occupier, even though for purposes of management a Canteen Managing Committee, whose functions are advisory as pointed out above, has to be constituted under the Rules. It is also not shown that on the workers in the canteens becoming the Government employees on 22.10. 1980 they were paid by the previous management, named, the Canteen Managing Committees constituted under rule 68 of the Rules any compensation in lieu of the services rendered by the m prior to 22.10.1980. We find it, therefore, difficult to hold that the employees working in such canteens were not employees of the factories in which the canteen had been established. If they are employees of the factories in which the canteen is established. the service rendered by them in these factories should be counted as part of the qualifying service for pension. Hence, the plea of the Union Government that the service rendered by the workers in canteens established under section 46 of the Act on and after 22.10.1980 alone can be included in the qualifying service for pension cannot be accepted. The period prior to 22.10.1980 also should be counted for purposes of pension. | 1 | 2,813 | 1,149 | ### 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:
in such canteens. It further provides that a canteen managing committee should be established under clause (20) of rule 68 of the Rules. The Managing Committee shall consist of an equal number of persons nominated by the occupier and elected by workers. The number of elected workers shall be in the proportion of 1 for every 11000 workers employed in the factory, provided that in no case shall there be more than 5 or less than 2 workers on the Committee. The object of providing for the establishment of Canteen Managing Committee is to see that the employees of the factories have some amount of say in the management of the affairs of the canteens but the obligation to establish a canteen under section 46 of the Act is imposed on the occupier. The expression `occupier of a factory is defined in section 2(n) of the Act as the person who has ultimate control over the affairs of the factory, provided that (i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier; (ii) in the case of a company, any one of the directors shall be deemed to be the occupier; and (iii) in the case of a factory owned or controlled by the Central Government or and State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier. Under clause (iii) of section 2(n) of the Act, in the case of a factory owned or controlled by the Central Government, the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be the occupier. The person so appointed to manage the affairs of the factory of that Central Government is under an obligation to comply with section 36 of the Act by establishing a canteen for the benefit of workers the Canteen Managing Committee, as stated above, has to be established under rule 66 of the Rules to manage the affairs of the canteen. The functions of the Canteen Management Committee are merely advisory. It is appointed by the Manager appointed section 7 of the Act and the Manager is required to consult the Canteen Managing Committee from time to time as to the quality and quantity of foodstuff served in the canteen, that arrangement of the menus, times of meals in the canteen etc. The food. drink and other items served in the can teen are required to be sold on `no profit basis and the prices charged are subject to the approval of the Managing Committee. The accounts pertaining to a canteen in a Government factory may be audited by its departmental Accounts Officers.The building for the canteen has to be provided by the occupier. Under sub-rule (13) of rule 68 of the rules there shall be provided and maintained sufficient utensils, crockery, cutlery, furniture and any other equipment necessary for the efficient running of the canteen. Suitable clean clothes for the employees serving in the canteen shall also be provided and maintained. Thus the basic requirements of the canteen, such as buildings, utensils, crockery, cultery, furniture etc. should be supplied by the occupier. Under the Ministry of Defence letter dated 24.5.1965 the prices of food, drink and articles supplies for the canteens are to be subsidised. A canteen is an integral part of the Defence establishment belonging to the Union of India. There cannot be a canteen without sufficient number of workers working in the canteen. The have to be appointed by the occupier. Otherwise he would not be full complying with section 46 of the Act. The Managing Committee cannot be the employer of those workmen in the true sense of the term. The Managing Committee constituted under section 46 of the Act which is not an incorporated body and whose financial position is uncertain cannot be considered to be the employer who h as to bear the legal responsibilities under the several labour laws in face in India. We may, however, add that in the case of a canteen run b a contractor or a co-operative society or some other body the position may be different. But even then there has to be a Managing Committee if such a canteen is treated as a canteen established for purposes of satisfying the requirements of section 46 of the Act. Even in this case the contractor or the co-operative society or some other body will be the employer but no the Managing Committee. In this situation it is difficult to hold that the employees in canteens established under section 46 off the Act would not be employees of the occupier, even though for purposes of management a Canteen Managing Committee, whose functions are advisory as pointed out above, has to be constituted under the Rules. It is also not shown that on the workers in the canteens becoming the Government employees on 22.10. 1980 they were paid by the previous management, named, the Canteen Managing Committees constituted under rule 68 of the Rules any compensation in lieu of the services rendered by the m prior to 22.10.1980. We find it, therefore, difficult to hold that the employees working in such canteens were not employees of the factories in which the canteen had been established. If they are employees of the factories in which the canteen is established. the service rendered by them in these factories should be counted as part of the qualifying service for pension. Hence, the plea of the Union Government that the service rendered by the workers in canteens established under section 46 of the Act on and after 22.10.1980 alone can be included in the qualifying service for pension cannot be accepted. The period prior to 22.10.1980 also should be counted for purposes of pension.We,
### Response:
1
### Explanation:
in which accounts should be maintained in such canteens. It further provides that a canteen managing committee should be established under clause (20) of rule 68 of the Rules. The Managing Committee shall consist of an equal number of persons nominated by the occupier and elected by workers. The number of elected workers shall be in the proportion of 1 for every 11000 workers employed in the factory, provided that in no case shall there be more than 5 or less than 2 workers on the Committee. The object of providing for the establishment of Canteen Managing Committee is to see that the employees of the factories have some amount of say in the management of the affairs of the canteens but the obligation to establish a canteen under section 46 of the Act is imposed on the occupier. The expression `occupier of a factory is defined in section 2(n) of the Act as the person who has ultimate control over the affairs of the factory, provided that (i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier; (ii) in the case of a company, any one of the directors shall be deemed to be the occupier; and (iii) in the case of a factory owned or controlled by the Central Government or and State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier. Under clause (iii) of section 2(n) of the Act, in the case of a factory owned or controlled by the Central Government, the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be the occupier. The person so appointed to manage the affairs of the factory of that Central Government is under an obligation to comply with section 36 of the Act by establishing a canteen for the benefit of workers the Canteen Managing Committee, as stated above, has to be established under rule 66 of the Rules to manage the affairs of the canteen. The functions of the Canteen Management Committee are merely advisory. It is appointed by the Manager appointed section 7 of the Act and the Manager is required to consult the Canteen Managing Committee from time to time as to the quality and quantity of foodstuff served in the canteen, that arrangement of the menus, times of meals in the canteen etc. The food. drink and other items served in the can teen are required to be sold on `no profit basis and the prices charged are subject to the approval of the Managing Committee. The accounts pertaining to a canteen in a Government factory may be audited by its departmental Accounts Officers.The building for the canteen has to be provided by the occupier. Under(13) of rule 68 of the rules there shall be provided and maintained sufficient utensils, crockery, cutlery, furniture and any other equipment necessary for the efficient running of the canteen. Suitable clean clothes for the employees serving in the canteen shall also be provided and maintained. Thus the basic requirements of the canteen, such as buildings, utensils, crockery, cultery, furniture etc. should be supplied by the occupier. Under the Ministry of Defence letter dated 24.5.1965 the prices of food, drink and articles supplies for the canteens are to be subsidised. A canteen is an integral part of the Defence establishment belonging to the Union of India. There cannot be a canteen without sufficient number of workers working in the canteen. The have to be appointed by the occupier. Otherwise he would not be full complying with section 46 of the Act. The Managing Committee cannot be the employer of those workmen in the true sense of the term. The Managing Committee constituted under section 46 of the Act which is not an incorporated body and whose financial position is uncertain cannot be considered to be the employer who h as to bear the legal responsibilities under the several labour laws in face in India. We may, however, add that in the case of a canteen run b a contractor or asociety or some other body the position may be different. But even then there has to be a Managing Committee if such a canteen is treated as a canteen established for purposes of satisfying the requirements of section 46 of the Act. Even in this case the contractor or thesociety or some other body will be the employer but no the Managing Committee. In this situation it is difficult to hold that the employees in canteens established under section 46 off the Act would not be employees of the occupier, even though for purposes of management a Canteen Managing Committee, whose functions are advisory as pointed out above, has to be constituted under the Rules. It is also not shown that on the workers in the canteens becoming the Government employees on 22.10. 1980 they were paid by the previous management, named, the Canteen Managing Committees constituted under rule 68 of the Rules any compensation in lieu of the services rendered by the m prior to 22.10.1980. We find it, therefore, difficult to hold that the employees working in such canteens were not employees of the factories in which the canteen had been established. If they are employees of the factories in which the canteen is established. the service rendered by them in these factories should be counted as part of the qualifying service for pension. Hence, the plea of the Union Government that the service rendered by the workers in canteens established under section 46 of the Act on and after 22.10.1980 alone can be included in the qualifying service for pension cannot be accepted. The period prior to 22.10.1980 also should be counted for purposes of pension.
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The Associated Industries (P) Ltd Vs. The Regional Provident Fundcommissioner, Kerala Trivandrum | found to fall under S. 1 (3) (a).9. On the other hand, the case of the Oudh Sugar Mills stood on a different basis. The primary activity of the mills was the manufacture of hydrogenated vegetable oil named Vanasada and its by-products, such as soap, oil-cakes, etc. It appeared that a department of the Mills manufactured containers and this part of the industrial activity of the Mills fell under Sch. I. Evidence, however, showed that the fabrication of the containers had been undertaken by the Mills only as a feeder activity which was integrally connected with its primary business of producing and marketing vegetable oil, and since the primary business was outside Sch. I, the factory as a whole was held to be outside S. 1 (3) (a).10. It is true that since this Court dealt with the two respective cases of the Company and the Mills in one judgment, the test as to the principal character of the industrial activity of one industry in relation to the character of the minor industry came to be considered; but the application of the said test became necessary essentially because of the case of the Oudh Sugar Mills. In the case of the Company, however, the several activities were not minor or subsidiary, but were independent, and it was held that the factory of the company fell under S. 1 (3) (a).Therefore, in our opinion, there is no scope for the argument in the present case that the engineering industry which the appellant runs is not the primary or dominant industry but the manufacture of tiles is. Mr. Pai attempted to argue that though engineering industry run by the appellants factory falls under Sch. I, it employs only 24 workers, whereas the tiles industry employs more than 50. He also relied on the fact that the tiles factory was started in 1943 and the engineering works in 1950, and his argument was that judged in the light of the fact that the tiles industry was started first, as well as considered by the application of the test of the strength of the employees working in the two industries, tiles industry should be treated to be the main, dominant and primary industry of the factory, and so, the factory, as a whole, should be held to be outside S. 1 (3) (a). In our opinion, this argument is plainly untenable. If the tiles industry and the engineering industry are independent of each other, then no question arises as to which is principal and which is subsidiary. As soon as it is shown that the factory is carrying on two industries independent of each other one of which falls under Sch. I, it becomes a composite factory to which S. 1 (3) (a) applies. When S. 1 (3) (a) requires that the factory should be engaged in any industry specified in Sch. I. considerations as to whether the industrial activity is major or minor can arise only where some activities are dominant and others are of the nature of feeding activities, but not otherwise. Where the industrial activities are independent and the factory is running separate industries within the same premises and as part of the same establishment and under the same licence, it is difficult to accept the argument that in dealing with such a factory, enquiry would be relevant as to which of the industries is dominant and primary, and which is not. Therefore, in our opinion, the High Court was plainly right in rejecting the appellants case that its factory did not attract the provisions of S. 1 (3) (a) of the Act.11. Mr. Pai wanted to contend that if the appellants factory is treated as falling under S. 1 (3) (a). complications may arise by reason of the fact that the rate of contribution initially prescribed by S. 6 has been amended in 1962 by the Amending Act No. 48 of 1962. Section 6 of the unamended Act provides, inter alia, that the contribution to be paid by the employer to the fund shall be 6-1/4% of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees, and the employees contribution shall be equal to the contribution payable by the employer in respect of him. This section further provided that the employee was competent to make a higher contribution not exceeding 8 and one-third per cent of his emoluments specified in the said section. By the amendment made in 1962, this rate has been enhanced to 8% in respect of any establishment or class of establishments which the Central Government, after making such enquiry as it deems fit, may by notification in the Official Gazette specify. We were told that in regard to the engineering industry, this amended sub-section has been extended by a notification, and Mr. Pais apprehension is that if the factory of the appellant is held to be an establishment to which S. 1 (3) (a) applies on the ground that it is a composite factory which runs several industries one of which falls under Sch. I, it is likely that the increased rate may be made applicable to the factory as a whole. We ought to add that Mr. Pai conceded that subsequent to the decision of the appellants writ petition in the High Court, the tiles industry has also been included in Sch. I, but the revised rate has been made applicable to it. Mr. Pai contends that if the factory is treated as falling under S. 1 (3) (a), distinction should be made in the different industries run by the factory for the purpose of calculating the contribution of the employer to the Provident Fund. We do not propose to deal with this contention in the present appeal. That is a matter which may well have to be decided by the respondent, and it is not open to Mr. Pai to request this Court to decide such a hypothetical question in the present proceedings. | 0[ds]6. Having dealt with this aspect of the matter, this Court proceeded to consider the question as to whether numerical requirement of the employment of 50 persons, as the section then stood, applied to the factory or to the industry, and it held that the said test applied not to the industry but to the factory. Thus, the conclusion was that in order that a factory should fall under S. 1 (3) (a), it must be shown that it is engaged in any such industry as is specified in Sch. I, and the number of its employees should not be less than 50.7. This decision makes it clear that S. 1 (3) (a) is not confined only to factories which are exclusively engaged in industrial work to which Sch. I applies, but it also takes in composite factories which run industries some of which fall under Sch. I and some do not. In order to make the position clear let us state the true legal position in respect of the scope of the application of S. 1 (3) (a) in categorical terms. If the factory carries on one industry which falls under Sch. I and satisfies the requirement as to the number of employees prescribed by the section, it clearly falls under S. 1 (3) (a). If the factory carries on more than one industry all of which fell under Sch. I and its numerical strength satisfies the test prescribed in that behalf, it is an establishment under S. 1 (3) (a). If a factory runs more industries than one, one of which is the primary and the dominant industry and the other are its feeders and can be regarded as subsidiary, minor, or incidental industries in that sense, then the character of the dominant and primary industry will determine the question as to whether the factory is an establishment under S. 1 (3) (a) or not. If the dominant and primary industry falls under Sch. I, the fact that the subsidiary industries do not fall under Sch. I will not help to exclude the application of S. 1 (3) (a). If the dominant and primary industry does not fall under Sch. I, but one or more subsidiary, incidental, minor and feeding industries fall under Sch I, then S. 1 (3) (a) apply. If the factory runs more industries than one all of which are independent of each other and constitute separate and distinct industries, S. 1 (3) (a) will apply to the factory even if one or more, but not all of the industries run by the factory fall under Sch. I. The question about the subsidiary, minor, or feeding industries can legitimately arise only where it is shown that the factory is really started for the purpose of running one primary industry and has undertaken other subsidiary industries only for the purpose of sub serving and feeding the purposes and objects of the primary industry; in such a case, these minor industries merely serve as departments of the primary industry; otherwise if the industries run by a factory are independent, or are not so integrated as to be treated as part of the same industry, the question about the principal and the dominant character of one industry as against the minor or subsidiary character of another industry does not fall to be considered.It is true that since this Court dealt with the two respective cases of the Company and the Mills in one judgment, the test as to the principal character of the industrial activity of one industry in relation to the character of the minor industry came to be considered; but the application of the said test became necessary essentially because of the case of the Oudh Sugar Mills. In the case of the Company, however, the several activities were not minor or subsidiary, but were independent, and it was held that the factory of the company fell under S. 1 (3) (a).Therefore, in our opinion, there is no scope for the argument in the present case that the engineering industry which the appellant runs is not the primary or dominant industry but the manufacture of tilesour opinion, this argument is plainly untenable. If the tiles industry and the engineering industry are independent of each other, then no question arises as to which is principal and which is subsidiary. As soon as it is shown that the factory is carrying on two industries independent of each other one of which falls under Sch. I, it becomes a composite factory to which S. 1 (3) (a) applies. When S. 1 (3) (a) requires that the factory should be engaged in any industry specified in Sch. I. considerations as to whether the industrial activity is major or minor can arise only where some activities are dominant and others are of the nature of feeding activities, but not otherwise. Where the industrial activities are independent and the factory is running separate industries within the same premises and as part of the same establishment and under the same licence, it is difficult to accept the argument that in dealing with such a factory, enquiry would be relevant as to which of the industries is dominant and primary, and which is not. Therefore, in our opinion, the High Court was plainly right in rejecting the appellants case that its factory did not attract the provisions of S. 1 (3) (a) of the6 of the unamended Act provides, inter alia, that the contribution to be paid by the employer to the fund shall be 6-1/4% of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees, and the employees contribution shall be equal to the contribution payable by the employer in respect of him. This section further provided that the employee was competent to make a higher contribution not exceeding 8 and one-third per cent of his emoluments specified in the said section. By the amendment made in 1962, this rate has been enhanced to 8% in respect of any establishment or class of establishments which the Central Government, after making such enquiry as it deems fit, may by notification in the Official Gazette specify. We were told that in regard to the engineering industry, this amended sub-section has been extended by a notification, and Mr. Pais apprehension is that if the factory of the appellant is held to be an establishment to which S. 1 (3) (a) applies on the ground that it is a composite factory which runs several industries one of which falls under Sch. I, it is likely that the increased rate may be made applicable to the factory as a whole. We ought to add that Mr. Pai conceded that subsequent to the decision of the appellants writ petition in the High Court, the tiles industry has also been included in Sch. I, but the revised rate has been made applicable to it.Pai contends that if the factory is treated as falling under S. 1 (3) (a), distinction should be made in the different industries run by the factory for the purpose of calculating the contribution of the employer to the Providentdo not propose to deal with this contention in the present appeal. That is a matter which may well have to be decided by the respondent, and it is not open to Mr. Pai to request this Court to decide such a hypothetical question in the present proceedings. | 0 | 3,098 | 1,405 | ### Instruction:
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found to fall under S. 1 (3) (a).9. On the other hand, the case of the Oudh Sugar Mills stood on a different basis. The primary activity of the mills was the manufacture of hydrogenated vegetable oil named Vanasada and its by-products, such as soap, oil-cakes, etc. It appeared that a department of the Mills manufactured containers and this part of the industrial activity of the Mills fell under Sch. I. Evidence, however, showed that the fabrication of the containers had been undertaken by the Mills only as a feeder activity which was integrally connected with its primary business of producing and marketing vegetable oil, and since the primary business was outside Sch. I, the factory as a whole was held to be outside S. 1 (3) (a).10. It is true that since this Court dealt with the two respective cases of the Company and the Mills in one judgment, the test as to the principal character of the industrial activity of one industry in relation to the character of the minor industry came to be considered; but the application of the said test became necessary essentially because of the case of the Oudh Sugar Mills. In the case of the Company, however, the several activities were not minor or subsidiary, but were independent, and it was held that the factory of the company fell under S. 1 (3) (a).Therefore, in our opinion, there is no scope for the argument in the present case that the engineering industry which the appellant runs is not the primary or dominant industry but the manufacture of tiles is. Mr. Pai attempted to argue that though engineering industry run by the appellants factory falls under Sch. I, it employs only 24 workers, whereas the tiles industry employs more than 50. He also relied on the fact that the tiles factory was started in 1943 and the engineering works in 1950, and his argument was that judged in the light of the fact that the tiles industry was started first, as well as considered by the application of the test of the strength of the employees working in the two industries, tiles industry should be treated to be the main, dominant and primary industry of the factory, and so, the factory, as a whole, should be held to be outside S. 1 (3) (a). In our opinion, this argument is plainly untenable. If the tiles industry and the engineering industry are independent of each other, then no question arises as to which is principal and which is subsidiary. As soon as it is shown that the factory is carrying on two industries independent of each other one of which falls under Sch. I, it becomes a composite factory to which S. 1 (3) (a) applies. When S. 1 (3) (a) requires that the factory should be engaged in any industry specified in Sch. I. considerations as to whether the industrial activity is major or minor can arise only where some activities are dominant and others are of the nature of feeding activities, but not otherwise. Where the industrial activities are independent and the factory is running separate industries within the same premises and as part of the same establishment and under the same licence, it is difficult to accept the argument that in dealing with such a factory, enquiry would be relevant as to which of the industries is dominant and primary, and which is not. Therefore, in our opinion, the High Court was plainly right in rejecting the appellants case that its factory did not attract the provisions of S. 1 (3) (a) of the Act.11. Mr. Pai wanted to contend that if the appellants factory is treated as falling under S. 1 (3) (a). complications may arise by reason of the fact that the rate of contribution initially prescribed by S. 6 has been amended in 1962 by the Amending Act No. 48 of 1962. Section 6 of the unamended Act provides, inter alia, that the contribution to be paid by the employer to the fund shall be 6-1/4% of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees, and the employees contribution shall be equal to the contribution payable by the employer in respect of him. This section further provided that the employee was competent to make a higher contribution not exceeding 8 and one-third per cent of his emoluments specified in the said section. By the amendment made in 1962, this rate has been enhanced to 8% in respect of any establishment or class of establishments which the Central Government, after making such enquiry as it deems fit, may by notification in the Official Gazette specify. We were told that in regard to the engineering industry, this amended sub-section has been extended by a notification, and Mr. Pais apprehension is that if the factory of the appellant is held to be an establishment to which S. 1 (3) (a) applies on the ground that it is a composite factory which runs several industries one of which falls under Sch. I, it is likely that the increased rate may be made applicable to the factory as a whole. We ought to add that Mr. Pai conceded that subsequent to the decision of the appellants writ petition in the High Court, the tiles industry has also been included in Sch. I, but the revised rate has been made applicable to it. Mr. Pai contends that if the factory is treated as falling under S. 1 (3) (a), distinction should be made in the different industries run by the factory for the purpose of calculating the contribution of the employer to the Provident Fund. We do not propose to deal with this contention in the present appeal. That is a matter which may well have to be decided by the respondent, and it is not open to Mr. Pai to request this Court to decide such a hypothetical question in the present proceedings.
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that behalf, it is an establishment under S. 1 (3) (a). If a factory runs more industries than one, one of which is the primary and the dominant industry and the other are its feeders and can be regarded as subsidiary, minor, or incidental industries in that sense, then the character of the dominant and primary industry will determine the question as to whether the factory is an establishment under S. 1 (3) (a) or not. If the dominant and primary industry falls under Sch. I, the fact that the subsidiary industries do not fall under Sch. I will not help to exclude the application of S. 1 (3) (a). If the dominant and primary industry does not fall under Sch. I, but one or more subsidiary, incidental, minor and feeding industries fall under Sch I, then S. 1 (3) (a) apply. If the factory runs more industries than one all of which are independent of each other and constitute separate and distinct industries, S. 1 (3) (a) will apply to the factory even if one or more, but not all of the industries run by the factory fall under Sch. I. The question about the subsidiary, minor, or feeding industries can legitimately arise only where it is shown that the factory is really started for the purpose of running one primary industry and has undertaken other subsidiary industries only for the purpose of sub serving and feeding the purposes and objects of the primary industry; in such a case, these minor industries merely serve as departments of the primary industry; otherwise if the industries run by a factory are independent, or are not so integrated as to be treated as part of the same industry, the question about the principal and the dominant character of one industry as against the minor or subsidiary character of another industry does not fall to be considered.It is true that since this Court dealt with the two respective cases of the Company and the Mills in one judgment, the test as to the principal character of the industrial activity of one industry in relation to the character of the minor industry came to be considered; but the application of the said test became necessary essentially because of the case of the Oudh Sugar Mills. In the case of the Company, however, the several activities were not minor or subsidiary, but were independent, and it was held that the factory of the company fell under S. 1 (3) (a).Therefore, in our opinion, there is no scope for the argument in the present case that the engineering industry which the appellant runs is not the primary or dominant industry but the manufacture of tilesour opinion, this argument is plainly untenable. If the tiles industry and the engineering industry are independent of each other, then no question arises as to which is principal and which is subsidiary. As soon as it is shown that the factory is carrying on two industries independent of each other one of which falls under Sch. I, it becomes a composite factory to which S. 1 (3) (a) applies. When S. 1 (3) (a) requires that the factory should be engaged in any industry specified in Sch. I. considerations as to whether the industrial activity is major or minor can arise only where some activities are dominant and others are of the nature of feeding activities, but not otherwise. Where the industrial activities are independent and the factory is running separate industries within the same premises and as part of the same establishment and under the same licence, it is difficult to accept the argument that in dealing with such a factory, enquiry would be relevant as to which of the industries is dominant and primary, and which is not. Therefore, in our opinion, the High Court was plainly right in rejecting the appellants case that its factory did not attract the provisions of S. 1 (3) (a) of the6 of the unamended Act provides, inter alia, that the contribution to be paid by the employer to the fund shall be 6-1/4% of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees, and the employees contribution shall be equal to the contribution payable by the employer in respect of him. This section further provided that the employee was competent to make a higher contribution not exceeding 8 and one-third per cent of his emoluments specified in the said section. By the amendment made in 1962, this rate has been enhanced to 8% in respect of any establishment or class of establishments which the Central Government, after making such enquiry as it deems fit, may by notification in the Official Gazette specify. We were told that in regard to the engineering industry, this amended sub-section has been extended by a notification, and Mr. Pais apprehension is that if the factory of the appellant is held to be an establishment to which S. 1 (3) (a) applies on the ground that it is a composite factory which runs several industries one of which falls under Sch. I, it is likely that the increased rate may be made applicable to the factory as a whole. We ought to add that Mr. Pai conceded that subsequent to the decision of the appellants writ petition in the High Court, the tiles industry has also been included in Sch. I, but the revised rate has been made applicable to it.Pai contends that if the factory is treated as falling under S. 1 (3) (a), distinction should be made in the different industries run by the factory for the purpose of calculating the contribution of the employer to the Providentdo not propose to deal with this contention in the present appeal. That is a matter which may well have to be decided by the respondent, and it is not open to Mr. Pai to request this Court to decide such a hypothetical question in the present proceedings.
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ASSISTANT COMMISSIONER (ST) & ORS Vs. M/S SATYAM SHIVAM PAPERS PVT. LIMITED & ANR | of the High Court, had been of imposing only nominal costs of Rs. 10,000/- (Rupees Ten Thousand) on the respondent No. 2 of the writ petition, who is petitioner No.2 before us. 2. The consideration of the High court in the order impugned and the material placed on record leaves nothing to doubt that the attempted inference on the part of petitioner No.2, that the writ petitioner was evading tax because the e-way bill had expired a day earlier, had not only been baseless but even the intent behind the proceedings against the writ petitioner was also questionable, particularly when it was found that the goods in question, after being detained were, strangely, kept in the house of a relative of the petitioner No.2 for 16 days and not at any other designated place for their safe custody. 3. The High Court has, inter alia, found that: 41. ……It was the duty of 2nd respondent to consider the explanation offered by petitioner as to why the goods could not have been delivered during the validity of the e-way bill, and instead he is harping on the fact that the e-way bill is not extended even four(04) hours before the expiry or four(04) hours after the expiry, which is untenable. The 2nd respondent merely states in the counter affidavit that there is clear evasion of tax and so he did not consider the said explanations. This is plainly arbitrary and illegal and violates Article 14 of the Constitution of India, because there is no denial by the 2nd respondent of the traffic blockage at Basher Bagh due to the anti CAA and NRC agitation on 4.01.2020 up to 8.30 pm preventing the movement of auto trolley for otherwise the goods would have been delivered on that day itself. He also does not dispute that 04.01.2020 was a Saturday, 05.01.2020 was a Sunday, and the next working day was only 06.01.2020. 4. The High Court has further found and, in our view, rightly so thus: 42. How the 2nd respondent could have drawn an inference that petitioner is evading tax merely because the e-way bill has expired, is also nowhere explained in the counter- affidavit. In our considered opinion, there was no material before the 2nd respondent to come to the conclusion that there was evasion of tax by the petitioner merely on account of lapsing of time mentioned in the e-way bill because even the 2nd respondent does not say that there was any evidence of attempt to sell the goods to somebody else on 06.01.2020. On account of non-extension of the validity of the e-way bill by petitioner or the auto trolley driver, no presumption can be drawn that there was an intention to evade tax. 5. The High Court has also commented on blatant abuse of the power by the petitioner No.2 and has deprecated his conduct in the following words: 43. We are also unable to understand why the goods were kept for safe keeping at Marredpally, Secunderabad in the House of a relative of 2nd respondent for (16) days and not in any other place designated for such safe keeping by the State. 44. In our opinion, there has been a blatant abuse of power by the 2nd respondent in collecting from the petitioner tax and penalty both under the CGST and SGST and compelling the petitioner to pay Rs.69,000/- by such conduct. 45. We deprecate the conduct of 2nd respondent in not even adverting to the response given by petitioner to the Form GST MOV-07 in Form GST MOV-09 and his deliberate intention to treat the validity of the expiry on the eway bill as amounting to evasion of tax without any evidence of such evasion of tax by the petitioner. 6. Having said so, the High Court has set aside the levy of tax and penalty of Rs. 69,000/- (Rupees Sixty-nine Thousand) while imposing costs of Rs. 10,000/- (Rupees Ten Thousand), payable by the petitioner No.2 to the writ petitioner within four weeks. 7. The analysis and reasoning of the High Court commends to us, when it is noticed that the High Court has meticulously examined and correctly found that no fault or intent to evade tax could have been inferred against the writ petitioner. However, as commented at the outset, the amount of costs as awarded by the High Court in this matter is rather on the lower side. Considering the overall conduct of the petitioner No.2 and the corresponding harassment faced by the writ petitioner we find it rather necessary to enhance the amount of costs. 8. Upon our having made these observations, learned counsel for the petitioners has attempted to submit that the questions of law in this case, as regards the operation and effect of Section 129 of Telangana Goods and Services Tax Act, 2017 and violation by the writ petitioner, may be kept open. The submissions sought to be made do not give rise to even a question of fact what to say of a question of law. As noticed hereinabove, on the facts of this case, it has precisely been found that there was no intent on the part of the writ petitioner to evade tax and rather, the goods in question could not be taken to the destination within time for the reasons beyond the control of the writ petitioner. When the undeniable facts, including the traffic blockage due to agitation, are taken into consideration, the State alone remains responsible for not providing smooth passage of traffic. 9. Having said so; having found no question of law being involved; and having found this petition itself being rather mis- conceived , we are constrained to enhance the amount of costs imposed in this matter by the High Court. 10. The High Court has awarded costs to the writ petitioner in the sum of Rs. 10,000/- (Rupees Ten Thousand) in relation to tax and penalty of Rs.69,000/- (Rupees Sixty-nine Thousand) that was sought to be imposed by the petitioner No.2. | 0[ds]1. Having heard learned counsel for the petitioners and having perused the material placed on record, we find no reason to consider interference in the well-considered and well-reasoned order dated 2nd June, 2021, as passed by the the High Court for the State of Telangana at Hyderabad in Writ Petition No. 9688 of 2020. Rather, we are clearly of the view that the error, if any, on the part of the High Court, had been of imposing only nominal costs of Rs. 10,000/- (Rupees Ten Thousand) on the respondent No. 2 of the writ petition, who is petitioner No.2 before us.7. The analysis and reasoning of the High Court commends to us, when it is noticed that the High Court has meticulously examined and correctly found that no fault or intent to evade tax could have been inferred against the writ petitioner. However, as commented at the outset, the amount of costs as awarded by the High Court in this matter is rather on the lower side. Considering the overall conduct of the petitioner No.2 and the corresponding harassment faced by the writ petitioner we find it rather necessary to enhance the amount of costs.The submissions sought to be made do not give rise to even a question of fact what to say of a question of law. As noticed hereinabove, on the facts of this case, it has precisely been found that there was no intent on the part of the writ petitioner to evade tax and rather, the goods in question could not be taken to the destination within time for the reasons beyond the control of the writ petitioner. When the undeniable facts, including the traffic blockage due to agitation, are taken into consideration, the State alone remains responsible for not providing smooth passage of traffic.9. Having said so; having found no question of law being involved; and having found this petition itself being rather mis- conceived , we are constrained to enhance the amount of costs imposed in this matter by the High Court.10. The High Court has awarded costs to the writ petitioner in the sum of Rs. 10,000/- (Rupees Ten Thousand) in relation to tax and penalty of Rs.69,000/- (Rupees Sixty-nine Thousand) that was sought to be imposed by the petitioner No.2. | 0 | 1,179 | 421 | ### Instruction:
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of the High Court, had been of imposing only nominal costs of Rs. 10,000/- (Rupees Ten Thousand) on the respondent No. 2 of the writ petition, who is petitioner No.2 before us. 2. The consideration of the High court in the order impugned and the material placed on record leaves nothing to doubt that the attempted inference on the part of petitioner No.2, that the writ petitioner was evading tax because the e-way bill had expired a day earlier, had not only been baseless but even the intent behind the proceedings against the writ petitioner was also questionable, particularly when it was found that the goods in question, after being detained were, strangely, kept in the house of a relative of the petitioner No.2 for 16 days and not at any other designated place for their safe custody. 3. The High Court has, inter alia, found that: 41. ……It was the duty of 2nd respondent to consider the explanation offered by petitioner as to why the goods could not have been delivered during the validity of the e-way bill, and instead he is harping on the fact that the e-way bill is not extended even four(04) hours before the expiry or four(04) hours after the expiry, which is untenable. The 2nd respondent merely states in the counter affidavit that there is clear evasion of tax and so he did not consider the said explanations. This is plainly arbitrary and illegal and violates Article 14 of the Constitution of India, because there is no denial by the 2nd respondent of the traffic blockage at Basher Bagh due to the anti CAA and NRC agitation on 4.01.2020 up to 8.30 pm preventing the movement of auto trolley for otherwise the goods would have been delivered on that day itself. He also does not dispute that 04.01.2020 was a Saturday, 05.01.2020 was a Sunday, and the next working day was only 06.01.2020. 4. The High Court has further found and, in our view, rightly so thus: 42. How the 2nd respondent could have drawn an inference that petitioner is evading tax merely because the e-way bill has expired, is also nowhere explained in the counter- affidavit. In our considered opinion, there was no material before the 2nd respondent to come to the conclusion that there was evasion of tax by the petitioner merely on account of lapsing of time mentioned in the e-way bill because even the 2nd respondent does not say that there was any evidence of attempt to sell the goods to somebody else on 06.01.2020. On account of non-extension of the validity of the e-way bill by petitioner or the auto trolley driver, no presumption can be drawn that there was an intention to evade tax. 5. The High Court has also commented on blatant abuse of the power by the petitioner No.2 and has deprecated his conduct in the following words: 43. We are also unable to understand why the goods were kept for safe keeping at Marredpally, Secunderabad in the House of a relative of 2nd respondent for (16) days and not in any other place designated for such safe keeping by the State. 44. In our opinion, there has been a blatant abuse of power by the 2nd respondent in collecting from the petitioner tax and penalty both under the CGST and SGST and compelling the petitioner to pay Rs.69,000/- by such conduct. 45. We deprecate the conduct of 2nd respondent in not even adverting to the response given by petitioner to the Form GST MOV-07 in Form GST MOV-09 and his deliberate intention to treat the validity of the expiry on the eway bill as amounting to evasion of tax without any evidence of such evasion of tax by the petitioner. 6. Having said so, the High Court has set aside the levy of tax and penalty of Rs. 69,000/- (Rupees Sixty-nine Thousand) while imposing costs of Rs. 10,000/- (Rupees Ten Thousand), payable by the petitioner No.2 to the writ petitioner within four weeks. 7. The analysis and reasoning of the High Court commends to us, when it is noticed that the High Court has meticulously examined and correctly found that no fault or intent to evade tax could have been inferred against the writ petitioner. However, as commented at the outset, the amount of costs as awarded by the High Court in this matter is rather on the lower side. Considering the overall conduct of the petitioner No.2 and the corresponding harassment faced by the writ petitioner we find it rather necessary to enhance the amount of costs. 8. Upon our having made these observations, learned counsel for the petitioners has attempted to submit that the questions of law in this case, as regards the operation and effect of Section 129 of Telangana Goods and Services Tax Act, 2017 and violation by the writ petitioner, may be kept open. The submissions sought to be made do not give rise to even a question of fact what to say of a question of law. As noticed hereinabove, on the facts of this case, it has precisely been found that there was no intent on the part of the writ petitioner to evade tax and rather, the goods in question could not be taken to the destination within time for the reasons beyond the control of the writ petitioner. When the undeniable facts, including the traffic blockage due to agitation, are taken into consideration, the State alone remains responsible for not providing smooth passage of traffic. 9. Having said so; having found no question of law being involved; and having found this petition itself being rather mis- conceived , we are constrained to enhance the amount of costs imposed in this matter by the High Court. 10. The High Court has awarded costs to the writ petitioner in the sum of Rs. 10,000/- (Rupees Ten Thousand) in relation to tax and penalty of Rs.69,000/- (Rupees Sixty-nine Thousand) that was sought to be imposed by the petitioner No.2.
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### Explanation:
1. Having heard learned counsel for the petitioners and having perused the material placed on record, we find no reason to consider interference in the well-considered and well-reasoned order dated 2nd June, 2021, as passed by the the High Court for the State of Telangana at Hyderabad in Writ Petition No. 9688 of 2020. Rather, we are clearly of the view that the error, if any, on the part of the High Court, had been of imposing only nominal costs of Rs. 10,000/- (Rupees Ten Thousand) on the respondent No. 2 of the writ petition, who is petitioner No.2 before us.7. The analysis and reasoning of the High Court commends to us, when it is noticed that the High Court has meticulously examined and correctly found that no fault or intent to evade tax could have been inferred against the writ petitioner. However, as commented at the outset, the amount of costs as awarded by the High Court in this matter is rather on the lower side. Considering the overall conduct of the petitioner No.2 and the corresponding harassment faced by the writ petitioner we find it rather necessary to enhance the amount of costs.The submissions sought to be made do not give rise to even a question of fact what to say of a question of law. As noticed hereinabove, on the facts of this case, it has precisely been found that there was no intent on the part of the writ petitioner to evade tax and rather, the goods in question could not be taken to the destination within time for the reasons beyond the control of the writ petitioner. When the undeniable facts, including the traffic blockage due to agitation, are taken into consideration, the State alone remains responsible for not providing smooth passage of traffic.9. Having said so; having found no question of law being involved; and having found this petition itself being rather mis- conceived , we are constrained to enhance the amount of costs imposed in this matter by the High Court.10. The High Court has awarded costs to the writ petitioner in the sum of Rs. 10,000/- (Rupees Ten Thousand) in relation to tax and penalty of Rs.69,000/- (Rupees Sixty-nine Thousand) that was sought to be imposed by the petitioner No.2.
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Eastern Coalfields Ltd Vs. M/S Tetulia Coke Plant(P)Ltd | orders of this Court, the leading case being Ashoka Smokeless Coal India (P) Ltd. (supra) which was taken up for consideration along with connected matters and the same were disposed of by this Court and the said decision is now reported in (2007) 2 SCC 640. By the aforesaid judgment, this Court has upheld the challenge of the writ petitioners to the legality of the scheme of e-auction. The aforesaid prayer of the writ petitioners was accepted and this Court held that the scheme of e-auction was invalid and violative of Article 14 of the Constitution of India and, therefore, it was declared to be ultra vires to the Constitution and this Court quashed the e-auction scheme. It must be indicated herein that the present respondent also filed the writ petition in question in the Calcutta High Court before the aforesaid decision was rendered and in his case also interim order was passed by the Calcutta High Court. After the disposal of Ashoka Smokeless Coal India (P) Ltd., the writ petition filed by the respondent herein which was pending was also considered and the same was allowed following the decision of this Court in Ashoka Smokeless Coal India (P) Ltd. (supra) as by that decision, this Court has declared the entire scheme to be invalid and ultra vires to the Constitution. Therefore, any action taken pursuant to the said scheme is also illegal and null and void. Following the ratio of the said decision this Court directed the coal companies to refund the price of the coal paid in excess of the notified price under e-auction scheme. Certain guidelines were also laid down as to how such payments is to be made. The said decision of the learned Single Judge was upheld by the Division Bench of the High Court by affirming the conclusions and analysing all the issues that were raised before it. 7. We are unable to accept the contention of the learned Additional Solicitor General that whatever is challenged in the present petition is only an interim order. It is not so because the respondents herein also challenged the legality of the e- auction scheme in the writ petition. The High Court has not disposed of only an interim prayer but has disposed of the entire writ petition by its judgment and order dated 25.03.2010. Consequently, it must also be held that when the entire scheme is set at naught by this Court, whatever action has been taken following the said e-auction by the coal company has also been declared to be illegal and, therefore, the coal company has become liable to refund the entire money which was collected in excess of the notified price. That is the consequence of quashing of the scheme and the same came to be reiterated by this Court while contempt petitions were filed and were disposed of. Therefore, it cannot be said that the effect of the decision of Ashoka Smokeless Coal India (P) Ltd. (supra) would be restricted only to those cases which were before this Court and not for all cases which were pending in different High Courts at that stage, at least to the issues which are common in nature. 8. Learned Additional Solicitor General has also submitted before us that the respondents are not entitled to the benefit, if they are otherwise entitled to on the principles of unjust enrichment. We specifically asked the learned Additional Solicitor General during the course of the arguments to show us whether any such plea was taken in the writ petition which was filed before the learned Single Judge. The learned Additional Solicitor General was unable to show that any such defence or plea was taken about unjust enrichment in the pleadings filed before the learned Single Judge. Such an issue was also not argued before the learned Single Judge as no such reference is there in the order of learned Single Judge. It is, however, stated by the learned Additional Solicitor General that such an issue was raised before the Division Bench. But we could not find the same raised in pleadings nor was it considered. But a mention is made in the judgment that such a plea was argued. However, on going through the records, we find that no such ground has also been taken even in the Memorandum of Appeal filed in the present appeal. Therefore, without taking a plea of unjust enrichment either in the writ petition or before this Court, we are not inclined to allow him to argue the plea at the time of argument and entertain such a plea, particularly, in view of the fact that the respondents did not have any notice of such a plea taken for the first time at argument stage. In the present case, it is a case of refund of price recovered by the appellant in excess and not of any kind of payment of tax or duty. Besides, the appellant has already refunded such excess amount realised to many other parties without raising any such plea. 9. If anything is done by a party in violation of the law, consequence has to follow and they are bound to return the money to the parties from whom excess amount has been realised. There is also no document placed on record in support of any such plea. Bald allegation of this nature cannot be accepted particularly when no such plea has been raised in this Court. 10. In that view of the matter, we find no reason to take a different view than what is taken by the learned Single Judge of the High Court of Calcutta as also by the Division Bench of the same Court. Pursuant to the orders passed by this Court, the accounts in terms of the orders of the learned Single Judge has been verified and the said accounts have been settled. Therefore, appropriate steps shall be taken now to give effect to the judgment and order passed by the learned Single Judge. 11. | 0[ds]There is no dispute with regard to the fact that the legality of the scheme of e-auction was challenged by filing writ petitions in various High Courts by the traders and companies dealing with coal. Some of those petitions were transferred to this Court pursuant to orders of this Court, the leading case being Ashoka Smokeless Coal India (P) Ltd. (supra) which was taken up for consideration along with connected matters and the same were disposed of by this Court and the said decision is now reported in (2007) 2 SCC 640. By the aforesaid judgment, this Court has upheld the challenge of the writ petitioners to the legality of the scheme of e-auction. The aforesaid prayer of the writ petitioners was accepted and this Court held that the scheme of e-auction was invalid and violative of Article 14 of the Constitution of India and, therefore, it was declared to be ultra vires to the Constitution and this Court quashed the e-auction scheme. It must be indicated herein that the present respondent also filed the writ petition in question in the Calcutta High Court before the aforesaid decision was rendered and in his case also interim order was passed by the Calcutta High Court. After the disposal of Ashoka Smokeless Coal India (P) Ltd., the writ petition filed by the respondent herein which was pending was also considered and the same was allowed following the decision of this Court in Ashoka Smokeless Coal India (P) Ltd. (supra) as by that decision, this Court has declared the entire scheme to be invalid and ultra vires to the Constitution. Therefore, any action taken pursuant to the said scheme is also illegal and null and void. Following the ratio of the said decision this Court directed the coal companies to refund the price of the coal paid in excess of the notified price under e-auctionare unable to accept the contention of the learned Additional Solicitor General that whatever is challenged in the present petition is only an interim order. It is not so because the respondents herein also challenged the legality of the e- auction scheme in the writ petition. The High Court has not disposed of only an interim prayer but has disposed of the entire writ petition by its judgment and order dated 25.03.2010. Consequently, it must also be held that when the entire scheme is set at naught by this Court, whatever action has been taken following the said e-auction by the coal company has also been declared to be illegal and, therefore, the coal company has become liable to refund the entire money which was collected in excess of the notified price. That is the consequence of quashing of the scheme and the same came to be reiterated by this Court while contempt petitions were filed and were disposed of. Therefore, it cannot be said that the effect of the decision of Ashoka Smokeless Coal India (P) Ltd. (supra) would be restricted only to those cases which were before this Court and not for all cases which were pending in different High Courts at that stage, at least to the issues which are common inspecifically asked the learned Additional Solicitor General during the course of the arguments to show us whether any such plea was taken in the writ petition which was filed before the learned Single Judge. The learned Additional Solicitor General was unable to show that any such defence or plea was taken about unjust enrichment in the pleadings filed before the learned Single Judge. Such an issue was also not argued before the learned Single Judge as no such reference is there in the order of learned Single Judge. It is, however, stated by the learned Additional Solicitor General that such an issue was raised before the Division Bench. But we could not find the same raised in pleadings nor was it considered. But a mention is made in the judgment that such a plea was argued. However, on going through the records, we find that no such ground has also been taken even in the Memorandum of Appeal filed in the present appeal. Therefore, without taking a plea of unjust enrichment either in the writ petition or before this Court, we are not inclined to allow him to argue the plea at the time of argument and entertain such a plea, particularly, in view of the fact that the respondents did not have any notice of such a plea taken for the first time at argument stage. In the present case, it is a case of refund of price recovered by the appellant in excess and not of any kind of payment of tax or duty. Besides, the appellant has already refunded such excess amount realised to many other parties without raising any suchthat view of the matter, we find no reason to take a different view than what is taken by the learned Single Judge of the High Court of Calcutta as also by the Division Bench of the same Court. Pursuant to the orders passed by this Court, the accounts in terms of the orders of the learned Single Judge has been verified and the said accounts have been settled. Therefore, appropriate steps shall be taken now to give effect to the judgment and order passed by the learned Single Judge. | 0 | 1,962 | 959 | ### 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.
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orders of this Court, the leading case being Ashoka Smokeless Coal India (P) Ltd. (supra) which was taken up for consideration along with connected matters and the same were disposed of by this Court and the said decision is now reported in (2007) 2 SCC 640. By the aforesaid judgment, this Court has upheld the challenge of the writ petitioners to the legality of the scheme of e-auction. The aforesaid prayer of the writ petitioners was accepted and this Court held that the scheme of e-auction was invalid and violative of Article 14 of the Constitution of India and, therefore, it was declared to be ultra vires to the Constitution and this Court quashed the e-auction scheme. It must be indicated herein that the present respondent also filed the writ petition in question in the Calcutta High Court before the aforesaid decision was rendered and in his case also interim order was passed by the Calcutta High Court. After the disposal of Ashoka Smokeless Coal India (P) Ltd., the writ petition filed by the respondent herein which was pending was also considered and the same was allowed following the decision of this Court in Ashoka Smokeless Coal India (P) Ltd. (supra) as by that decision, this Court has declared the entire scheme to be invalid and ultra vires to the Constitution. Therefore, any action taken pursuant to the said scheme is also illegal and null and void. Following the ratio of the said decision this Court directed the coal companies to refund the price of the coal paid in excess of the notified price under e-auction scheme. Certain guidelines were also laid down as to how such payments is to be made. The said decision of the learned Single Judge was upheld by the Division Bench of the High Court by affirming the conclusions and analysing all the issues that were raised before it. 7. We are unable to accept the contention of the learned Additional Solicitor General that whatever is challenged in the present petition is only an interim order. It is not so because the respondents herein also challenged the legality of the e- auction scheme in the writ petition. The High Court has not disposed of only an interim prayer but has disposed of the entire writ petition by its judgment and order dated 25.03.2010. Consequently, it must also be held that when the entire scheme is set at naught by this Court, whatever action has been taken following the said e-auction by the coal company has also been declared to be illegal and, therefore, the coal company has become liable to refund the entire money which was collected in excess of the notified price. That is the consequence of quashing of the scheme and the same came to be reiterated by this Court while contempt petitions were filed and were disposed of. Therefore, it cannot be said that the effect of the decision of Ashoka Smokeless Coal India (P) Ltd. (supra) would be restricted only to those cases which were before this Court and not for all cases which were pending in different High Courts at that stage, at least to the issues which are common in nature. 8. Learned Additional Solicitor General has also submitted before us that the respondents are not entitled to the benefit, if they are otherwise entitled to on the principles of unjust enrichment. We specifically asked the learned Additional Solicitor General during the course of the arguments to show us whether any such plea was taken in the writ petition which was filed before the learned Single Judge. The learned Additional Solicitor General was unable to show that any such defence or plea was taken about unjust enrichment in the pleadings filed before the learned Single Judge. Such an issue was also not argued before the learned Single Judge as no such reference is there in the order of learned Single Judge. It is, however, stated by the learned Additional Solicitor General that such an issue was raised before the Division Bench. But we could not find the same raised in pleadings nor was it considered. But a mention is made in the judgment that such a plea was argued. However, on going through the records, we find that no such ground has also been taken even in the Memorandum of Appeal filed in the present appeal. Therefore, without taking a plea of unjust enrichment either in the writ petition or before this Court, we are not inclined to allow him to argue the plea at the time of argument and entertain such a plea, particularly, in view of the fact that the respondents did not have any notice of such a plea taken for the first time at argument stage. In the present case, it is a case of refund of price recovered by the appellant in excess and not of any kind of payment of tax or duty. Besides, the appellant has already refunded such excess amount realised to many other parties without raising any such plea. 9. If anything is done by a party in violation of the law, consequence has to follow and they are bound to return the money to the parties from whom excess amount has been realised. There is also no document placed on record in support of any such plea. Bald allegation of this nature cannot be accepted particularly when no such plea has been raised in this Court. 10. In that view of the matter, we find no reason to take a different view than what is taken by the learned Single Judge of the High Court of Calcutta as also by the Division Bench of the same Court. Pursuant to the orders passed by this Court, the accounts in terms of the orders of the learned Single Judge has been verified and the said accounts have been settled. Therefore, appropriate steps shall be taken now to give effect to the judgment and order passed by the learned Single Judge. 11.
### Response:
0
### Explanation:
There is no dispute with regard to the fact that the legality of the scheme of e-auction was challenged by filing writ petitions in various High Courts by the traders and companies dealing with coal. Some of those petitions were transferred to this Court pursuant to orders of this Court, the leading case being Ashoka Smokeless Coal India (P) Ltd. (supra) which was taken up for consideration along with connected matters and the same were disposed of by this Court and the said decision is now reported in (2007) 2 SCC 640. By the aforesaid judgment, this Court has upheld the challenge of the writ petitioners to the legality of the scheme of e-auction. The aforesaid prayer of the writ petitioners was accepted and this Court held that the scheme of e-auction was invalid and violative of Article 14 of the Constitution of India and, therefore, it was declared to be ultra vires to the Constitution and this Court quashed the e-auction scheme. It must be indicated herein that the present respondent also filed the writ petition in question in the Calcutta High Court before the aforesaid decision was rendered and in his case also interim order was passed by the Calcutta High Court. After the disposal of Ashoka Smokeless Coal India (P) Ltd., the writ petition filed by the respondent herein which was pending was also considered and the same was allowed following the decision of this Court in Ashoka Smokeless Coal India (P) Ltd. (supra) as by that decision, this Court has declared the entire scheme to be invalid and ultra vires to the Constitution. Therefore, any action taken pursuant to the said scheme is also illegal and null and void. Following the ratio of the said decision this Court directed the coal companies to refund the price of the coal paid in excess of the notified price under e-auctionare unable to accept the contention of the learned Additional Solicitor General that whatever is challenged in the present petition is only an interim order. It is not so because the respondents herein also challenged the legality of the e- auction scheme in the writ petition. The High Court has not disposed of only an interim prayer but has disposed of the entire writ petition by its judgment and order dated 25.03.2010. Consequently, it must also be held that when the entire scheme is set at naught by this Court, whatever action has been taken following the said e-auction by the coal company has also been declared to be illegal and, therefore, the coal company has become liable to refund the entire money which was collected in excess of the notified price. That is the consequence of quashing of the scheme and the same came to be reiterated by this Court while contempt petitions were filed and were disposed of. Therefore, it cannot be said that the effect of the decision of Ashoka Smokeless Coal India (P) Ltd. (supra) would be restricted only to those cases which were before this Court and not for all cases which were pending in different High Courts at that stage, at least to the issues which are common inspecifically asked the learned Additional Solicitor General during the course of the arguments to show us whether any such plea was taken in the writ petition which was filed before the learned Single Judge. The learned Additional Solicitor General was unable to show that any such defence or plea was taken about unjust enrichment in the pleadings filed before the learned Single Judge. Such an issue was also not argued before the learned Single Judge as no such reference is there in the order of learned Single Judge. It is, however, stated by the learned Additional Solicitor General that such an issue was raised before the Division Bench. But we could not find the same raised in pleadings nor was it considered. But a mention is made in the judgment that such a plea was argued. However, on going through the records, we find that no such ground has also been taken even in the Memorandum of Appeal filed in the present appeal. Therefore, without taking a plea of unjust enrichment either in the writ petition or before this Court, we are not inclined to allow him to argue the plea at the time of argument and entertain such a plea, particularly, in view of the fact that the respondents did not have any notice of such a plea taken for the first time at argument stage. In the present case, it is a case of refund of price recovered by the appellant in excess and not of any kind of payment of tax or duty. Besides, the appellant has already refunded such excess amount realised to many other parties without raising any suchthat view of the matter, we find no reason to take a different view than what is taken by the learned Single Judge of the High Court of Calcutta as also by the Division Bench of the same Court. Pursuant to the orders passed by this Court, the accounts in terms of the orders of the learned Single Judge has been verified and the said accounts have been settled. Therefore, appropriate steps shall be taken now to give effect to the judgment and order passed by the learned Single Judge.
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Y.S.Jagan Mohan Reddy Vs. C.B.I | falsely created in Chennai as well as in certain foreign countries.(b) It is also pointed out by the CBI that notice has also been issued to one Maiank Mehta, who is suspected to be the person who handled the routing of money of Y.S. Jagan Mohan Reddy (A-1) and notice has been issued for his presence in India for examination and interrogation. The said person is presently based in Hong Kong and is refusing to come to India citing frivolous reasons. It is suspected that he is being influenced by Y.S. Jagan Mohan Reddy (A-1) and Vijay Sai Reddy (A-2) which amply prove that the witnesses are being influenced by these persons in this case. Grant of Mining Lease to Bharti Cements/Raghuram Cements: It is pointed out by the CBI that investigation is under progress regarding grant of mining lease of limestone to Bharti Cements/Raghuram Cements which are the companies owned by Y.S. Jagan Mohan Reddy (A-1). It is claimed by the CBI that during the period under review, they have collected nearly 400 documents running into thousands of pages from various Departments/Banks including Oriental Bank of Commerce, Jubilee Hills, Hyderabad, Koramangala, Bangalore, Head Office, Gurgaon etc. for disbursement of loan of Rs. 200 crores violating the bank guidelines and rules. It is also stated that the investigation disclosed the payment of illegal gratification of Rs. 30 crores to Y.S. Jagan Mohan Reddy (A-1) by Nimmagadda Prasad (A-3) for the wrongful gain obtained by A-3 from the Government of Andhra Pradesh in connection with awarding a project consisting of development of two Sea Ports and an Industrial Corridor as VANPIC Project and falsification of documents to cover up the said payment etc. M/s Indu Projects Ltd. (M/s Lepakshi Knowledge Hub Pvt. Ltd. and M/s Indus Tech Zone Pvt. Ltd.) The CBI has pointed out that the investigation is in progress in respect of the above said group of companies. In the Status Report, the CBI has highlighted a number of details about the nexus of the appellant along with those companies. Since the investigation is still under progress in respect of those companies, we are not highlighting all those details furnished by the CBI in the Status Report. M/s India Cements Ltd. The CBI has highlighted the investigation relating to M/s India Cements Ltd. and the various amounts exchanged between the parties. In respect of the above, according to the CBI, they had made illegal quid pro quo investments to the tune of Rs.140 crores into the group companies of Y.S. Jagan Mohan Reddy (A-1) and had received several benefits in the form of permissions granted for utilization/additional quantity of water from Kagna and Krishna Rivers and lease of land. It is also pointed out that the investigation in the case is almost complete except few more crucial witnesses have to be examined. The CBI also pointed out the details of investigation relating to investment through paper companies based in Kolkata and Mumbai, popularly known as suit case companies. Since investigation is on a half way, we are not referring all those details mentioned in the Status Report. 12) It is further pointed out that during investigation, a total number of 140 witnesses including IAS officers and concerned Ministers have been examined and 352 documents were collected. According to the CBI, out of these, some more crucial witnesses have to be examined. 13) Learned senior counsel appearing for the appellant pointed out that after the order dated 05.10.2012, the CBI is not justified in prolonging the same just to continue the custody of the appellant. It was also highlighted that even according to the CBI, several Ministers and IAS officers are involved, but no one has been arrested so far. As far as those allegations are concerned, it is the claim of the CBI that considering the huge magnitude of transactions, various beneficiaries, companies/persons involved with A-1 and his associates, the CBI is taking effective steps for early completion of the same. Though learned senior counsel for the appellant submitted that in view of non-compliance of Section 167 of the Code the appellant is entitled to statutory bail, in view of enormous materials placed in respect of distinct entities, various transactions etc. and in the light of the permission granted by this Court in the order dated 05.10.2012, we are unable to accept the argument of learned senior counsel for the appellant. 14) On going into all the details furnished by the CBI in the form of Status Report and the counter affidavit dated 06.05.2013 sworn by the Deputy Inspector General of Police and Chief Investigating Officer, Hyderabad, without expressing any opinion on the merits, we feel that at this stage, the release of the appellant (A-1) would hamper the investigation as it may influence the witnesses and tamper with the material evidence. Though it is pointed out by learned senior counsel for the appellant that since the appellant is in no way connected with the persons in power, we are of the view that the apprehension raised by the CBI cannot be lightly ignored considering the claim that the appellant is the ultimate beneficiary and the prime conspirator in huge monetary transactions.15) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.16) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. | 0[ds]14) On going into all the details furnished by the CBI in the form of Status Report and the counter affidavit dated 06.05.2013 sworn by the Deputy Inspector General of Police and Chief Investigating Officer, Hyderabad, without expressing any opinion on the merits, we feel that at this stage, the release of the appellant (A-1) would hamper the investigation as it may influence the witnesses and tamper with the material evidence. Though it is pointed out by learned senior counsel for the appellant that since the appellant is in no way connected with the persons in power, we are of the view that the apprehension raised by the CBI cannot be lightly ignored considering the claim that the appellant is the ultimate beneficiary and the prime conspirator in huge monetary transactions.15) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.16) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. | 0 | 4,127 | 294 | ### 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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falsely created in Chennai as well as in certain foreign countries.(b) It is also pointed out by the CBI that notice has also been issued to one Maiank Mehta, who is suspected to be the person who handled the routing of money of Y.S. Jagan Mohan Reddy (A-1) and notice has been issued for his presence in India for examination and interrogation. The said person is presently based in Hong Kong and is refusing to come to India citing frivolous reasons. It is suspected that he is being influenced by Y.S. Jagan Mohan Reddy (A-1) and Vijay Sai Reddy (A-2) which amply prove that the witnesses are being influenced by these persons in this case. Grant of Mining Lease to Bharti Cements/Raghuram Cements: It is pointed out by the CBI that investigation is under progress regarding grant of mining lease of limestone to Bharti Cements/Raghuram Cements which are the companies owned by Y.S. Jagan Mohan Reddy (A-1). It is claimed by the CBI that during the period under review, they have collected nearly 400 documents running into thousands of pages from various Departments/Banks including Oriental Bank of Commerce, Jubilee Hills, Hyderabad, Koramangala, Bangalore, Head Office, Gurgaon etc. for disbursement of loan of Rs. 200 crores violating the bank guidelines and rules. It is also stated that the investigation disclosed the payment of illegal gratification of Rs. 30 crores to Y.S. Jagan Mohan Reddy (A-1) by Nimmagadda Prasad (A-3) for the wrongful gain obtained by A-3 from the Government of Andhra Pradesh in connection with awarding a project consisting of development of two Sea Ports and an Industrial Corridor as VANPIC Project and falsification of documents to cover up the said payment etc. M/s Indu Projects Ltd. (M/s Lepakshi Knowledge Hub Pvt. Ltd. and M/s Indus Tech Zone Pvt. Ltd.) The CBI has pointed out that the investigation is in progress in respect of the above said group of companies. In the Status Report, the CBI has highlighted a number of details about the nexus of the appellant along with those companies. Since the investigation is still under progress in respect of those companies, we are not highlighting all those details furnished by the CBI in the Status Report. M/s India Cements Ltd. The CBI has highlighted the investigation relating to M/s India Cements Ltd. and the various amounts exchanged between the parties. In respect of the above, according to the CBI, they had made illegal quid pro quo investments to the tune of Rs.140 crores into the group companies of Y.S. Jagan Mohan Reddy (A-1) and had received several benefits in the form of permissions granted for utilization/additional quantity of water from Kagna and Krishna Rivers and lease of land. It is also pointed out that the investigation in the case is almost complete except few more crucial witnesses have to be examined. The CBI also pointed out the details of investigation relating to investment through paper companies based in Kolkata and Mumbai, popularly known as suit case companies. Since investigation is on a half way, we are not referring all those details mentioned in the Status Report. 12) It is further pointed out that during investigation, a total number of 140 witnesses including IAS officers and concerned Ministers have been examined and 352 documents were collected. According to the CBI, out of these, some more crucial witnesses have to be examined. 13) Learned senior counsel appearing for the appellant pointed out that after the order dated 05.10.2012, the CBI is not justified in prolonging the same just to continue the custody of the appellant. It was also highlighted that even according to the CBI, several Ministers and IAS officers are involved, but no one has been arrested so far. As far as those allegations are concerned, it is the claim of the CBI that considering the huge magnitude of transactions, various beneficiaries, companies/persons involved with A-1 and his associates, the CBI is taking effective steps for early completion of the same. Though learned senior counsel for the appellant submitted that in view of non-compliance of Section 167 of the Code the appellant is entitled to statutory bail, in view of enormous materials placed in respect of distinct entities, various transactions etc. and in the light of the permission granted by this Court in the order dated 05.10.2012, we are unable to accept the argument of learned senior counsel for the appellant. 14) On going into all the details furnished by the CBI in the form of Status Report and the counter affidavit dated 06.05.2013 sworn by the Deputy Inspector General of Police and Chief Investigating Officer, Hyderabad, without expressing any opinion on the merits, we feel that at this stage, the release of the appellant (A-1) would hamper the investigation as it may influence the witnesses and tamper with the material evidence. Though it is pointed out by learned senior counsel for the appellant that since the appellant is in no way connected with the persons in power, we are of the view that the apprehension raised by the CBI cannot be lightly ignored considering the claim that the appellant is the ultimate beneficiary and the prime conspirator in huge monetary transactions.15) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.16) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.
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14) On going into all the details furnished by the CBI in the form of Status Report and the counter affidavit dated 06.05.2013 sworn by the Deputy Inspector General of Police and Chief Investigating Officer, Hyderabad, without expressing any opinion on the merits, we feel that at this stage, the release of the appellant (A-1) would hamper the investigation as it may influence the witnesses and tamper with the material evidence. Though it is pointed out by learned senior counsel for the appellant that since the appellant is in no way connected with the persons in power, we are of the view that the apprehension raised by the CBI cannot be lightly ignored considering the claim that the appellant is the ultimate beneficiary and the prime conspirator in huge monetary transactions.15) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.16) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.
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H.H. Prince Azam Jha Bahadur through L.Rs Vs. Expenditure Tax Officer | the expenditure for the assessment year in question. The assessee was required to file a return in form A of expenditure for the assessment years in question. From the judgment of the learned Single Judge it appears that in a subsequent letter, the Expenditure Tax officer referred to return of expenditure filed in response to the notices issued under Section 16 (a) of the Expenditure Tax Act, 1957. In the writ petition which was filed on behalf of Prince Azam Jha Bahadur in the High Court, it was stated in para 7 that the action of the Expenditure Tax Officer in reopening the assessments under Section 16 (a) was wholly arbitrary and illegal. It was, however, further stated there has been no omission or failure on the part of the petitioner to make a return of his expenditure or to disclose fully and truly all material facts. Nor has the respondent come into possession of any information warranting a reasonable belief that any expenditure has escaped taxation. All the material facts were disclosed. All the necessary information was available. In the counter affidavit of the Expenditure Tax Officer in para 5, it was asserted that he had reason to believe that on account of omission or failure on the part of the assessee to disclose truly and fully all material facts necessary for his assessment expenditure of his dependents chargeable to tax had escaped assessment. In para 8 also, reliance was placed mainly on the provisions of Section 16 (a) of the Act but in para 9, the Expenditure Tax Officer went on to say that the actual expenditure incurred by the assessees wife was disclosed by her returns filed before him and in consequence of the aforesaid information available to him on 5th May 1962, he had reason to believe that the expenditure of the assessee chargeable to tax had escaped assessment. It was pointed out that the notices which had been issued were within 4 years limit applicable to Section 16 (b) of the Act. It was reiterated that as the notices had been issued within four years reassessment proceedings could be sustained either under Sec. 16 (a) or Sec. 16 (b) of the Act. 14. Section 16 of the Act is in the following terms: 16. If the Expenditure Tax Officer- (a) has reason to believe that by reason of the omission or failure on the part of the assessee to make a return of his expenditure under Section 13 for any assessment year or to disclose fully and truly all material necessary for his assessment for that year, the expenditure chargeable to tax has escaped assessment for that year whether by reason of under assessment or assessment at too low a rate or otherwise; or (b) has in consequence of any information in his possession reason to believe notwithstanding that there has been no such omission or failure as is referred to in clause (a), that the expenditure chargeable to tax has escaped assessment for any assessment year, whether by reason of under-assessment or assessment at too low a rate or otherwise; he may in cases falling under clause (a) at any time within eight years and in cases falling under clause (b) at any time within four years of the end of that assessment year, serve on the assessee a notice under sub-section (2) of Section 13, and may proceed to assess or reassess such expenditure and the provisions of this Act shall so far as may be apply as if the notice had issued under that sub-section. 15. On behalf of the assessee, a contention had been raised before the learned Single Judge of the High Court that the notices had been issued by the Expenditure Act Officer under S. 16 (a) of the Act. The notices were illegal inasmuch as the fact that Princess Durree Shehvar was the wife of the assessee and that she had to be considered as his dependant within the meaning of Section 2 (g) (i) of the Act were within the knowledge of the Expenditure Tax Officer and had been duly mentioned to him and as such there was no omission or failure on the part of the assessee to make a return of his expenditure or to disclose fully and truly all material facts. Since all the material facts had been disclosed and all the necessary information was available, the Expenditure Tax Officer had no jurisdiction to reopen the assessment merely because he had changed his opinion. 16. It is no doubt true that the impression created by the notices which were issued and the correspondence which followed between the assessee and the Expenditure Tax Officer was that the notices had been issued under Section 16 (a) of the Act but in the writ petitions and the returns which were filed both sides were quite clear that the matter was not confined only to clause (a) of Section 16 (1) and clause (b) figured prominently. We are unable to see that the notices which had been issued were confined only to the terms of Section 16 (a). It is not disputed on behalf of the assessee that if the matter was covered by Section 16 (b), they would be perfectly valid. The pleadings in the writ petitions covered both clauses of Section 16 and in any case, the Expenditure Tax Officer had made a positive averment that the information with regard to the expenditure incurred by the assessees wife became available to him only on 5th May 1962. Thus the notices which were issued on that date relating to the assessment years 1959-60, 1960-61 and 1061-62 were within the period of four years which was the limit prescribed with regard to action under clause (b) the limit being more in respect of clause (a). In our judgment, this concludes the matter because it was nowhere controverted in the High Court that the requisite information came into possession of the Expenditure Tax Officer only on 5th May, 1962. | 0[ds]6. We are unable to concur in the view of the Madras and Madhya Pradesh High Courts that the word dependent in S.2 (g) (i) should be given a meaning which, owing to the clear and plain language employed therein cannot possibly be given. Section 2 (g) (i) has to be read in two parts. The first part which ends with minor child followed by comma contains the word means. The second part is intended to include the kind of person mentioned therein, namely, one who is wholly or mainly dependent on the assessee for support and maintenance. Before the inclusive part of the definition starts the meaning of the word dependent has been clearly and completely specified. If Section 2 (g) (i) as it stood before the amendment is contrasted with the Section as it was substituted by the amendment the intention of the legislature became obvious. Before the amendment dependent meant where the assessee was an individual his or her spouse or child wholly or mainly dependant on the assessee for support and maintenance. After the amendment Section 2 (g) (i) underwent a complete change. The legislature stopped short of making the spouse or the minor child dependent on the assessee for support and maintenance and employed those words only for the new category of persons who came to be included, namely any one who was neither the spouse nor the minor child of the assessee but was otherwise wholly or mainly dependent on him for support and maintenance. Thus in the concluding part even major children of the assessee came to be included so long as they satisfied the conditions that they were wholly or mainly dependent on him. The argument that the amended definition is only intended to enlarge the categories of dependent by adding another category cannot be sustainedIt is true that the words Hindu undivided family have not been used instead of the word assessee towards the concluding part of Section 4 (ii). But that will not alter the true import of the aforesaid provision read with Section 2 (g). The scheme as noticed before is that the assessee have been divided into two classes which are well known. One is that of an individual and the other of the Hindu undivided family. In the case of an individual assessee the only qualification for the expenditure to be included in his assessment is that it should have been incurred by his dependent as defined in Section 2 (g) (1). In the case of a H.U.F. it could be included only if it is from out of the income or property transferred directly or indirectly to the dependent by the family. Even otherwise looking at the context in which the word assessee is found in the concluding part of Section 4 (ii) that word has clearly been used only with reference to the second part of clause (ii) which relates to the case of an assessee which is a H.U.F8. It does look somewhat anomalous and illogical that where the expenditure has been incurred by the wife and minor children who are altogether independent of the assessee and which has no connection with their being dependent on him or with any property transferred to them should be included in the expenditure of the assessee. The position would be similar where the wife is the assessee and the expenditure incurred by the husband comes to be included in computation of her liability to tax because the word used in spouse in Sec. 2 (g) (i). But it must be remembered that logic or reason cannot be of much avail in interpreting a taxing statute9. We are unable to see that any double taxation would be involved if the meaning of the word dependent as given in the first part of Section 2 (g) (i) is to be applied without qualifying the same with what follows in the second part of that clause that is that person should be wholly or mainly dependent on the assessee for support and maintenance. Although there is no bar to double taxation but the legislature must distinctly enact it. It is only when there are general words of taxation and they have to be interpreted that they cannot be so interpreted as to tax the subject twice over to the same tax. There is nothing in the Act which does away with the principle that in the absence of an express provision, the same item will not be taxed over again. Moreover the charging Section 3 only subjects to tax the expenditure incurred by an individual or a Hindu undivided family. Once the expenditure incurred by both the assessee as an individual and the spouse has been included in his or her assessment of expenditure tax, it cannot be again subjected to tax, in the assessment of the other spouse. The learned Solicitor General agrees to this being the true position10. A good deal of reliance has been placed on the decisions which are in favour of the assessee that there is no reasonable basis for making a distinction between an assessee who is an individual and an assessee, that is a Hindu undivided family which would justify a different treatment. It was and has been suggested that the relevant provisions of the Act should not be so interpreted as to give rise to discrimination between the two cases there being no reasonable basis for such discrimination. We find no force or substance in this argument. Firstly, it is not disputed that the case of an individual and that of a Hindu undivided family fall into two different classes. The challenge is based only on there being a nonexus between the differentia and the object sought to be achieved by the legislation, the suggestion being that favourable treatment has been accorded to the Hindu undivided family. The learned Single Judge who disposed of the writ petitions in the present case considered the matter very fully and we find no infirmity in his reasoning in coming to the conclusion that. In a tax legislation where the incidence of the tax falls differently upon different classes of assessees as in the present case it can be said that there is legislation without any classification or that there is no rational relation to the object. According to the learned Judge, the object of the enactment is to augment the revenue, to encourage thrift and to avoid wasteful expenditure and because some classes are taxed higher than the others or some are given concessions while others are not, it cannot be held that there has been discrimination within the meaning of Art. 1411. It was contended before the High Court and that contention has been reiterated in a half-hearted manner before us that the Act was void ab initio for want of legislative competence. It has been pointed out that there is no Entry in List I of the Seventh Schedule or in List III relating to tax on expenditure. Reference has been made to Entry 62 in List II which reads Taxes on luxuries including taxes on entertainments, amusement betting and gambling. We are wholly unable to comprehend how expenditure tax can fall within the aforesaid Entry. We are in entire agreement with the majority decision of the Andhra Pradesh High Court that Entry 97 in List I which is the residuary Entry covers the tax of the kind imposed by the ActIn the absence of any ambiguity in the language employed in the first part of Section 2 (g) (i), we have to go by the plain meaning and that is confined to the spouse or minor child of the assessee when he is an individual irrespective of such spouse or minor child being dependent on or independent of the assessee for support and maintenance. As a matter of fact, the whole construction of that clause leaves no room for doubt that in the first part no question of dependence in fact arises and the spouse or the minor child simpliciter has to be treated as a dependent. The conjunctive word and appearing between the two parts makes the intention of the legislature still clearer. The second part or any words in that part do not qualify the first part. We may conclude the discussion on this point by referring to a decision of the Bombay High Courtin M. N. Patwardhan v. Commr. of Expenditure Tax, Poona (1970) 78 ITR 338 (Bom) in which the decision of the Andhra Pradesh High Court under appeal has been followed after a full consideration of the various points which arose for determination. Rajkumar Singhjis case which is the subject matter of appeal in C. As. 2389-2391/68 was dissented from by the Bombay High Court.In our judgment the majority of the full bench of the Andhra Pradesh High Court was right in holding that the expenditure incurred by the wife of the assessee was ineludible in his assessment for computing the expenditure tax under the Act13. The other point which was canvassed before the High Court of Andhra Pradesh and has been urged before us relates to the validity of the notice which was issued by the Expenditure Tax Officer for reopening the assessments in question. In the notices. It was stated that whereas the Expenditure tax Officer had reason to believe that expenditure chargeable to expenditure tax had (a) escaped assessment (b) been under assessed, (c) been assessed at too low a rate it was proposed to reassess the expenditure for the assessment year in question. The assessee was required to file a return in form A of expenditure for the assessment years in question. From the judgment of the learned Single Judge it appears that in a subsequent letter, the Expenditure Tax officer referred to return of expenditure filed in response to the notices issued under Section 16 (a) of the Expenditure Tax Act, 1957. In the writ petition which was filed on behalf of Prince Azam Jha Bahadur in the High Court, it was stated in para 7 that the action of the Expenditure Tax Officer in reopening the assessments under Section 16 (a) was wholly arbitrary and illegal. It was, however, further stated there has been no omission or failure on the part of the petitioner to make a return of his expenditure or to disclose fully and truly all material facts. Nor has the respondent come into possession of any information warranting a reasonable belief that any expenditure has escaped taxation. All the material facts were disclosed. All the necessary information was available. In the counter affidavit of the Expenditure Tax Officer in para 5, it was asserted that he had reason to believe that on account of omission or failure on the part of the assessee to disclose truly and fully all material facts necessary for his assessment expenditure of his dependents chargeable to tax had escaped assessment. In para 8 also, reliance was placed mainly on the provisions of Section 16 (a) of the Act but in para 9, the Expenditure Tax Officer went on to say that the actual expenditure incurred by the assessees wife was disclosed by her returns filed before him and in consequence of the aforesaid information available to him on 5th May 1962, he had reason to believe that the expenditure of the assessee chargeable to tax had escaped assessment. It was pointed out that the notices which had been issued were within 4 years limit applicable to Section 16 (b) of the Act. It was reiterated that as the notices had been issued within four years reassessment proceedings could be sustained either under Sec. 16 (a) or Sec. 16 (b) of the Act15. On behalf of the assessee, a contention had been raised before the learned Single Judge of the High Court that the notices had been issued by the Expenditure Act Officer under S. 16 (a) of the Act. The notices were illegal inasmuch as the fact that Princess Durree Shehvar was the wife of the assessee and that she had to be considered as his dependant within the meaning of Section 2 (g) (i) of the Act were within the knowledge of the Expenditure Tax Officer and had been duly mentioned to him and as such there was no omission or failure on the part of the assessee to make a return of his expenditure or to disclose fully and truly all material facts. Since all the material facts had been disclosed and all the necessary information was available, the Expenditure Tax Officer had no jurisdiction to reopen the assessment merely because he had changed his opinion16. It is no doubt true that the impression created by the notices which were issued and the correspondence which followed between the assessee and the Expenditure Tax Officer was that the notices had been issued under Section 16 (a) of the Act but in the writ petitions and the returns which were filed both sides were quite clear that the matter was not confined only to clause (a) of Section 16 (1) and clause (b) figured prominently. We are unable to see that the notices which had been issued were confined only to the terms of Section 16 (a). It is not disputed on behalf of the assessee that if the matter was covered by Section 16 (b), they would be perfectly valid. The pleadings in the writ petitions covered both clauses of Section 16 and in any case, the Expenditure Tax Officer had made a positive averment that the information with regard to the expenditure incurred by the assessees wife became available to him only on 5th May 1962. Thus the notices which were issued on that date relating to the assessment years 1959-60, 1960-61 and 1061-62 were within the period of four years which was the limit prescribed with regard to action under clause (b) the limit being more in respect of clause (a). In our judgment, this concludes the matter because it was nowhere controverted in the High Court that the requisite information came into possession of the Expenditure Tax Officer only on 5th May, 1962. | 0 | 5,448 | 2,558 | ### 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 expenditure for the assessment year in question. The assessee was required to file a return in form A of expenditure for the assessment years in question. From the judgment of the learned Single Judge it appears that in a subsequent letter, the Expenditure Tax officer referred to return of expenditure filed in response to the notices issued under Section 16 (a) of the Expenditure Tax Act, 1957. In the writ petition which was filed on behalf of Prince Azam Jha Bahadur in the High Court, it was stated in para 7 that the action of the Expenditure Tax Officer in reopening the assessments under Section 16 (a) was wholly arbitrary and illegal. It was, however, further stated there has been no omission or failure on the part of the petitioner to make a return of his expenditure or to disclose fully and truly all material facts. Nor has the respondent come into possession of any information warranting a reasonable belief that any expenditure has escaped taxation. All the material facts were disclosed. All the necessary information was available. In the counter affidavit of the Expenditure Tax Officer in para 5, it was asserted that he had reason to believe that on account of omission or failure on the part of the assessee to disclose truly and fully all material facts necessary for his assessment expenditure of his dependents chargeable to tax had escaped assessment. In para 8 also, reliance was placed mainly on the provisions of Section 16 (a) of the Act but in para 9, the Expenditure Tax Officer went on to say that the actual expenditure incurred by the assessees wife was disclosed by her returns filed before him and in consequence of the aforesaid information available to him on 5th May 1962, he had reason to believe that the expenditure of the assessee chargeable to tax had escaped assessment. It was pointed out that the notices which had been issued were within 4 years limit applicable to Section 16 (b) of the Act. It was reiterated that as the notices had been issued within four years reassessment proceedings could be sustained either under Sec. 16 (a) or Sec. 16 (b) of the Act. 14. Section 16 of the Act is in the following terms: 16. If the Expenditure Tax Officer- (a) has reason to believe that by reason of the omission or failure on the part of the assessee to make a return of his expenditure under Section 13 for any assessment year or to disclose fully and truly all material necessary for his assessment for that year, the expenditure chargeable to tax has escaped assessment for that year whether by reason of under assessment or assessment at too low a rate or otherwise; or (b) has in consequence of any information in his possession reason to believe notwithstanding that there has been no such omission or failure as is referred to in clause (a), that the expenditure chargeable to tax has escaped assessment for any assessment year, whether by reason of under-assessment or assessment at too low a rate or otherwise; he may in cases falling under clause (a) at any time within eight years and in cases falling under clause (b) at any time within four years of the end of that assessment year, serve on the assessee a notice under sub-section (2) of Section 13, and may proceed to assess or reassess such expenditure and the provisions of this Act shall so far as may be apply as if the notice had issued under that sub-section. 15. On behalf of the assessee, a contention had been raised before the learned Single Judge of the High Court that the notices had been issued by the Expenditure Act Officer under S. 16 (a) of the Act. The notices were illegal inasmuch as the fact that Princess Durree Shehvar was the wife of the assessee and that she had to be considered as his dependant within the meaning of Section 2 (g) (i) of the Act were within the knowledge of the Expenditure Tax Officer and had been duly mentioned to him and as such there was no omission or failure on the part of the assessee to make a return of his expenditure or to disclose fully and truly all material facts. Since all the material facts had been disclosed and all the necessary information was available, the Expenditure Tax Officer had no jurisdiction to reopen the assessment merely because he had changed his opinion. 16. It is no doubt true that the impression created by the notices which were issued and the correspondence which followed between the assessee and the Expenditure Tax Officer was that the notices had been issued under Section 16 (a) of the Act but in the writ petitions and the returns which were filed both sides were quite clear that the matter was not confined only to clause (a) of Section 16 (1) and clause (b) figured prominently. We are unable to see that the notices which had been issued were confined only to the terms of Section 16 (a). It is not disputed on behalf of the assessee that if the matter was covered by Section 16 (b), they would be perfectly valid. The pleadings in the writ petitions covered both clauses of Section 16 and in any case, the Expenditure Tax Officer had made a positive averment that the information with regard to the expenditure incurred by the assessees wife became available to him only on 5th May 1962. Thus the notices which were issued on that date relating to the assessment years 1959-60, 1960-61 and 1061-62 were within the period of four years which was the limit prescribed with regard to action under clause (b) the limit being more in respect of clause (a). In our judgment, this concludes the matter because it was nowhere controverted in the High Court that the requisite information came into possession of the Expenditure Tax Officer only on 5th May, 1962.
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makes the intention of the legislature still clearer. The second part or any words in that part do not qualify the first part. We may conclude the discussion on this point by referring to a decision of the Bombay High Courtin M. N. Patwardhan v. Commr. of Expenditure Tax, Poona (1970) 78 ITR 338 (Bom) in which the decision of the Andhra Pradesh High Court under appeal has been followed after a full consideration of the various points which arose for determination. Rajkumar Singhjis case which is the subject matter of appeal in C. As. 2389-2391/68 was dissented from by the Bombay High Court.In our judgment the majority of the full bench of the Andhra Pradesh High Court was right in holding that the expenditure incurred by the wife of the assessee was ineludible in his assessment for computing the expenditure tax under the Act13. The other point which was canvassed before the High Court of Andhra Pradesh and has been urged before us relates to the validity of the notice which was issued by the Expenditure Tax Officer for reopening the assessments in question. In the notices. It was stated that whereas the Expenditure tax Officer had reason to believe that expenditure chargeable to expenditure tax had (a) escaped assessment (b) been under assessed, (c) been assessed at too low a rate it was proposed to reassess the expenditure for the assessment year in question. The assessee was required to file a return in form A of expenditure for the assessment years in question. From the judgment of the learned Single Judge it appears that in a subsequent letter, the Expenditure Tax officer referred to return of expenditure filed in response to the notices issued under Section 16 (a) of the Expenditure Tax Act, 1957. In the writ petition which was filed on behalf of Prince Azam Jha Bahadur in the High Court, it was stated in para 7 that the action of the Expenditure Tax Officer in reopening the assessments under Section 16 (a) was wholly arbitrary and illegal. It was, however, further stated there has been no omission or failure on the part of the petitioner to make a return of his expenditure or to disclose fully and truly all material facts. Nor has the respondent come into possession of any information warranting a reasonable belief that any expenditure has escaped taxation. All the material facts were disclosed. All the necessary information was available. In the counter affidavit of the Expenditure Tax Officer in para 5, it was asserted that he had reason to believe that on account of omission or failure on the part of the assessee to disclose truly and fully all material facts necessary for his assessment expenditure of his dependents chargeable to tax had escaped assessment. In para 8 also, reliance was placed mainly on the provisions of Section 16 (a) of the Act but in para 9, the Expenditure Tax Officer went on to say that the actual expenditure incurred by the assessees wife was disclosed by her returns filed before him and in consequence of the aforesaid information available to him on 5th May 1962, he had reason to believe that the expenditure of the assessee chargeable to tax had escaped assessment. It was pointed out that the notices which had been issued were within 4 years limit applicable to Section 16 (b) of the Act. It was reiterated that as the notices had been issued within four years reassessment proceedings could be sustained either under Sec. 16 (a) or Sec. 16 (b) of the Act15. On behalf of the assessee, a contention had been raised before the learned Single Judge of the High Court that the notices had been issued by the Expenditure Act Officer under S. 16 (a) of the Act. The notices were illegal inasmuch as the fact that Princess Durree Shehvar was the wife of the assessee and that she had to be considered as his dependant within the meaning of Section 2 (g) (i) of the Act were within the knowledge of the Expenditure Tax Officer and had been duly mentioned to him and as such there was no omission or failure on the part of the assessee to make a return of his expenditure or to disclose fully and truly all material facts. Since all the material facts had been disclosed and all the necessary information was available, the Expenditure Tax Officer had no jurisdiction to reopen the assessment merely because he had changed his opinion16. It is no doubt true that the impression created by the notices which were issued and the correspondence which followed between the assessee and the Expenditure Tax Officer was that the notices had been issued under Section 16 (a) of the Act but in the writ petitions and the returns which were filed both sides were quite clear that the matter was not confined only to clause (a) of Section 16 (1) and clause (b) figured prominently. We are unable to see that the notices which had been issued were confined only to the terms of Section 16 (a). It is not disputed on behalf of the assessee that if the matter was covered by Section 16 (b), they would be perfectly valid. The pleadings in the writ petitions covered both clauses of Section 16 and in any case, the Expenditure Tax Officer had made a positive averment that the information with regard to the expenditure incurred by the assessees wife became available to him only on 5th May 1962. Thus the notices which were issued on that date relating to the assessment years 1959-60, 1960-61 and 1061-62 were within the period of four years which was the limit prescribed with regard to action under clause (b) the limit being more in respect of clause (a). In our judgment, this concludes the matter because it was nowhere controverted in the High Court that the requisite information came into possession of the Expenditure Tax Officer only on 5th May, 1962.
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Neelkanth Devansh Developers Private Limited Vs. Urban Infrastructure Venture Capital Limited | loan simpliciter which was given by the Respondents/original Petitioners to the Appellants and there was no other written material/agreement/contract to show that it was supposed to be part of the arrangement which was specifically averred by the Appellants in their affidavit-in-reply. It is well settled that if there is a written contract, reliance will have to be placed on the written contract and no oral evidence could be led which is in variance of the written contract.30. At no point of time, the contention of the Appellants that this was a part of the larger transaction was accepted by the Respondents/original Petitioners and was promptly denied after reply to the show cause notice was given by the Appellants, alleging the said fact. The fact, that supplemental agreement which contained all these clauses of there being a web of transactions which was delivered by the Appellants to the Respondents was, in fact, not signed, which fact indicates that from the beginning understanding between the parties was that the ICDs were to be treated as separate and distinct transaction. Moreover, if the contention of the Appellants was to be accepted then there was no need to enter into new ICDs. The flow chart and the correspondence between the parties does not establish the case of the Appellants.31. We therefore confirm the finding of the learned Single Judge and are of the view that defence of the Appellants is neither bonafide nor substantial defence. We are of the view that finding given by the learned Single Judge on this issue is neither perverse nor unreasonable and, therefore, we do not propose to interfere with the said finding while exercising our appellate jurisdiction under Clause 15 of the Letters Patent Act. In our view, there was no suppression of fact by the Respondents/original Petitioners since the ICDs were separate and independent agreements. There was no occasion the Respondents/original Petitioners to mention the facts which, according to the Appellants, were allegedly suppressed. The question No.(ii) is therefore answered in the negative.32. The third question which falls for consideration before this Court is as under:-(iii) Whether the impugned order directing the Company to pay a sum of Rs 23,04,59,942/- amounts to a decree when the Company Court was not justified in passing the said Order33. The said submission of the Appellants is without any substance. The learned Single Judge in his order has clearly observed that he is not deciding the case on merits but having held that the defence of the Company is sham and bogus has given an opportunity to the Company to pay the amount, failing which the Company Petition would stand admitted. The learned Single Judge therefore has not passed any decree in favour of the Respondents/original Petitioners. It is now well settled that such an order could be passed by the Company Court directing the Company to make payment of money to the petitioning creditor. This Court in Enarai Finance Ltd. (2002(1) ALL MR 443)and also in Videocon Industries Ltd. vs. Itesa Sanpaolo S.P.A in Appeal (L) No.29 of 2014 in Company Petition No.528 of 2012 has also upheld the similar order passed by the Company Judge. The question No.(iii) is therefore answered in the negative.34. The last question which falls for consideration before this Court is as under:-(iv) Whether any interference is called for with the order passed by the learned Single Judge in an appeal filed under Clause 15 of the Letters Patent Act35. The Apex Court in Wander Ltd and Another vs. Antox India P. Ltd. (1990(Supp) SCC 727) has observed in para 14 as under:-14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd vs. Pothan Joseph (1960) 3 SCR 713 : AIR 1960 SC 1156 : (SCR 721)....... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130) .the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.The appellate judgment does not seem to defer to this principle.36. This Court therefore while exercising its appellate jurisdiction under Clause 15 of the Letters Patent Act is not expected to interfere with the order passed by the learned Single Judge, unless it comes to the conclusion that the finding is perverse or is based on material which is not part of the record. As mentioned hereinabove we are of the view that finding of the learned Single Judge is neither perverse nor is based on the material which is not there on record. The question No.(iv) is therefore answered in the negative. | 0[ds]15. In our view, the contention of the Appellants that in view of the order of the Apex Court dated 25/08/2015 and the procedural order passed by the learned Single Arbitrator, ICD is a subject matter of arbitration is without any substance for the following reasons.In view of the said chronology of events in respect of arbitration application file under Section 11, it can be seen that the Respondents herein were not impleaded as party to the arbitration application and had not accepted that there was arbitration agreement between the Appellants herein and the Respondents and further had not accepted that the claim of the original Petitioners that the winding up Petition was required to be adjudicated upon by the Arbitrator. No decision was given by the Apex Court in the said application since it was withdrawn and, therefore, it cannot be said that the Apex Court had given any ruling on the basis of the judgment in Chloro Controls (India) Pvt. Ltd. vs. Severn Trent Water Purification Incorporated and Others (2013) 1 SCC 641 ). The contention of Mr. Dwarkadas, the learned Senior Counsel appearing on behalf of the Appellants therefore cannot be accepted. The question No.(i) is therefore answered in the negative.Taking into consideration the documents on which reliance was placed by both sides, we are of the view that the learned Single Judge has correctly held that ICDs do not form part of the larger transaction of investment or that ICD are payable only out of profits earned by the joint venture business. ICDs, in our view, are independent transactions, not governed by the supplemental agreement.In our view, the learned Single Judge has rightly not accepted the contention of the Appellants that ICDs form an integral part of web of transactions between the two groups. The Inter Corporate Deposits by the Respondents/original Petitioners are independent transactions unrelated to five Subscription/Share Holders Agreements and one Shareholder Agreement which were executed on 24/08/2007 and 18/10/2008 though in these Shareholders Agreements there is a reference to parties, which, in turn, includes the definition of the term Affiliate. It is obvious that the term Affiliate is a defined term in relevant Shareholders Agreement and it cannot be read in isolation and, secondly, it has to be noted that Shareholders Agreement is not signed by the original Petitioners. In our view, therefore, there is no material on record to indicate that the ICDs were part of the larger web of transactions between the parties. Thirdly, the supplemental agreement is admittedly not executed. The agreement itself shows that it is only a draft for approval. There is no material on record to show that Respondents/original Petitioners were accepted as part of the Urban Group or as part of dispute resolution process. No reliance therefore can ever be placed on the supplemental agreement since it was not executed and signed by the Respondents/original Petitioners. The mediation proceedings before the Mediator do not make any reference to theboth these cases, the learned Single Judges of this Court came to the conclusion that the contention of the Company that they were part of the complex web of interconnected transactions could not be accepted and defence could not be set up that would have an effect of allowing them to lead evidence in variance of the terms of the written contract.29. In the present case also, ICDs were distinct written agreements which indicated that it was a loan simpliciter which was given by the Respondents/original Petitioners to the Appellants and there was no other written material/agreement/contract to show that it was supposed to be part of the arrangement which was specifically averred by the Appellants in theirIt is well settled that if there is a written contract, reliance will have to be placed on the written contract and no oral evidence could be led which is in variance of the written contract.30. At no point of time, the contention of the Appellants that this was a part of the larger transaction was accepted by the Respondents/original Petitioners and was promptly denied after reply to the show cause notice was given by the Appellants, alleging the said fact. The fact, that supplemental agreement which contained all these clauses of there being a web of transactions which was delivered by the Appellants to the Respondents was, in fact, not signed, which fact indicates that from the beginning understanding between the parties was that the ICDs were to be treated as separate and distinct transaction. Moreover, if the contention of the Appellants was to be accepted then there was no need to enter into new ICDs. The flow chart and the correspondence between the parties does not establish the case of the Appellants.31. We therefore confirm the finding of the learned Single Judge and are of the view that defence of the Appellants is neither bonafide nor substantial defence. We are of the view that finding given by the learned Single Judge on this issue is neither perverse nor unreasonable and, therefore, we do not propose to interfere with the said finding while exercising our appellate jurisdiction under Clause 15 of the Letters Patent Act. In our view, there was no suppression of fact by the Respondents/original Petitioners since the ICDs were separate and independent agreements. There was no occasion the Respondents/original Petitioners to mention the facts which, according to the Appellants, were allegedly suppressed. The question No.(ii) is therefore answered in the negative.The said submission of the Appellants is without any substance. The learned Single Judge in his order has clearly observed that he is not deciding the case on merits but having held that the defence of the Company is sham and bogus has given an opportunity to the Company to pay the amount, failing which the Company Petition would stand admitted. The learned Single Judge therefore has not passed any decree in favour of the Respondents/original Petitioners. It is now well settled that such an order could be passed by the Company Court directing the Company to make payment of money to the petitioning creditor. This Court in Enarai Finance Ltd. (2002(1) ALL MR 443)and also in Videocon Industries Ltd. vs. Itesa Sanpaolo S.P.A in Appeal (L) No.29 of 2014 in Company Petition No.528 of 2012 has also upheld the similar order passed by the Company Judge. The question No.(iii) is therefore answered in the negative.This Court therefore while exercising its appellate jurisdiction under Clause 15 of the Letters Patent Act is not expected to interfere with the order passed by the learned Single Judge, unless it comes to the conclusion that the finding is perverse or is based on material which is not part of the record. As mentioned hereinabove we are of the view that finding of the learned Single Judge is neither perverse nor is based on the material which is not there on record. The question No.(iv) is therefore answered in the negative. | 0 | 5,979 | 1,253 | ### Instruction:
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loan simpliciter which was given by the Respondents/original Petitioners to the Appellants and there was no other written material/agreement/contract to show that it was supposed to be part of the arrangement which was specifically averred by the Appellants in their affidavit-in-reply. It is well settled that if there is a written contract, reliance will have to be placed on the written contract and no oral evidence could be led which is in variance of the written contract.30. At no point of time, the contention of the Appellants that this was a part of the larger transaction was accepted by the Respondents/original Petitioners and was promptly denied after reply to the show cause notice was given by the Appellants, alleging the said fact. The fact, that supplemental agreement which contained all these clauses of there being a web of transactions which was delivered by the Appellants to the Respondents was, in fact, not signed, which fact indicates that from the beginning understanding between the parties was that the ICDs were to be treated as separate and distinct transaction. Moreover, if the contention of the Appellants was to be accepted then there was no need to enter into new ICDs. The flow chart and the correspondence between the parties does not establish the case of the Appellants.31. We therefore confirm the finding of the learned Single Judge and are of the view that defence of the Appellants is neither bonafide nor substantial defence. We are of the view that finding given by the learned Single Judge on this issue is neither perverse nor unreasonable and, therefore, we do not propose to interfere with the said finding while exercising our appellate jurisdiction under Clause 15 of the Letters Patent Act. In our view, there was no suppression of fact by the Respondents/original Petitioners since the ICDs were separate and independent agreements. There was no occasion the Respondents/original Petitioners to mention the facts which, according to the Appellants, were allegedly suppressed. The question No.(ii) is therefore answered in the negative.32. The third question which falls for consideration before this Court is as under:-(iii) Whether the impugned order directing the Company to pay a sum of Rs 23,04,59,942/- amounts to a decree when the Company Court was not justified in passing the said Order33. The said submission of the Appellants is without any substance. The learned Single Judge in his order has clearly observed that he is not deciding the case on merits but having held that the defence of the Company is sham and bogus has given an opportunity to the Company to pay the amount, failing which the Company Petition would stand admitted. The learned Single Judge therefore has not passed any decree in favour of the Respondents/original Petitioners. It is now well settled that such an order could be passed by the Company Court directing the Company to make payment of money to the petitioning creditor. This Court in Enarai Finance Ltd. (2002(1) ALL MR 443)and also in Videocon Industries Ltd. vs. Itesa Sanpaolo S.P.A in Appeal (L) No.29 of 2014 in Company Petition No.528 of 2012 has also upheld the similar order passed by the Company Judge. The question No.(iii) is therefore answered in the negative.34. The last question which falls for consideration before this Court is as under:-(iv) Whether any interference is called for with the order passed by the learned Single Judge in an appeal filed under Clause 15 of the Letters Patent Act35. The Apex Court in Wander Ltd and Another vs. Antox India P. Ltd. (1990(Supp) SCC 727) has observed in para 14 as under:-14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd vs. Pothan Joseph (1960) 3 SCR 713 : AIR 1960 SC 1156 : (SCR 721)....... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130) .the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.The appellate judgment does not seem to defer to this principle.36. This Court therefore while exercising its appellate jurisdiction under Clause 15 of the Letters Patent Act is not expected to interfere with the order passed by the learned Single Judge, unless it comes to the conclusion that the finding is perverse or is based on material which is not part of the record. As mentioned hereinabove we are of the view that finding of the learned Single Judge is neither perverse nor is based on the material which is not there on record. The question No.(iv) is therefore answered in the negative.
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on the basis of the judgment in Chloro Controls (India) Pvt. Ltd. vs. Severn Trent Water Purification Incorporated and Others (2013) 1 SCC 641 ). The contention of Mr. Dwarkadas, the learned Senior Counsel appearing on behalf of the Appellants therefore cannot be accepted. The question No.(i) is therefore answered in the negative.Taking into consideration the documents on which reliance was placed by both sides, we are of the view that the learned Single Judge has correctly held that ICDs do not form part of the larger transaction of investment or that ICD are payable only out of profits earned by the joint venture business. ICDs, in our view, are independent transactions, not governed by the supplemental agreement.In our view, the learned Single Judge has rightly not accepted the contention of the Appellants that ICDs form an integral part of web of transactions between the two groups. The Inter Corporate Deposits by the Respondents/original Petitioners are independent transactions unrelated to five Subscription/Share Holders Agreements and one Shareholder Agreement which were executed on 24/08/2007 and 18/10/2008 though in these Shareholders Agreements there is a reference to parties, which, in turn, includes the definition of the term Affiliate. It is obvious that the term Affiliate is a defined term in relevant Shareholders Agreement and it cannot be read in isolation and, secondly, it has to be noted that Shareholders Agreement is not signed by the original Petitioners. In our view, therefore, there is no material on record to indicate that the ICDs were part of the larger web of transactions between the parties. Thirdly, the supplemental agreement is admittedly not executed. The agreement itself shows that it is only a draft for approval. There is no material on record to show that Respondents/original Petitioners were accepted as part of the Urban Group or as part of dispute resolution process. No reliance therefore can ever be placed on the supplemental agreement since it was not executed and signed by the Respondents/original Petitioners. The mediation proceedings before the Mediator do not make any reference to theboth these cases, the learned Single Judges of this Court came to the conclusion that the contention of the Company that they were part of the complex web of interconnected transactions could not be accepted and defence could not be set up that would have an effect of allowing them to lead evidence in variance of the terms of the written contract.29. In the present case also, ICDs were distinct written agreements which indicated that it was a loan simpliciter which was given by the Respondents/original Petitioners to the Appellants and there was no other written material/agreement/contract to show that it was supposed to be part of the arrangement which was specifically averred by the Appellants in theirIt is well settled that if there is a written contract, reliance will have to be placed on the written contract and no oral evidence could be led which is in variance of the written contract.30. At no point of time, the contention of the Appellants that this was a part of the larger transaction was accepted by the Respondents/original Petitioners and was promptly denied after reply to the show cause notice was given by the Appellants, alleging the said fact. The fact, that supplemental agreement which contained all these clauses of there being a web of transactions which was delivered by the Appellants to the Respondents was, in fact, not signed, which fact indicates that from the beginning understanding between the parties was that the ICDs were to be treated as separate and distinct transaction. Moreover, if the contention of the Appellants was to be accepted then there was no need to enter into new ICDs. The flow chart and the correspondence between the parties does not establish the case of the Appellants.31. We therefore confirm the finding of the learned Single Judge and are of the view that defence of the Appellants is neither bonafide nor substantial defence. We are of the view that finding given by the learned Single Judge on this issue is neither perverse nor unreasonable and, therefore, we do not propose to interfere with the said finding while exercising our appellate jurisdiction under Clause 15 of the Letters Patent Act. In our view, there was no suppression of fact by the Respondents/original Petitioners since the ICDs were separate and independent agreements. There was no occasion the Respondents/original Petitioners to mention the facts which, according to the Appellants, were allegedly suppressed. The question No.(ii) is therefore answered in the negative.The said submission of the Appellants is without any substance. The learned Single Judge in his order has clearly observed that he is not deciding the case on merits but having held that the defence of the Company is sham and bogus has given an opportunity to the Company to pay the amount, failing which the Company Petition would stand admitted. The learned Single Judge therefore has not passed any decree in favour of the Respondents/original Petitioners. It is now well settled that such an order could be passed by the Company Court directing the Company to make payment of money to the petitioning creditor. This Court in Enarai Finance Ltd. (2002(1) ALL MR 443)and also in Videocon Industries Ltd. vs. Itesa Sanpaolo S.P.A in Appeal (L) No.29 of 2014 in Company Petition No.528 of 2012 has also upheld the similar order passed by the Company Judge. The question No.(iii) is therefore answered in the negative.This Court therefore while exercising its appellate jurisdiction under Clause 15 of the Letters Patent Act is not expected to interfere with the order passed by the learned Single Judge, unless it comes to the conclusion that the finding is perverse or is based on material which is not part of the record. As mentioned hereinabove we are of the view that finding of the learned Single Judge is neither perverse nor is based on the material which is not there on record. The question No.(iv) is therefore answered in the negative.
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Chairman, Canara Bank, Bangalore Vs. Shri M.S.Jasra | may not contain provision for the continuance of the services of all the employees of the banking company in the transferee bank as is specified in clause (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 clause (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 clause (i). This is clear from the use of the word `may in the opening words of sub-section (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 moralorium, then the scheme must contain a provision that the transferree 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. 13. Clause (i) read with the proviso in sub-section (5) results in enabling the making of a provision in the scheme of amalgamation for the continuance of services of the employees of the banking company in the transferee bank on the same terms and conditions by which they were governed before the date of the order of moratorium but when such a provision is made, the scheme has also to provide that the transferee bank shall grant not later than the period of three years the same terms and conditions of service to the employees who are continued, the terms and conditions of service in the transferee bank in the corresponding rank or status, subject to the requisite qualifications and experience. The right of the employees of the banking company in the transferee bank on continuance of the service by virtue of such a provision in the scheme as provided in clause (i) of sub-section (5) is merely that which is contained in the proviso thereunder, that is, that the transferee bank would treat them at par with its own employees of corresponding rank or status subject to the qualifications and experience irrespective of the earlier terms and conditions of service. In other words, if the scheme provides for continuance of the services of the employees in the transferee bank, then beyond a period of three years from the date on which the scheme is sanctioned by the Central Government, the transferee bank cannot discriminate between such employees and its other employees of corresponding rank or status. The only right of such an employee whose service is so continued is, therefore, to claim parity with the employees of the transferee bank itself of corresponding rank or status subject to equivalent qualifications and experience and no more. The right of such an employee is provided in the proviso to clause (i) and not in the earlier enacting part of clause (i) of sub-section (5) as claimed by respondent No. 1 and upheld by the High Court. 14. Clauses 10 and 12 of the scheme as quoted above merely incorporate the matter specified in clause (i) and the proviso thereunder with which we are concerned and so read and understood, there is no ambiguity or conflict in those clauses of the scheme either inter se or with clause (i) and the proviso thereunder in sub-section (5) of Section 45. 15. Shri S.C. Gupta, learned counsel for respondent No. 1 placing strong reliance on State Bank of Travancore v. Elias Elias & Ors., (1971)2 SCR 28 , attempted to support the view taken by the High Court. In our opinion, that decision which led to the addition of the explanation in Section 45 by Act No. 1 of 1984 to the effect that in this Section the `terms and conditions of service shall not be construed as extending to the rank and status of such employees, is of no assistance in the present case. With respect, if that decision is read to construe clause (i) with its proviso in sub-section (5) of Section 45 as suggested on behalf of respondent No. 1, then we are unable to subscribe to that view since the proper construction of these provisions, according to us, is as indicated above. 16. It follows, that respondent No. 1 could not, therefore, claim to be governed by the age of superannuation of 60 years in the Lakshmi Commercial Bank. When his services were continued on amalgamation of the Lakshmi Commercial Bank with the Canara Bank he became an employee of the Canara Bank and was, therefore, entitled only to the right given by proviso (ii) to clause (i) of sub-section (5) of section 45 which entitled him to the same terms and conditions of service as employees of the corresponding rank of status of the Canara Bank. Age of superannuation of the employees in Canara Bank being 58 years only, respondent No. 1 could not claim to retire at 60 years. The High Court misconstrued clause (i) and proviso (ii) thereunder of sub-section (5) of Section 45 of the Act and clauses 10 and 12 of the amalgamation scheme to take the contrary view. | 0[ds]Clauses 10 and 12 of the scheme as quoted above merely incorporate the matter specified in clause (i) and the proviso thereunder with which we are concerned and so read and understood, there is no ambiguity or conflict in those clauses of the scheme either inter se or with clause (i) and the proviso thereunder in sub-section (5) of Section 45.In our opinion, that decision which led to the addition of the explanation in Section 45 by Act No. 1 of 1984 to the effect that in this Section the `terms and conditions of service shall not be construed as extending to the rank and status of such employees, is of no assistance in the present case. With respect, if that decision is read to construe clause (i) with its proviso in sub-section (5) of Section 45 as suggested on behalf of respondent No. 1, then we are unable to subscribe to that view since the proper construction of these provisions, according to us, is as indicated above.It follows, that respondent No. 1 could not, therefore, claim to be governed by the age of superannuation of 60 years in the Lakshmi Commercial Bank. When his services were continued on amalgamation of the Lakshmi Commercial Bank with the Canara Bank he became an employee of the Canara Bank and was, therefore, entitled only to the right given by proviso (ii) to clause (i) of sub-section (5) of section 45 which entitled him to the same terms and conditions of service as employees of the corresponding rank of status of the Canara Bank. Age of superannuation of the employees in Canara Bank being 58 years only, respondent No. 1 could not claim to retire at 60 years. The High Court misconstrued clause (i) and proviso (ii) thereunder of sub-section (5) of Section 45 of the Act and clauses 10 and 12 of the amalgamation scheme to take the contrary view. | 0 | 4,312 | 367 | ### Instruction:
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may not contain provision for the continuance of the services of all the employees of the banking company in the transferee bank as is specified in clause (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 clause (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 clause (i). This is clear from the use of the word `may in the opening words of sub-section (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 moralorium, then the scheme must contain a provision that the transferree 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. 13. Clause (i) read with the proviso in sub-section (5) results in enabling the making of a provision in the scheme of amalgamation for the continuance of services of the employees of the banking company in the transferee bank on the same terms and conditions by which they were governed before the date of the order of moratorium but when such a provision is made, the scheme has also to provide that the transferee bank shall grant not later than the period of three years the same terms and conditions of service to the employees who are continued, the terms and conditions of service in the transferee bank in the corresponding rank or status, subject to the requisite qualifications and experience. The right of the employees of the banking company in the transferee bank on continuance of the service by virtue of such a provision in the scheme as provided in clause (i) of sub-section (5) is merely that which is contained in the proviso thereunder, that is, that the transferee bank would treat them at par with its own employees of corresponding rank or status subject to the qualifications and experience irrespective of the earlier terms and conditions of service. In other words, if the scheme provides for continuance of the services of the employees in the transferee bank, then beyond a period of three years from the date on which the scheme is sanctioned by the Central Government, the transferee bank cannot discriminate between such employees and its other employees of corresponding rank or status. The only right of such an employee whose service is so continued is, therefore, to claim parity with the employees of the transferee bank itself of corresponding rank or status subject to equivalent qualifications and experience and no more. The right of such an employee is provided in the proviso to clause (i) and not in the earlier enacting part of clause (i) of sub-section (5) as claimed by respondent No. 1 and upheld by the High Court. 14. Clauses 10 and 12 of the scheme as quoted above merely incorporate the matter specified in clause (i) and the proviso thereunder with which we are concerned and so read and understood, there is no ambiguity or conflict in those clauses of the scheme either inter se or with clause (i) and the proviso thereunder in sub-section (5) of Section 45. 15. Shri S.C. Gupta, learned counsel for respondent No. 1 placing strong reliance on State Bank of Travancore v. Elias Elias & Ors., (1971)2 SCR 28 , attempted to support the view taken by the High Court. In our opinion, that decision which led to the addition of the explanation in Section 45 by Act No. 1 of 1984 to the effect that in this Section the `terms and conditions of service shall not be construed as extending to the rank and status of such employees, is of no assistance in the present case. With respect, if that decision is read to construe clause (i) with its proviso in sub-section (5) of Section 45 as suggested on behalf of respondent No. 1, then we are unable to subscribe to that view since the proper construction of these provisions, according to us, is as indicated above. 16. It follows, that respondent No. 1 could not, therefore, claim to be governed by the age of superannuation of 60 years in the Lakshmi Commercial Bank. When his services were continued on amalgamation of the Lakshmi Commercial Bank with the Canara Bank he became an employee of the Canara Bank and was, therefore, entitled only to the right given by proviso (ii) to clause (i) of sub-section (5) of section 45 which entitled him to the same terms and conditions of service as employees of the corresponding rank of status of the Canara Bank. Age of superannuation of the employees in Canara Bank being 58 years only, respondent No. 1 could not claim to retire at 60 years. The High Court misconstrued clause (i) and proviso (ii) thereunder of sub-section (5) of Section 45 of the Act and clauses 10 and 12 of the amalgamation scheme to take the contrary view.
### Response:
0
### Explanation:
Clauses 10 and 12 of the scheme as quoted above merely incorporate the matter specified in clause (i) and the proviso thereunder with which we are concerned and so read and understood, there is no ambiguity or conflict in those clauses of the scheme either inter se or with clause (i) and the proviso thereunder in sub-section (5) of Section 45.In our opinion, that decision which led to the addition of the explanation in Section 45 by Act No. 1 of 1984 to the effect that in this Section the `terms and conditions of service shall not be construed as extending to the rank and status of such employees, is of no assistance in the present case. With respect, if that decision is read to construe clause (i) with its proviso in sub-section (5) of Section 45 as suggested on behalf of respondent No. 1, then we are unable to subscribe to that view since the proper construction of these provisions, according to us, is as indicated above.It follows, that respondent No. 1 could not, therefore, claim to be governed by the age of superannuation of 60 years in the Lakshmi Commercial Bank. When his services were continued on amalgamation of the Lakshmi Commercial Bank with the Canara Bank he became an employee of the Canara Bank and was, therefore, entitled only to the right given by proviso (ii) to clause (i) of sub-section (5) of section 45 which entitled him to the same terms and conditions of service as employees of the corresponding rank of status of the Canara Bank. Age of superannuation of the employees in Canara Bank being 58 years only, respondent No. 1 could not claim to retire at 60 years. The High Court misconstrued clause (i) and proviso (ii) thereunder of sub-section (5) of Section 45 of the Act and clauses 10 and 12 of the amalgamation scheme to take the contrary view.
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National Insurance Company Ltd Vs. Chamundeswari & Ors | occurred only due to the negligence of the driver of the Eicher van and the annual income of the deceased was Rs.12,29,949/-, has awarded a total compensation of Rs.1,85,08,832/-, including the compensation on conventional heads. Aggrieved by the judgment and order of the High Court, the Insurance Company filed this Appeal before this Court. 5. We have heard Mr. K. K. Bhat, learned counsel appearing for the Appellant–Insurance Company and Mr. V. Balaji, learned counsel appearing for the Respondents–Claimants. 6. The submission of the learned counsel for the appellant is twofold. Firstly, it is submitted that though the Tribunal has correctly apportioned the negligence on the part of the deceased and the driver of Eicher van, the same was overturned by the High Court, contrary to the evidence on record. Mainly it is contended that in the First Information Report, it was categorically mentioned that accident occurred only due to negligence by the deceased. In spite of the same, such important documentary evidence is ignored by the High Court. The learned counsel in support of his arguments placed reliance on the judgments of this Court in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others 2007 (13) SCC 476 and in the case of Nishan Singh and Others v. Oriental Insurance Company Limited 2018 (6) SCC 765 . It is, further, submitted by the learned counsel that the compensation awarded by the High Court is exorbitant in absence of any acceptable evidence on record to show income of the deceased, as pleaded in the Claim Petition. 7. On the other hand, Mr. V. Balaji, learned counsel for the respondents submitted that the accident occurred only due to the sheer negligence on the part of the driver of Eicher van. It is submitted that the deceased was driving Maruti car and ahead of them the Eicher van was proceeding and the driver of the said van turned towards right side without any signal or indicator and the said lapse resulted in the accident. It is, further, submitted that the deceased was working as Manager HR in a Private Limited Company and was earning a sum of Rs.1,33,070/- per month, in spite of the same, the High Court has taken income of the deceased at Rs.12,29,949/- per annum and awarded the compensation. It is submitted that in view of the oral and the documentary evidence on record, a just compensation is awarded by the High Court and there are no grounds to interfere with the same. 8. It is clear from the evidence on record of PW–1 as well as PW–3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW–1 & PW–3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW–1 herself travelled in the very car and PW–3, who has given statement before the police, was examined as eye–witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellants counsel in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others 2007 (13) SCC 476 , this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and Others v. Oriental Insurance Company Limited 2018 (6) SCC 765 , this Court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, framed under Motor Vehicles Act, 1988. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case. 9. Even with regard to quantum of compensation, it is clear from the judgment of the High Court that the accident occurred on 14.10.2013, the High Court has correctly taken into account the salary disclosed by the deceased in Form–16 for the Financial Year 2012-2013 and income of the deceased is taken as Rs.12,29,949/- per annum for the purpose of determination of loss of dependency. Though, it was the claim of the respondents–claimants that the deceased was earning Rs.1,33,070/- per month, the same was not accepted and the High Court itself assessed the income of the deceased at Rs.12,29,949/- per annum. As the deceased was in permanent job and having regard to age of the deceased on the date of the accident, the future prospects and the multiplier were correctly applied by the High Court, which is in conformity with the judgment of this Court in the Case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another 2009 (6) SCC 121 and also in the case of National Insurance Company Limited v. Pranay Sethi and Others 2017 (16) SCC 680 . Even the amount of compensation on other conventional heads is awarded correctly by the High Court. | 0[ds]8. It is clear from the evidence on record of PW–1 as well as PW–3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW–1 & PW–3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW–1 herself travelled in the very car and PW–3, who has given statement before the police, was examined as eye–witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellants counsel in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others 2007 (13) SCC 476 , this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and Others v. Oriental Insurance Company Limited 2018 (6) SCC 765 , this Court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, framed under Motor Vehicles Act, 1988. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case.9. Even with regard to quantum of compensation, it is clear from the judgment of the High Court that the accident occurred on 14.10.2013, the High Court has correctly taken into account the salary disclosed by the deceased in Form–16 for the Financial Year 2012-2013 and income of the deceased is taken as Rs.12,29,949/- per annum for the purpose of determination of loss of dependency. Though, it was the claim of the respondents–claimants that the deceased was earning Rs.1,33,070/- per month, the same was not accepted and the High Court itself assessed the income of the deceased at Rs.12,29,949/- per annum. As the deceased was in permanent job and having regard to age of the deceased on the date of the accident, the future prospects and the multiplier were correctly applied by the High Court, which is in conformity with the judgment of this Court in the Case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another 2009 (6) SCC 121 and also in the case of National Insurance Company Limited v. Pranay Sethi and Others 2017 (16) SCC 680 . Even the amount of compensation on other conventional heads is awarded correctly by the High Court. | 0 | 1,510 | 637 | ### 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:
occurred only due to the negligence of the driver of the Eicher van and the annual income of the deceased was Rs.12,29,949/-, has awarded a total compensation of Rs.1,85,08,832/-, including the compensation on conventional heads. Aggrieved by the judgment and order of the High Court, the Insurance Company filed this Appeal before this Court. 5. We have heard Mr. K. K. Bhat, learned counsel appearing for the Appellant–Insurance Company and Mr. V. Balaji, learned counsel appearing for the Respondents–Claimants. 6. The submission of the learned counsel for the appellant is twofold. Firstly, it is submitted that though the Tribunal has correctly apportioned the negligence on the part of the deceased and the driver of Eicher van, the same was overturned by the High Court, contrary to the evidence on record. Mainly it is contended that in the First Information Report, it was categorically mentioned that accident occurred only due to negligence by the deceased. In spite of the same, such important documentary evidence is ignored by the High Court. The learned counsel in support of his arguments placed reliance on the judgments of this Court in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others 2007 (13) SCC 476 and in the case of Nishan Singh and Others v. Oriental Insurance Company Limited 2018 (6) SCC 765 . It is, further, submitted by the learned counsel that the compensation awarded by the High Court is exorbitant in absence of any acceptable evidence on record to show income of the deceased, as pleaded in the Claim Petition. 7. On the other hand, Mr. V. Balaji, learned counsel for the respondents submitted that the accident occurred only due to the sheer negligence on the part of the driver of Eicher van. It is submitted that the deceased was driving Maruti car and ahead of them the Eicher van was proceeding and the driver of the said van turned towards right side without any signal or indicator and the said lapse resulted in the accident. It is, further, submitted that the deceased was working as Manager HR in a Private Limited Company and was earning a sum of Rs.1,33,070/- per month, in spite of the same, the High Court has taken income of the deceased at Rs.12,29,949/- per annum and awarded the compensation. It is submitted that in view of the oral and the documentary evidence on record, a just compensation is awarded by the High Court and there are no grounds to interfere with the same. 8. It is clear from the evidence on record of PW–1 as well as PW–3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW–1 & PW–3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW–1 herself travelled in the very car and PW–3, who has given statement before the police, was examined as eye–witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellants counsel in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others 2007 (13) SCC 476 , this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and Others v. Oriental Insurance Company Limited 2018 (6) SCC 765 , this Court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, framed under Motor Vehicles Act, 1988. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case. 9. Even with regard to quantum of compensation, it is clear from the judgment of the High Court that the accident occurred on 14.10.2013, the High Court has correctly taken into account the salary disclosed by the deceased in Form–16 for the Financial Year 2012-2013 and income of the deceased is taken as Rs.12,29,949/- per annum for the purpose of determination of loss of dependency. Though, it was the claim of the respondents–claimants that the deceased was earning Rs.1,33,070/- per month, the same was not accepted and the High Court itself assessed the income of the deceased at Rs.12,29,949/- per annum. As the deceased was in permanent job and having regard to age of the deceased on the date of the accident, the future prospects and the multiplier were correctly applied by the High Court, which is in conformity with the judgment of this Court in the Case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another 2009 (6) SCC 121 and also in the case of National Insurance Company Limited v. Pranay Sethi and Others 2017 (16) SCC 680 . Even the amount of compensation on other conventional heads is awarded correctly by the High Court.
### Response:
0
### Explanation:
8. It is clear from the evidence on record of PW–1 as well as PW–3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW–1 & PW–3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW–1 herself travelled in the very car and PW–3, who has given statement before the police, was examined as eye–witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellants counsel in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others 2007 (13) SCC 476 , this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and Others v. Oriental Insurance Company Limited 2018 (6) SCC 765 , this Court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, framed under Motor Vehicles Act, 1988. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case.9. Even with regard to quantum of compensation, it is clear from the judgment of the High Court that the accident occurred on 14.10.2013, the High Court has correctly taken into account the salary disclosed by the deceased in Form–16 for the Financial Year 2012-2013 and income of the deceased is taken as Rs.12,29,949/- per annum for the purpose of determination of loss of dependency. Though, it was the claim of the respondents–claimants that the deceased was earning Rs.1,33,070/- per month, the same was not accepted and the High Court itself assessed the income of the deceased at Rs.12,29,949/- per annum. As the deceased was in permanent job and having regard to age of the deceased on the date of the accident, the future prospects and the multiplier were correctly applied by the High Court, which is in conformity with the judgment of this Court in the Case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another 2009 (6) SCC 121 and also in the case of National Insurance Company Limited v. Pranay Sethi and Others 2017 (16) SCC 680 . Even the amount of compensation on other conventional heads is awarded correctly by the High Court.
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Municipal Corporation of Delhi Vs. Surender Singh & Ors | further consideration by securing details from the appellant. In that regard the position was clear that the private respondents regarding whom the directions had been issued had secured 88.75 per cent and 87 per cent out of 200 marks respectively and the other candidate, namely, Poonam Bala who had ultimately not pressed the writ appeal had obtained 86.25 per cent out of 200 marks. Based on their percentage, the private respondents herein were at the merit position of 1224 and 1447 respectively. Since they were marginally below the last candidate in the select list the Division Bench has proceeded to direct their selection.18. On noticing the manner of consideration made by the Division Bench, we are of the view that the Division Bench has exceeded the jurisdiction while exercising the power of judicial review in the matter of selection process by evolving its own criteria and substituting the same with the criteria adopted by recruiting agency. We are of the said view for the reason that the position of law is well established that the recruiting agency cannot be compelled to fill up all available posts even if the persons of the desired merit are not available. This Court in the case of Ashwani Kumar Singh vs. U.P. Public Service Commission & Ors. (2003 ) 11 SCC 584 relied upon by the learned counsel for the appellant had considered these aspects and held that it is not a rule of universal application that whenever vacancies exist persons who are in the merit list per force have to be appointed. It is held therein that if the employer fixes the cut-off position the same is not to be tinkered with unless it is totally irrational or tainted with malafides. It was further stated therein that the employer in its wisdom may consider the particular range of selection to be appropriate. The decision of the employer to appoint a particular number of candidates cannot be interfered with unless it is irrational or malafide.19. In that background when the DSSSB and the appellant herein were concerned with the quality of teachers to be recruited and had fixed a merit bar to indicate that the persons obtaining the percentage of marks above such bar only would be selected, the employer cannot be forced to lower the bar and recruit teachers who do not possesses the knowledge to the desired extent merely because certain posts had remained vacant which in any event would be carried over to the next recruitment.20. In the instant facts the details were also available before the Division Bench that in between the percentage as obtained by the last selected candidate at 89.25 per cent and the percentage of marks obtained by the second private respondent herein at 87 per cent there were 273 candidates in all in the said range. Despite the availability of the persons who had obtained higher percentage of marks than the second private respondent herein, the Division Bench erred in issuing direction to select the private respondents herein. The learned counsel for the respondents no doubt sought to rely on the decision of this Court in the case of U.P. Jal Nigam & Anr. (supra) which was taken note by the Division Bench to contend that though there were other candidates who had obtained higher percentage of marks than the private respondents herein, the direction issued to select the private respondents herein would not affect the interest of the appellant MCD since at this juncture no other candidate can seek for relief, not having chosen to agitate their rights at an earlier point of time and in that circumstance the relief granted to the private respondents being an equitable relief does not call for interference.21. In that regard we notice that the decision relied upon would not be of assistance to the private respondents herein. The consideration made therein was with regard to the employees who were entitled to continue in service till the age of 60 years. In that circumstance, such of those persons who approached the Court while they were in service without accepting or acquiescing to the retirement were granted the benefit while indicating that those who did not agitate their right will not be entitled to the benefit. In the instant case, the very issue is relating to the recruitment into service and the question is as to whether a candidate who does not obtain the minimum required marks can be directed to be selected while in the regular course he would not be entitled to, but a consideration is directed to be made only because certain posts were still vacant. In such circumstance, the candidates who had not approached the Court had not acquiesced any right available to them but had not approached the Court only by realising the position that they do not possess the merit more than the last candidate whose percentage was taken as the cut-off percentage. Therefore in that circumstance irrespective of the fact whether the others would approach the Court or not, the private respondents herein could not have been given the benefit to be selected by lowering the bar, more so when it was evident that there were 40 candidates above the merit of Shri Rakesh Sharma and 263 candidates above the merit of Shri Surender Singh.22. Any undue sympathy shown to the private respondents herein so as to direct their selection despite not possessing the desired merit would amount to interference with the right of the employer to have suitable candidates and would also cause injustice to the other candidates who had participated in the process and had secured a better percentage of marks than the private respondents herein but lower than the cut-off percentage and had accepted the legal position with regard to the employer?s right in selection process. In such event providing the benefit to the private respondents herein by applying the principles laid in the case of U.P. Jal Nigam (supra) as done by the Division Bench would not be justified. | 1[ds]From a perusal of the said Clause it is noticed that though under the very Clause there is no cut-off marks specified, Clause 25 would, however, provide the full discretion to the DSSSB to fix the minimum qualifying marks for selection. In the instant case, keeping in view that the recruitment was for the post of Assistant Teacher (Primary) and also taking note of the orders passed by the High Court in an earlier petition requiring the maintenance of minimum standards, the DSSSB while preparing the select list had stopped the selection at a point which was indicated as the cut-off percentage. In a circumstance where Clause 25 was depicted in the Advertisement No.1/2006, when the private respondents herein and the other petitioners before the High Court were responding to the said Advertisement, if at all they had a grievance that the Clause is arbitrary and might affect their right ultimately since no minimum marks that is to be obtained has been indicated therein, they were required to assail the same at that stage. On the other hand, despite being aware of the Clause providing discretion to DSSSB to fix the minimum qualifying marks, they have participated in the selection process by appearing for the qualifying examination without raising any protest. In that circumstance, the principle of approbate and reprobate would apply and the private respondents herein or any other candidate who participated in the process cannot be heard to complain in that regard.It is no doubt true that the select list was concluded at the particular cut-off point wherein the last selected candidate under the unreserved category had obtained 89.25 per cent. The said decision had been taken by the DSSSB to ensure the minimum standard of the teachers that would be recruited and the appellant herein being the recruiting agency in any event, did not have objection. In any event, it is not the case of the petitioners that they had obtained higher marks than the candidate who was shown as the last candidate in the merit list. If that was the position and when it is noticed that the appellant and the other writ petitioners had secured lesser percentage of marks than the last candidate included in the merit list, there could not have been any further consideration whatsoever in the course of judicial review. To that extent, the learned Single Judge, from the observations as noticed above has kept in view all aspects of the matter and in that light had arrived at the conclusion that no error was committed either by the DSSSB or the appellant herein.Having taken note of this aspect we further take note that the consideration as made by the Division Bench would indicate that even though no fault was found with the impugned Clause contained in the Advertisement, what has weighed in the mind of the Division Bench is only that even after selecting the last candidate who had obtained 89.25 per cent out of the two papers for the total marks of 200, there still remained vacant 63 posts out of the total notified vacancies and the dossiers of the selected candidates were returned to the appellant herein leaving the said 63 posts unfilled. It is in that circumstance, the Division Bench undertook the exercise of making the further consideration by securing details from the appellant. In that regard the position was clear that the private respondents regarding whom the directions had been issued had secured 88.75 per cent and 87 per cent out of 200 marks respectively and the other candidate, namely, Poonam Bala who had ultimately not pressed the writ appeal had obtained 86.25 per cent out of 200 marks. Based on their percentage, the private respondents herein were at the merit position of 1224 and 1447 respectively. Since they were marginally below the last candidate in the select list the Division Bench has proceeded to direct their selection.On noticing the manner of consideration made by the Division Bench, we are of the view that the Division Bench has exceeded the jurisdiction while exercising the power of judicial review in the matter of selection process by evolving its own criteria and substituting the same with the criteria adopted by recruiting agency. We are of the said view for the reason that the position of law is well established that the recruiting agency cannot be compelled to fill up all available posts even if the persons of the desired merit are notdecision of the employer to appoint a particular number of candidates cannot be interfered with unless it is irrational or malafide.In that background when the DSSSB and the appellant herein were concerned with the quality of teachers to be recruited and had fixed a merit bar to indicate that the persons obtaining the percentage of marks above such bar only would be selected, the employer cannot be forced to lower the bar and recruit teachers who do not possesses the knowledge to the desired extent merely because certain posts had remained vacant which in any event would be carried over to the next recruitment.In the instant facts the details were also available before the Division Bench that in between the percentage as obtained by the last selected candidate at 89.25 per cent and the percentage of marks obtained by the second private respondent herein at 87 per cent there were 273 candidates in all in the said range. Despite the availability of the persons who had obtained higher percentage of marks than the second private respondent herein, the Division Bench erred in issuing direction to select the private respondents herein.In that regard we notice that the decision relied upon would not be of assistance to the private respondents herein. The consideration made therein was with regard to the employees who were entitled to continue in service till the age of 60 years. In that circumstance, such of those persons who approached the Court while they were in service without accepting or acquiescing to the retirement were granted the benefit while indicating that those who did not agitate their right will not be entitled to the benefit. In the instant case, the very issue is relating to the recruitment into service and the question is as to whether a candidate who does not obtain the minimum required marks can be directed to be selected while in the regular course he would not be entitled to, but a consideration is directed to be made only because certain posts were still vacant. In such circumstance, the candidates who had not approached the Court had not acquiesced any right available to them but had not approached the Court only by realising the position that they do not possess the merit more than the last candidate whose percentage was taken as the cut-off percentage. Therefore in that circumstance irrespective of the fact whether the others would approach the Court or not, the private respondents herein could not have been given the benefit to be selected by lowering the bar, more so when it was evident that there were 40 candidates above the merit of Shri Rakesh Sharma and 263 candidates above the merit of Shri Surender Singh.Any undue sympathy shown to the private respondents herein so as to direct their selection despite not possessing the desired merit would amount to interference with the right of the employer to have suitable candidates and would also cause injustice to the other candidates who had participated in the process and had secured a better percentage of marks than the private respondents herein but lower than the cut-off percentage and had accepted the legal position with regard to the employer?s right in selection process. In such event providing the benefit to the private respondents herein by applying the principles laid in the case of U.P. Jal Nigam (supra) as done by the Division Bench would not be justified. | 1 | 5,008 | 1,378 | ### 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:
further consideration by securing details from the appellant. In that regard the position was clear that the private respondents regarding whom the directions had been issued had secured 88.75 per cent and 87 per cent out of 200 marks respectively and the other candidate, namely, Poonam Bala who had ultimately not pressed the writ appeal had obtained 86.25 per cent out of 200 marks. Based on their percentage, the private respondents herein were at the merit position of 1224 and 1447 respectively. Since they were marginally below the last candidate in the select list the Division Bench has proceeded to direct their selection.18. On noticing the manner of consideration made by the Division Bench, we are of the view that the Division Bench has exceeded the jurisdiction while exercising the power of judicial review in the matter of selection process by evolving its own criteria and substituting the same with the criteria adopted by recruiting agency. We are of the said view for the reason that the position of law is well established that the recruiting agency cannot be compelled to fill up all available posts even if the persons of the desired merit are not available. This Court in the case of Ashwani Kumar Singh vs. U.P. Public Service Commission & Ors. (2003 ) 11 SCC 584 relied upon by the learned counsel for the appellant had considered these aspects and held that it is not a rule of universal application that whenever vacancies exist persons who are in the merit list per force have to be appointed. It is held therein that if the employer fixes the cut-off position the same is not to be tinkered with unless it is totally irrational or tainted with malafides. It was further stated therein that the employer in its wisdom may consider the particular range of selection to be appropriate. The decision of the employer to appoint a particular number of candidates cannot be interfered with unless it is irrational or malafide.19. In that background when the DSSSB and the appellant herein were concerned with the quality of teachers to be recruited and had fixed a merit bar to indicate that the persons obtaining the percentage of marks above such bar only would be selected, the employer cannot be forced to lower the bar and recruit teachers who do not possesses the knowledge to the desired extent merely because certain posts had remained vacant which in any event would be carried over to the next recruitment.20. In the instant facts the details were also available before the Division Bench that in between the percentage as obtained by the last selected candidate at 89.25 per cent and the percentage of marks obtained by the second private respondent herein at 87 per cent there were 273 candidates in all in the said range. Despite the availability of the persons who had obtained higher percentage of marks than the second private respondent herein, the Division Bench erred in issuing direction to select the private respondents herein. The learned counsel for the respondents no doubt sought to rely on the decision of this Court in the case of U.P. Jal Nigam & Anr. (supra) which was taken note by the Division Bench to contend that though there were other candidates who had obtained higher percentage of marks than the private respondents herein, the direction issued to select the private respondents herein would not affect the interest of the appellant MCD since at this juncture no other candidate can seek for relief, not having chosen to agitate their rights at an earlier point of time and in that circumstance the relief granted to the private respondents being an equitable relief does not call for interference.21. In that regard we notice that the decision relied upon would not be of assistance to the private respondents herein. The consideration made therein was with regard to the employees who were entitled to continue in service till the age of 60 years. In that circumstance, such of those persons who approached the Court while they were in service without accepting or acquiescing to the retirement were granted the benefit while indicating that those who did not agitate their right will not be entitled to the benefit. In the instant case, the very issue is relating to the recruitment into service and the question is as to whether a candidate who does not obtain the minimum required marks can be directed to be selected while in the regular course he would not be entitled to, but a consideration is directed to be made only because certain posts were still vacant. In such circumstance, the candidates who had not approached the Court had not acquiesced any right available to them but had not approached the Court only by realising the position that they do not possess the merit more than the last candidate whose percentage was taken as the cut-off percentage. Therefore in that circumstance irrespective of the fact whether the others would approach the Court or not, the private respondents herein could not have been given the benefit to be selected by lowering the bar, more so when it was evident that there were 40 candidates above the merit of Shri Rakesh Sharma and 263 candidates above the merit of Shri Surender Singh.22. Any undue sympathy shown to the private respondents herein so as to direct their selection despite not possessing the desired merit would amount to interference with the right of the employer to have suitable candidates and would also cause injustice to the other candidates who had participated in the process and had secured a better percentage of marks than the private respondents herein but lower than the cut-off percentage and had accepted the legal position with regard to the employer?s right in selection process. In such event providing the benefit to the private respondents herein by applying the principles laid in the case of U.P. Jal Nigam (supra) as done by the Division Bench would not be justified.
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event, it is not the case of the petitioners that they had obtained higher marks than the candidate who was shown as the last candidate in the merit list. If that was the position and when it is noticed that the appellant and the other writ petitioners had secured lesser percentage of marks than the last candidate included in the merit list, there could not have been any further consideration whatsoever in the course of judicial review. To that extent, the learned Single Judge, from the observations as noticed above has kept in view all aspects of the matter and in that light had arrived at the conclusion that no error was committed either by the DSSSB or the appellant herein.Having taken note of this aspect we further take note that the consideration as made by the Division Bench would indicate that even though no fault was found with the impugned Clause contained in the Advertisement, what has weighed in the mind of the Division Bench is only that even after selecting the last candidate who had obtained 89.25 per cent out of the two papers for the total marks of 200, there still remained vacant 63 posts out of the total notified vacancies and the dossiers of the selected candidates were returned to the appellant herein leaving the said 63 posts unfilled. It is in that circumstance, the Division Bench undertook the exercise of making the further consideration by securing details from the appellant. In that regard the position was clear that the private respondents regarding whom the directions had been issued had secured 88.75 per cent and 87 per cent out of 200 marks respectively and the other candidate, namely, Poonam Bala who had ultimately not pressed the writ appeal had obtained 86.25 per cent out of 200 marks. Based on their percentage, the private respondents herein were at the merit position of 1224 and 1447 respectively. Since they were marginally below the last candidate in the select list the Division Bench has proceeded to direct their selection.On noticing the manner of consideration made by the Division Bench, we are of the view that the Division Bench has exceeded the jurisdiction while exercising the power of judicial review in the matter of selection process by evolving its own criteria and substituting the same with the criteria adopted by recruiting agency. We are of the said view for the reason that the position of law is well established that the recruiting agency cannot be compelled to fill up all available posts even if the persons of the desired merit are notdecision of the employer to appoint a particular number of candidates cannot be interfered with unless it is irrational or malafide.In that background when the DSSSB and the appellant herein were concerned with the quality of teachers to be recruited and had fixed a merit bar to indicate that the persons obtaining the percentage of marks above such bar only would be selected, the employer cannot be forced to lower the bar and recruit teachers who do not possesses the knowledge to the desired extent merely because certain posts had remained vacant which in any event would be carried over to the next recruitment.In the instant facts the details were also available before the Division Bench that in between the percentage as obtained by the last selected candidate at 89.25 per cent and the percentage of marks obtained by the second private respondent herein at 87 per cent there were 273 candidates in all in the said range. Despite the availability of the persons who had obtained higher percentage of marks than the second private respondent herein, the Division Bench erred in issuing direction to select the private respondents herein.In that regard we notice that the decision relied upon would not be of assistance to the private respondents herein. The consideration made therein was with regard to the employees who were entitled to continue in service till the age of 60 years. In that circumstance, such of those persons who approached the Court while they were in service without accepting or acquiescing to the retirement were granted the benefit while indicating that those who did not agitate their right will not be entitled to the benefit. In the instant case, the very issue is relating to the recruitment into service and the question is as to whether a candidate who does not obtain the minimum required marks can be directed to be selected while in the regular course he would not be entitled to, but a consideration is directed to be made only because certain posts were still vacant. In such circumstance, the candidates who had not approached the Court had not acquiesced any right available to them but had not approached the Court only by realising the position that they do not possess the merit more than the last candidate whose percentage was taken as the cut-off percentage. Therefore in that circumstance irrespective of the fact whether the others would approach the Court or not, the private respondents herein could not have been given the benefit to be selected by lowering the bar, more so when it was evident that there were 40 candidates above the merit of Shri Rakesh Sharma and 263 candidates above the merit of Shri Surender Singh.Any undue sympathy shown to the private respondents herein so as to direct their selection despite not possessing the desired merit would amount to interference with the right of the employer to have suitable candidates and would also cause injustice to the other candidates who had participated in the process and had secured a better percentage of marks than the private respondents herein but lower than the cut-off percentage and had accepted the legal position with regard to the employer?s right in selection process. In such event providing the benefit to the private respondents herein by applying the principles laid in the case of U.P. Jal Nigam (supra) as done by the Division Bench would not be justified.
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M/S ENVITECH MARINE CONSULTANTS PRIVATE LIMITED AND OTHERS Vs. UNION OF INDIA & ANR | 1. The writ petition filed by the petitioners, seeking a No Objection Certificate from the Ministry of Defence of the Government of India, for the conversion of the warship INS Viraat from scrap to preserve having been disposed of by the High Court of Bombay, without commenting upon the merits of the claim of the petitioners, but merely directing the Union of India to dispose of a pending representation of the petitioners, the writ petitioners before the High Court have come up with the above Special Leave Petitions. 2. We have heard Mrs. Rupali Vishnukant Sharma, petitioner No.3 appearing in person both on her own behalf and on behalf of petitioner Nos.1 and 2, Shri Balbir Singh, learned Additional Solicitor General for the Union of India and Shri Rajeev Dhavan, learned senior counsel appearing for the second respondent. 3. INS Viraat, formerly known as HMS Hermes, is the oldest serving warship in the world. It served the British Navy from November, 1959 to April, 1984 and after refurbishment it was commissioned into the Indian Navy in 1987. 4. On 1.07.2019 the Parliament was informed that the Government had taken a decision, in consultation with the Navy to scrap INS Viraat, as the Indian Navy had been incurring expenditure on its upkeep and no State Government was willing to take the ship, on account of financial liability. Therefore, the sale of the decommissioned vessel through public auction was arranged through a Metal Scrap Trade Corporation Limited (MSTC Ltd.) 5. In December, 2019, a public auction was held, but the same was cancelled, as the highest bid was not deemed sufficient. 6. According to the petitioners, they wanted to preserve INS Viraat as a memorial to promote and strengthen Indian and British Navy traditions, history and heritage and they approached various corporate houses to make the project a public private partnership. 7. It is the case of the petitioners that Blackstone Corporation, Canada, issued a Letter of Interest dated 26.03.2020. Therefore, petitioner No.3 addressed a letter dated 28.07.2020 seeking advice on converting the warship into a Maritime Museum cum adventure centre. Though the first respondent acknowledged receipt of the representation of the petitioners and directed the petitioners to resubmit the proposal, subsequently the first respondent sought a NOC from the Government of Goa. But by a reply dated 20.09.2020, the Chief Minister of Goa stated that the State Government can issue no objection provided the Ministry of Defence agreed to the proposal of the petitioners and no financial obligation fell upon the State Government. 8. But in the meantime fresh tenders were opened and the second respondent became the highest bidder. Therefore, a letter of acceptance was issued on 13.08.2020 by MSTC Limited, to the second respondent. The second respondent made a total payment of about Rs. 38.54 crores, and the second respondent was issued with a delivery Order dated 22.10.2020. 9. In the meantime the ship was permanently beached on 30.9.2020 and the petitioners appear to have approached the second respondent. By a mail dated 6.10.2020 the second respondent, without giving any guarantee, advised the petitioners to take a NOC from the Government of India with a direction to the associated departments of the Central and State Governments for taking the ship out of the yard and converting it into a Museum. It was made clear by the second respondent in the said mail dated 6.10.2020 that their agreement to the proposal was subject to two more conditions namely (i) that 100% payment should be made before 12th October, 2020 and (ii) that the deadline for pulling the ship towards the ocean was 15th October, 2020. 10. Obviously the petitioners could not comply with those conditions. However, they moved the High Court of Bombay by way of a writ petition in Writ Petition No.5412 of 2020. This writ petition was disposed of by the High Court of Bombay by an Order dated 3.11.2020, directing the Union of India to take a decision on the representation of the petitioners. It was clarified by the High Court that they have not commented on the merits of the petitioners claim nor had they recognized any right in favour of the petitioners. 11. Not satisfied with the said order, the petitioners came up with the above special leave petitions. Considering the spirit with which the petitioners had come to Court, notice was ordered in the special leave petitions and an interim order to maintain status quo with regard to dismantling/breaking of the ship was also granted. 12. Thereafter, the second respondent came up with applications for urgent hearing and vacating the status quo order and we took up the Special Leave Petitions for consideration. 13. Three factual aspects clinch the issue arising for our consideration. The first is that the second respondent was willing to subscribe to the sentiments of the petitioners, subject to certain conditions stipulated in the E-Mail dated 6.10.2020, but the petitioners could not comply with those conditions. The second is that subsequent to the disposal of the writ petition by Order dated 3.11.2020, the Ministry of Defence passed an Order dated 27.11.2020 rejecting the representation of the petitioners. This order has not been challenged by petitioners. Obviously the petitioners cannot do anything with the warship, without the NOC from Ministry of Defence and the letter of the Ministry of Defence dated 27.11.2020 has virtually put the lid on the aspirations of the petitioners. Thirdly, the second respondent claims to have started the dismantling/recycling work three months ago and according to the certificate issued by the Marine Surveyors, about 35 to 40% work of dismantling had already been completed. The certificate of the surveyors shows that the vessel got severe hull damage in many areas, during embarkation of loose parts and equipments. All documents and certificates as well as the operational manuals have been removed and the navigational items and communications devices broken and removed. According to the surveyors, the vessel is in grounded condition and can be called a dead structure. | 0[ds]13. Three factual aspects clinch the issue arising for our consideration. The first is that the second respondent was willing to subscribe to the sentiments of the petitioners, subject to certain conditions stipulated in the E-Mail dated 6.10.2020, but the petitioners could not comply with those conditions. The second is that subsequent to the disposal of the writ petition by Order dated 3.11.2020, the Ministry of Defence passed an Order dated 27.11.2020 rejecting the representation of the petitioners. This order has not been challenged by petitioners. Obviously the petitioners cannot do anything with the warship, without the NOC from Ministry of Defence and the letter of the Ministry of Defence dated 27.11.2020 has virtually put the lid on the aspirations of the petitioners. Thirdly, the second respondent claims to have started the dismantling/recycling work three months ago and according to the certificate issued by the Marine Surveyors, about 35 to 40% work of dismantling had already been completed. The certificate of the surveyors shows that the vessel got severe hull damage in many areas, during embarkation of loose parts and equipments. All documents and certificates as well as the operational manuals have been removed and the navigational items and communications devices broken and removed. According to the surveyors, the vessel is in grounded condition and can be called a dead structure. | 0 | 1,104 | 245 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
1. The writ petition filed by the petitioners, seeking a No Objection Certificate from the Ministry of Defence of the Government of India, for the conversion of the warship INS Viraat from scrap to preserve having been disposed of by the High Court of Bombay, without commenting upon the merits of the claim of the petitioners, but merely directing the Union of India to dispose of a pending representation of the petitioners, the writ petitioners before the High Court have come up with the above Special Leave Petitions. 2. We have heard Mrs. Rupali Vishnukant Sharma, petitioner No.3 appearing in person both on her own behalf and on behalf of petitioner Nos.1 and 2, Shri Balbir Singh, learned Additional Solicitor General for the Union of India and Shri Rajeev Dhavan, learned senior counsel appearing for the second respondent. 3. INS Viraat, formerly known as HMS Hermes, is the oldest serving warship in the world. It served the British Navy from November, 1959 to April, 1984 and after refurbishment it was commissioned into the Indian Navy in 1987. 4. On 1.07.2019 the Parliament was informed that the Government had taken a decision, in consultation with the Navy to scrap INS Viraat, as the Indian Navy had been incurring expenditure on its upkeep and no State Government was willing to take the ship, on account of financial liability. Therefore, the sale of the decommissioned vessel through public auction was arranged through a Metal Scrap Trade Corporation Limited (MSTC Ltd.) 5. In December, 2019, a public auction was held, but the same was cancelled, as the highest bid was not deemed sufficient. 6. According to the petitioners, they wanted to preserve INS Viraat as a memorial to promote and strengthen Indian and British Navy traditions, history and heritage and they approached various corporate houses to make the project a public private partnership. 7. It is the case of the petitioners that Blackstone Corporation, Canada, issued a Letter of Interest dated 26.03.2020. Therefore, petitioner No.3 addressed a letter dated 28.07.2020 seeking advice on converting the warship into a Maritime Museum cum adventure centre. Though the first respondent acknowledged receipt of the representation of the petitioners and directed the petitioners to resubmit the proposal, subsequently the first respondent sought a NOC from the Government of Goa. But by a reply dated 20.09.2020, the Chief Minister of Goa stated that the State Government can issue no objection provided the Ministry of Defence agreed to the proposal of the petitioners and no financial obligation fell upon the State Government. 8. But in the meantime fresh tenders were opened and the second respondent became the highest bidder. Therefore, a letter of acceptance was issued on 13.08.2020 by MSTC Limited, to the second respondent. The second respondent made a total payment of about Rs. 38.54 crores, and the second respondent was issued with a delivery Order dated 22.10.2020. 9. In the meantime the ship was permanently beached on 30.9.2020 and the petitioners appear to have approached the second respondent. By a mail dated 6.10.2020 the second respondent, without giving any guarantee, advised the petitioners to take a NOC from the Government of India with a direction to the associated departments of the Central and State Governments for taking the ship out of the yard and converting it into a Museum. It was made clear by the second respondent in the said mail dated 6.10.2020 that their agreement to the proposal was subject to two more conditions namely (i) that 100% payment should be made before 12th October, 2020 and (ii) that the deadline for pulling the ship towards the ocean was 15th October, 2020. 10. Obviously the petitioners could not comply with those conditions. However, they moved the High Court of Bombay by way of a writ petition in Writ Petition No.5412 of 2020. This writ petition was disposed of by the High Court of Bombay by an Order dated 3.11.2020, directing the Union of India to take a decision on the representation of the petitioners. It was clarified by the High Court that they have not commented on the merits of the petitioners claim nor had they recognized any right in favour of the petitioners. 11. Not satisfied with the said order, the petitioners came up with the above special leave petitions. Considering the spirit with which the petitioners had come to Court, notice was ordered in the special leave petitions and an interim order to maintain status quo with regard to dismantling/breaking of the ship was also granted. 12. Thereafter, the second respondent came up with applications for urgent hearing and vacating the status quo order and we took up the Special Leave Petitions for consideration. 13. Three factual aspects clinch the issue arising for our consideration. The first is that the second respondent was willing to subscribe to the sentiments of the petitioners, subject to certain conditions stipulated in the E-Mail dated 6.10.2020, but the petitioners could not comply with those conditions. The second is that subsequent to the disposal of the writ petition by Order dated 3.11.2020, the Ministry of Defence passed an Order dated 27.11.2020 rejecting the representation of the petitioners. This order has not been challenged by petitioners. Obviously the petitioners cannot do anything with the warship, without the NOC from Ministry of Defence and the letter of the Ministry of Defence dated 27.11.2020 has virtually put the lid on the aspirations of the petitioners. Thirdly, the second respondent claims to have started the dismantling/recycling work three months ago and according to the certificate issued by the Marine Surveyors, about 35 to 40% work of dismantling had already been completed. The certificate of the surveyors shows that the vessel got severe hull damage in many areas, during embarkation of loose parts and equipments. All documents and certificates as well as the operational manuals have been removed and the navigational items and communications devices broken and removed. According to the surveyors, the vessel is in grounded condition and can be called a dead structure.
### Response:
0
### Explanation:
13. Three factual aspects clinch the issue arising for our consideration. The first is that the second respondent was willing to subscribe to the sentiments of the petitioners, subject to certain conditions stipulated in the E-Mail dated 6.10.2020, but the petitioners could not comply with those conditions. The second is that subsequent to the disposal of the writ petition by Order dated 3.11.2020, the Ministry of Defence passed an Order dated 27.11.2020 rejecting the representation of the petitioners. This order has not been challenged by petitioners. Obviously the petitioners cannot do anything with the warship, without the NOC from Ministry of Defence and the letter of the Ministry of Defence dated 27.11.2020 has virtually put the lid on the aspirations of the petitioners. Thirdly, the second respondent claims to have started the dismantling/recycling work three months ago and according to the certificate issued by the Marine Surveyors, about 35 to 40% work of dismantling had already been completed. The certificate of the surveyors shows that the vessel got severe hull damage in many areas, during embarkation of loose parts and equipments. All documents and certificates as well as the operational manuals have been removed and the navigational items and communications devices broken and removed. According to the surveyors, the vessel is in grounded condition and can be called a dead structure.
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HRD Corporation Vs. GAIL Limited | insurer A has been successful in the first arbitration, insurer B may in practice learn of this success and the identity of the arbitrators who have upheld insurer As arguments. It follows from Locabail and AMEC Capital Projects Ltd v. Whitefriars City Estates Ltd [2005] 1 All ER 723 that an objection to the appointment of a member of a previous panel would not be sustained simply on the basis that the arbitrator had previously decided a particular issue in favour of one or other party. It equally follows that an arbitrator can properly be appointed at the outset in respect of a number of layers of coverage, even though he may then decide the dispute under one layer before hearing the case on another layer."26. We were, however, referred to Russell on Arbitration (23rd edition), in which the learned author has referred to the ground of bias in the context of previous views expressed by an arbitrator. In Chapter 4-124, the learned author states as follows:"In certain circumstances, previously expressed views of an arbitrator, which suggest a certain pre-disposition to a particular course of action, outcome or in favour of a party, can constitute grounds for removal. One of the Locabail v. Bayfield applications ([2000] 1 All E.R. 65 at 92-93) against a judge was successful on this basis. The judge had written four strongly worded articles which led the Court to conclude that an objective apprehension of bias may arise on the part of one of the parties. However, a challenge against a sole arbitrator in a trade arbitration which alleged apparent bias because the arbitrator had previously been involved in a dispute with one of the parties failed. The judge found this on the facts to be no more than "an ordinary incident of commercial life" occurring in the relatively small field of trade arbitrations where it was thought the parties and arbitrators were quite likely to have had prior dealing with each other (Rustal Trading Ltd. v. Gill and Duffas SA [2000] 1 Lloyds Rep. 14). Similarly, the fact that an insurance arbitrator had previously given a statement in another arbitration (and may have been called to give evidence subsequently) about the meaning of a standard form clause which might have had a tentative bearing on the present arbitration would not give grounds for removal (Argonaut Insurance Co v. Republic Insurance Co [2003] EWHC 547)."27. The judgment referred to in Russell is reported in Locabail v. Bayfield, (2000) 1 All E.R. 65. In paragraph 89 thereof, the Court of Appeal stated:"We have found this a difficult and anxious application to resolve. There is no suggestion of actual bias on the part of the recorder. Nor, quite rightly, is any imputation made as to his good faith. His voluntary disclosure of the matters already referred to show that he was conscious of his judicial duty. The views he expressed in the articles relied on are no doubt shared by other experienced commentators. We have, however, to ask, taking a broad commonsense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leant in favour of the claimant and against the defendant in resolving the factual issues between them. Not without misgiving, we conclude that there was on the facts here a real danger of such a result. We do not think a lay observer with knowledge of the facts could have excluded that possibility, and nor can we. We accordingly grant permission to appeal on this ground, allow the defendants appeal and order a retrial. We should not be thought to hold any view at all on the likely or proper outcome of any retrial."28. We have not been shown anything to indicate that Justice Doabia would be a person holding a pronounced anti-claimant view as in Locabail (supra). Therefore, we are satisfied that there is no real possibility that Justice Doabia will not bring an open mind and objective judgment to bear on arguments made by the parties in the fourth arbitration, which may or may not differ from arguments made in the third arbitration.29. The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure, in that his disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the appellant to raise this point at this stage as it was never raised earlier. Obviously, if Justice Doabia did not indicate anything to the contrary, he would be able to devote sufficient time to the arbitration and complete the process within 12 months.30. It was also faintly urged that the arbitrator must without delay make a disclosure to the parties in writing. Justice Doabias disclosure was by a letter dated October 31, 2016 which was sent to the Secretary General of the International Centre for Alternative Dispute Resolution (ICADR). It has come on record that for no fault of Justice Doabia, the ICADR, through oversight, did not handover the said letter or a copy thereof to the appellant until November 24, 2016, which is stated in its letter dated November 29, 2016. This contention also, therefore, need not detain us.31. It was then argued that under Explanation 3 to the Seventh Schedule, maritime or commodities arbitration may draw arbitrators from a small, specialized pool, in which case it is the custom and practice for parties to appoint the same arbitrator in different cases. This is in contrast to an arbitrator in other cases where he should not be appointed more than once. We are afraid that this argument again cannot be countenanced for the simple reason that Explanation 3 stands by itself and has to be applied as a relevant fact to be taken into account. It has no indirect bearing on any of the other items mentioned in the Seventh Schedule. | 0[ds]Section 12(5) read with the Seventh Schedule makes it clear that if the arbitrator falls in any one of the categories specified in the Seventh Schedule, he becomes "ineligible" to act as arbitrator. Once he becomes ineligible, it is clear that, under Section 14(1)(a), he then becomes de jure unable to perform his functions inasmuch as, in law, he is regarded as "ineligible". In order to determine whether an arbitrator is de jure unable to perform his functions, it is not necessary to go to the Arbitral Tribunal under Section 13. Since such a person would lack inherent jurisdiction to proceed any further, an application may be filed under Section 14(2) to the Court to decide on the termination of his/her mandate on this ground. As opposed to this, in a challenge where grounds stated in the Fifth Schedule are disclosed, which give rise to justifiable doubts as to the arbitrators independence or impartiality, such doubts as to independence or impartiality have to be determined as a matter of fact in the facts of the particular challenge by the Arbitral Tribunal under Section 13. If a challenge is not successful, and the Arbitral Tribunal decides that there are no justifiable doubts as to the independence or impartiality of the arbitrator/arbitrators, the Tribunal must then continue the arbitral proceedings under Section 13(4) and make an award. It is only after such award is made, that the party challenging the arbitrators appointment on grounds contained in the Fifth Schedule may make an application for setting aside the arbitral award in accordance with Section 34 on the aforesaid grounds. It is clear, therefore, that any challenge contained in the Fifth Schedule against the appointment of Justice Doabia and Justice Lahoti cannot be gone into at this stage, but will be gone into only after the Arbitral Tribunal has given an award. Therefore, we express no opinion on items contained in the Fifth Schedule under which the appellant may challenge the appointment of either arbitrator. They will be free to do so only after an award is rendered by the Tribunal.Shri Divan is right in drawing our attention to the fact that the 246th Law Commission Report brought in amendments to the Act narrowing the grounds of challengewith seeing that independent, impartial and neutral arbitrators are appointed and that, therefore, we must be careful in preserving such independence, impartiality and neutrality of arbitrators. In fact, the same Law Commission Report has amended Sections 28 and 34 so as to narrow grounds of challenge available under the Act. The judgment in ONGC v. Saw Pipes Ltd, (2003) 5 SCC 705 , has been expressly done away with. So has the judgment in ONGC v. Western Geco International Ltd., (2014) 9 SCC 263. Both Sections 34 and 48 have been brought back to the position of law contained in Renusagar Power Plant Co Ltd. v. General Electric Co., (1994) Supp (1) SCC 644, where "public policy" will now include only two of the three things set out therein, viz., "fundamental policy of Indian law" and "justice or morality". The ground relating to "the interest of India" no longer obtains. "Fundamental policy of Indian law" is now to be understood as laid down in Renusagar (supra). "Justice or morality" has been tightened and is now to be understood as meaning only basic notions of justice and morality i.e. such notions as would shock the conscience of the Court as understood in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49. Section 28(3) has also been amended to bring it in line with the judgment of this Court in Associate Builders (supra), making it clear that the construction of the terms of the contract is primarily for the arbitrator to decide unless it is found that such a construction is not a possible one.19. Thus, an award rendered in an international commercial arbitrationwhether in India or abroadis subject to the same tests qua setting aside under Section 34 or enforcement under Section 48, as the case may be. The only difference is that in an arbitral award governed by Part I, arising out of an arbitration other than an international commercial arbitration, one more ground of challenge is available viz. patent illegality appearing on the face of the award. The ground of patent illegality would not be established, if there is merely an erroneous application of the law or aof evidence.20. However, to accede to Shri Divans submission that because the grounds for challenge have been narrowed as aforesaid, we must construe the items in the Fifth and Seventh Schedules in the most expansive manner, so that the remotest likelihood of bias gets removed, is not an acceptable way of interpreting the Schedules. As has been pointed out by us hereinabove, the items contained in the Schedules owe their origin to the IBA Guidelines, which are to be construed in the light of the general principles contained thereinthat every arbitrator shall be impartial and independent of the parties at the time of accepting his/her appointment. Doubts as to the above are only justifiable if a reasonable third person having knowledge of the relevant facts and circumstances would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case in reaching his or her decision. This test requires taking a broadapproach to the items stated in the Fifth and Seventh Schedules. This approach would, therefore, require a fair construction of the words used therein, neither tending to enlarge or restrict them unduly. It is with these prefatory remarks that we proceed to deal with the arguments of both sides in construing the language of the Seventh Schedule.On reading the aforesaid guideline and reading the heading which appears with Item 16, namely "Relationship of the arbitrator to the dispute", it is obvious that the arbitrator has to have a previous involvement in the very dispute contained in the present arbitration. Admittedly, Justice Doabia has no such involvement. Further, Item 16 must be read along with Items 22 and 24 of the Fifth Schedule. The disqualification contained in Items 22 and 24 is not absolute, as an arbitrator who has, within the past three years, been appointed as arbitrator on two or more occasions by one of the parties or an affiliate, may yet not be disqualified on his showing that he was independent and impartial on the earlier two occasions. Also, if he currently serves or has served within the past three years as arbitrator in another arbitration on a related issue, he may be disqualified under Item 24, which must then be contrasted with Item 16. Item 16 cannot be read as including previous involvements in another arbitration on a related issue involving one of the parties as otherwise Item 24 will be rendered largely ineffective. It must not be forgotten that Item 16 also appears in the Fifth Schedule and has, therefore, to be harmoniously read with Item 24.The fact that Justice Doabia has already rendered an award in a previous arbitration between the parties would not, by itself, on the ground of reasonable likelihood of bias, render him ineligible to be an arbitrator in a subsequent arbitration.We have not been shown anything to indicate that Justice Doabia would be a person holding a pronouncedview as in Locabail (supra). Therefore, we are satisfied that there is no real possibility that Justice Doabia will not bring an open mind and objective judgment to bear on arguments made by the parties in the fourth arbitration, which may or may not differ from arguments made in the third arbitration.29. The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure, in that his disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the appellant to raise this point at this stage as it was never raised earlier. Obviously, if Justice Doabia did not indicate anything to the contrary, he would be able to devote sufficient time to the arbitration and complete the process within 12 months.30. It was also faintly urged that the arbitrator must without delay make a disclosure to the parties in writing. Justice Doabias disclosure was by a letter dated October 31, 2016 which was sent to the Secretary General of the International Centre for Alternative Dispute Resolution (ICADR). It has come on record that for no fault of Justice Doabia, the ICADR, through oversight, did not handover the said letter or a copy thereof to the appellant until November 24, 2016, which is stated in its letter dated November 29, 2016. This contention also, therefore, need not detain us.We are afraid that this argument again cannot be countenanced for the simple reason that Explanation 3 stands by itself and has to be applied as a relevant fact to be taken into account. It has no indirect bearing on any of the other items mentioned in the Seventh Schedule. | 0 | 11,925 | 1,699 | ### 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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insurer A has been successful in the first arbitration, insurer B may in practice learn of this success and the identity of the arbitrators who have upheld insurer As arguments. It follows from Locabail and AMEC Capital Projects Ltd v. Whitefriars City Estates Ltd [2005] 1 All ER 723 that an objection to the appointment of a member of a previous panel would not be sustained simply on the basis that the arbitrator had previously decided a particular issue in favour of one or other party. It equally follows that an arbitrator can properly be appointed at the outset in respect of a number of layers of coverage, even though he may then decide the dispute under one layer before hearing the case on another layer."26. We were, however, referred to Russell on Arbitration (23rd edition), in which the learned author has referred to the ground of bias in the context of previous views expressed by an arbitrator. In Chapter 4-124, the learned author states as follows:"In certain circumstances, previously expressed views of an arbitrator, which suggest a certain pre-disposition to a particular course of action, outcome or in favour of a party, can constitute grounds for removal. One of the Locabail v. Bayfield applications ([2000] 1 All E.R. 65 at 92-93) against a judge was successful on this basis. The judge had written four strongly worded articles which led the Court to conclude that an objective apprehension of bias may arise on the part of one of the parties. However, a challenge against a sole arbitrator in a trade arbitration which alleged apparent bias because the arbitrator had previously been involved in a dispute with one of the parties failed. The judge found this on the facts to be no more than "an ordinary incident of commercial life" occurring in the relatively small field of trade arbitrations where it was thought the parties and arbitrators were quite likely to have had prior dealing with each other (Rustal Trading Ltd. v. Gill and Duffas SA [2000] 1 Lloyds Rep. 14). Similarly, the fact that an insurance arbitrator had previously given a statement in another arbitration (and may have been called to give evidence subsequently) about the meaning of a standard form clause which might have had a tentative bearing on the present arbitration would not give grounds for removal (Argonaut Insurance Co v. Republic Insurance Co [2003] EWHC 547)."27. The judgment referred to in Russell is reported in Locabail v. Bayfield, (2000) 1 All E.R. 65. In paragraph 89 thereof, the Court of Appeal stated:"We have found this a difficult and anxious application to resolve. There is no suggestion of actual bias on the part of the recorder. Nor, quite rightly, is any imputation made as to his good faith. His voluntary disclosure of the matters already referred to show that he was conscious of his judicial duty. The views he expressed in the articles relied on are no doubt shared by other experienced commentators. We have, however, to ask, taking a broad commonsense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leant in favour of the claimant and against the defendant in resolving the factual issues between them. Not without misgiving, we conclude that there was on the facts here a real danger of such a result. We do not think a lay observer with knowledge of the facts could have excluded that possibility, and nor can we. We accordingly grant permission to appeal on this ground, allow the defendants appeal and order a retrial. We should not be thought to hold any view at all on the likely or proper outcome of any retrial."28. We have not been shown anything to indicate that Justice Doabia would be a person holding a pronounced anti-claimant view as in Locabail (supra). Therefore, we are satisfied that there is no real possibility that Justice Doabia will not bring an open mind and objective judgment to bear on arguments made by the parties in the fourth arbitration, which may or may not differ from arguments made in the third arbitration.29. The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure, in that his disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the appellant to raise this point at this stage as it was never raised earlier. Obviously, if Justice Doabia did not indicate anything to the contrary, he would be able to devote sufficient time to the arbitration and complete the process within 12 months.30. It was also faintly urged that the arbitrator must without delay make a disclosure to the parties in writing. Justice Doabias disclosure was by a letter dated October 31, 2016 which was sent to the Secretary General of the International Centre for Alternative Dispute Resolution (ICADR). It has come on record that for no fault of Justice Doabia, the ICADR, through oversight, did not handover the said letter or a copy thereof to the appellant until November 24, 2016, which is stated in its letter dated November 29, 2016. This contention also, therefore, need not detain us.31. It was then argued that under Explanation 3 to the Seventh Schedule, maritime or commodities arbitration may draw arbitrators from a small, specialized pool, in which case it is the custom and practice for parties to appoint the same arbitrator in different cases. This is in contrast to an arbitrator in other cases where he should not be appointed more than once. We are afraid that this argument again cannot be countenanced for the simple reason that Explanation 3 stands by itself and has to be applied as a relevant fact to be taken into account. It has no indirect bearing on any of the other items mentioned in the Seventh Schedule.
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no longer obtains. "Fundamental policy of Indian law" is now to be understood as laid down in Renusagar (supra). "Justice or morality" has been tightened and is now to be understood as meaning only basic notions of justice and morality i.e. such notions as would shock the conscience of the Court as understood in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49. Section 28(3) has also been amended to bring it in line with the judgment of this Court in Associate Builders (supra), making it clear that the construction of the terms of the contract is primarily for the arbitrator to decide unless it is found that such a construction is not a possible one.19. Thus, an award rendered in an international commercial arbitrationwhether in India or abroadis subject to the same tests qua setting aside under Section 34 or enforcement under Section 48, as the case may be. The only difference is that in an arbitral award governed by Part I, arising out of an arbitration other than an international commercial arbitration, one more ground of challenge is available viz. patent illegality appearing on the face of the award. The ground of patent illegality would not be established, if there is merely an erroneous application of the law or aof evidence.20. However, to accede to Shri Divans submission that because the grounds for challenge have been narrowed as aforesaid, we must construe the items in the Fifth and Seventh Schedules in the most expansive manner, so that the remotest likelihood of bias gets removed, is not an acceptable way of interpreting the Schedules. As has been pointed out by us hereinabove, the items contained in the Schedules owe their origin to the IBA Guidelines, which are to be construed in the light of the general principles contained thereinthat every arbitrator shall be impartial and independent of the parties at the time of accepting his/her appointment. Doubts as to the above are only justifiable if a reasonable third person having knowledge of the relevant facts and circumstances would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case in reaching his or her decision. This test requires taking a broadapproach to the items stated in the Fifth and Seventh Schedules. This approach would, therefore, require a fair construction of the words used therein, neither tending to enlarge or restrict them unduly. It is with these prefatory remarks that we proceed to deal with the arguments of both sides in construing the language of the Seventh Schedule.On reading the aforesaid guideline and reading the heading which appears with Item 16, namely "Relationship of the arbitrator to the dispute", it is obvious that the arbitrator has to have a previous involvement in the very dispute contained in the present arbitration. Admittedly, Justice Doabia has no such involvement. Further, Item 16 must be read along with Items 22 and 24 of the Fifth Schedule. The disqualification contained in Items 22 and 24 is not absolute, as an arbitrator who has, within the past three years, been appointed as arbitrator on two or more occasions by one of the parties or an affiliate, may yet not be disqualified on his showing that he was independent and impartial on the earlier two occasions. Also, if he currently serves or has served within the past three years as arbitrator in another arbitration on a related issue, he may be disqualified under Item 24, which must then be contrasted with Item 16. Item 16 cannot be read as including previous involvements in another arbitration on a related issue involving one of the parties as otherwise Item 24 will be rendered largely ineffective. It must not be forgotten that Item 16 also appears in the Fifth Schedule and has, therefore, to be harmoniously read with Item 24.The fact that Justice Doabia has already rendered an award in a previous arbitration between the parties would not, by itself, on the ground of reasonable likelihood of bias, render him ineligible to be an arbitrator in a subsequent arbitration.We have not been shown anything to indicate that Justice Doabia would be a person holding a pronouncedview as in Locabail (supra). Therefore, we are satisfied that there is no real possibility that Justice Doabia will not bring an open mind and objective judgment to bear on arguments made by the parties in the fourth arbitration, which may or may not differ from arguments made in the third arbitration.29. The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure, in that his disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the appellant to raise this point at this stage as it was never raised earlier. Obviously, if Justice Doabia did not indicate anything to the contrary, he would be able to devote sufficient time to the arbitration and complete the process within 12 months.30. It was also faintly urged that the arbitrator must without delay make a disclosure to the parties in writing. Justice Doabias disclosure was by a letter dated October 31, 2016 which was sent to the Secretary General of the International Centre for Alternative Dispute Resolution (ICADR). It has come on record that for no fault of Justice Doabia, the ICADR, through oversight, did not handover the said letter or a copy thereof to the appellant until November 24, 2016, which is stated in its letter dated November 29, 2016. This contention also, therefore, need not detain us.We are afraid that this argument again cannot be countenanced for the simple reason that Explanation 3 stands by itself and has to be applied as a relevant fact to be taken into account. It has no indirect bearing on any of the other items mentioned in the Seventh Schedule.
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Swami Om JI & Another Vs. Union of India Thr. Cabinet Secretary & Others | the Chief Justice of the Delhi High Court on 24.05.2010. He was eventually elevated as a Judge of the Supreme Court of India on 10.10.2011. The necessity to record the aforesaid factual position emerges from the fact, that despite the long tenure of the concerned incumbent, the petitioners have no allegations against him during his entire tenure commencing from 1996 till today.11. We shall now endeavour to deal with the contentions raised by the petitioners on merits. It was the submission of the petitioners, that the procedure adopted in appointing the next Chief Justice of India, was in clear violation of Articles 124(2), 124(3) and 124A of the Constitution of India.12. Insofar as the violation of Article 124(2) of the Constitution is concerned, it was submitted, that no recommendation for the appointment as Chief Justice of India can be made by the incumbent Chief Justice of India. It was submitted, that the recommendation by the incumbent Chief Justice of India by itself, was unacceptable in law. We will endeavour to deal with the instant contention, but before we do so, it is necessary to record, that the recommendation made by the incumbent Chief Justice of India, is not under challenge in the prayers made in the instant petition. Insofar as the instant contention is concerned, we are of the view, that the interpretation placed by the petitioners is wholly misconceived. Article 124(2) requires the President of India to consult the Judges of the Supreme Court and of the High Courts in the States "as the President may deem necessary for the purpose" for appointment of the Chief Justice of India. This Court through Constitution Benches has interpreted and declared the legal position, which requires the incumbent Chief Justice of India, to make an appropriate recommendation of the successor Chief Justice of India, to the President of India. The submission therefore is wholly misconceived.13. We enquired from petitioner No.1 whether he had consulted any counsel on the interpretation of Article 124(2) of the Constitution, before approaching this Court. He informed us, that he had consulted Mr.S.S.Tiwari, Advocate, who had informed him, that he would not be willing to appear for him to canvass the instant proposition. It was submitted, that he was advised, that the raising of such a proposition would result in extreme consequences. The pointed assertion made was that this Court could order the petitioners imprisonment. We thereafter enquired from the petitioner, whether he had examined the issue by reading any judgment of this Court with reference to the interpretation of Article 124(2). Petitioner No.1 informed us, that he believed in the Constitution. It was pointed out, that the petitioner accepted the Constitution as his religion. And therefore, it was asserted, that it was not necessary for him to read any judgment. Swami Om Ji, petitioner No.1, also told us, that he being a layman does not know any judgment. It surprises us, that laymen have the courage of approaching this Court against legal advice, as well as unmindful of consequences, of which they are made aware.14. Petitioner No.2 affirmed the position adopted by petitioner No.1, in response to our queries, when he was advancing submissions.15. The second contention advanced by the petitioners was based on Article 124(3) of the Constitution, which is extracted hereunder:"(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and-(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or(c) is, in the opinion of the President, a distinguished jurist.Explanation I: In this clause "High Court" means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.Explanation II: In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included."We find, that the above-mentioned provision has no applicability whatsoever, insofar as the present controversy is concerned, since Article 124(3) of the Constitution postulates the qualifications for appointment as a Judge of the Supreme Court. We therefore hereby reject the second contention as well. The instant contention also leaves no room for any doubt, that the petitioners have grossly abused the jurisdiction of this Court.16. The third contention of the petitioners is based on Article 124A of the Constitution. Petitioner No.2, who advanced the instant contention, was aware, that it was based on the Constitution (Ninety-ninth Amendment) Act, 2014. When enquired whether he was aware about the fact, that the aforesaid provision had since been set aside by this Court by a Constitution Bench, he claimed, that the Parliament had enacted Article 124A and no one had the authority to set it aside. The submission advanced by petitioner No.2, based on a provision, which has been declared ultra vires the provision of Constitution of India, is itself wholly misconceived and deserves to be rejected. Yet again, the contention discloses the sorry state of affairs, and the foolhardy attitude of the petitioners.17. It is also important for us to record, that the petitioners made wild insinuations against the Bench by informing the Bench, that they had been informed, that their petition would be dismissed, and they would be sent to jail, for at least a period of six months, for filing the instant petition. It is submitted, that such a position was indicated to the petitioners by members of the media. When asked, the petitioners said, that they could not individually identify those members of the media who had tendered the instant advice to them, because they had met them for the first time in the Court premises today. | 0[ds]9. During the course of hearing, we also enquired from the petitioners, whether they had any adverse reason against the person to be administered the oath of office as Chief Justice of India on 28.08.2017. We wanted to ascertain whether there was any reason which had compelled the petitioners to file this petition. The petitioners categorically answered in the negative. It is therefore apparent, that the instant petition is not based on any adverse material concerning the succeeding Chief Justice of India. Even a perusal of the pleadings in this case reveals, that no allegations whatsoever have been levelled against the succeeding incumbent. As a matter of fact, we were told, that the solitary grievance of the petitioners was, that the provisions of the Constitution of India had been violated, and that, was the reason that prompted the petitioners to approach this Court. And that was the reason, why the petitioners sought hearing, under all circumstances, before oath could beas the instant contention is concerned, we are of the view, that the interpretation placed by the petitioners is wholly misconceived.misconceived.13. We enquired from petitioner No.1 whether he had consulted any counsel on the interpretation of Article 124(2) of the Constitution, before approaching this Court. He informed us, that he had consulted Mr.S.S.Tiwari, Advocate, who had informed him, that he would not be willing to appear for him to canvass the instant proposition. It was submitted, that he was advised, that the raising of such a proposition would result in extreme consequences. The pointed assertion made was that this Court could order the petitioners imprisonment. We thereafter enquired from the petitioner, whether he had examined the issue by reading any judgment of this Court with reference to the interpretation of Article 124(2). Petitioner No.1 informed us, that he believed in the Constitution. It was pointed out, that the petitioner accepted the Constitution as his religion. And therefore, it was asserted, that it was not necessary for him to read any judgment. Swami Om Ji, petitioner No.1, also told us, that he being a layman does not know any judgment. It surprises us, that laymen have the courage of approaching this Court against legal advice, as well as unmindful of consequences, of which they are made aware.14. Petitioner No.2 affirmed the position adopted by petitioner No.1, in response to our queries, when he was advancingfind, that theprovision has no applicability whatsoever, insofar as the present controversy is concerned, since Article 124(3) of the Constitution postulates the qualifications for appointment as a Judge of the Supreme Court. We therefore hereby reject the second contention as well. The instant contention also leaves no room for any doubt, that the petitioners have grossly abused the jurisdiction of this Court.16. The third contention of the petitioners is based on Article 124A of the Constitution. Petitioner No.2, who advanced the instant contention, was aware, that it was based on the ConstitutionAmendment) Act, 2014. When enquired whether he was aware about the fact, that the aforesaid provision had since been set aside by this Court by a Constitution Bench, he claimed, that the Parliament had enacted Article 124A and no one had the authority to set it aside. The submission advanced by petitioner No.2, based on a provision, which has been declared ultra vires the provision of Constitution of India, is itself wholly misconceived and deserves to be rejected. Yet again, the contention discloses the sorry state of affairs, and the foolhardy attitude of the petitioners.17. It is also important for us to record, that the petitioners made wild insinuations against the Bench by informing the Bench, that they had been informed, that their petition would be dismissed, and they would be sent to jail, for at least a period of six months, for filing the instant petition. It is submitted, that such a position was indicated to the petitioners by members of the media. When asked, the petitioners said, that they could not individually identify those members of the media who had tendered the instant advice to them, because they had met them for the first time in the Court premises today. | 0 | 2,136 | 788 | ### Instruction:
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the Chief Justice of the Delhi High Court on 24.05.2010. He was eventually elevated as a Judge of the Supreme Court of India on 10.10.2011. The necessity to record the aforesaid factual position emerges from the fact, that despite the long tenure of the concerned incumbent, the petitioners have no allegations against him during his entire tenure commencing from 1996 till today.11. We shall now endeavour to deal with the contentions raised by the petitioners on merits. It was the submission of the petitioners, that the procedure adopted in appointing the next Chief Justice of India, was in clear violation of Articles 124(2), 124(3) and 124A of the Constitution of India.12. Insofar as the violation of Article 124(2) of the Constitution is concerned, it was submitted, that no recommendation for the appointment as Chief Justice of India can be made by the incumbent Chief Justice of India. It was submitted, that the recommendation by the incumbent Chief Justice of India by itself, was unacceptable in law. We will endeavour to deal with the instant contention, but before we do so, it is necessary to record, that the recommendation made by the incumbent Chief Justice of India, is not under challenge in the prayers made in the instant petition. Insofar as the instant contention is concerned, we are of the view, that the interpretation placed by the petitioners is wholly misconceived. Article 124(2) requires the President of India to consult the Judges of the Supreme Court and of the High Courts in the States "as the President may deem necessary for the purpose" for appointment of the Chief Justice of India. This Court through Constitution Benches has interpreted and declared the legal position, which requires the incumbent Chief Justice of India, to make an appropriate recommendation of the successor Chief Justice of India, to the President of India. The submission therefore is wholly misconceived.13. We enquired from petitioner No.1 whether he had consulted any counsel on the interpretation of Article 124(2) of the Constitution, before approaching this Court. He informed us, that he had consulted Mr.S.S.Tiwari, Advocate, who had informed him, that he would not be willing to appear for him to canvass the instant proposition. It was submitted, that he was advised, that the raising of such a proposition would result in extreme consequences. The pointed assertion made was that this Court could order the petitioners imprisonment. We thereafter enquired from the petitioner, whether he had examined the issue by reading any judgment of this Court with reference to the interpretation of Article 124(2). Petitioner No.1 informed us, that he believed in the Constitution. It was pointed out, that the petitioner accepted the Constitution as his religion. And therefore, it was asserted, that it was not necessary for him to read any judgment. Swami Om Ji, petitioner No.1, also told us, that he being a layman does not know any judgment. It surprises us, that laymen have the courage of approaching this Court against legal advice, as well as unmindful of consequences, of which they are made aware.14. Petitioner No.2 affirmed the position adopted by petitioner No.1, in response to our queries, when he was advancing submissions.15. The second contention advanced by the petitioners was based on Article 124(3) of the Constitution, which is extracted hereunder:"(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and-(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or(c) is, in the opinion of the President, a distinguished jurist.Explanation I: In this clause "High Court" means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.Explanation II: In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included."We find, that the above-mentioned provision has no applicability whatsoever, insofar as the present controversy is concerned, since Article 124(3) of the Constitution postulates the qualifications for appointment as a Judge of the Supreme Court. We therefore hereby reject the second contention as well. The instant contention also leaves no room for any doubt, that the petitioners have grossly abused the jurisdiction of this Court.16. The third contention of the petitioners is based on Article 124A of the Constitution. Petitioner No.2, who advanced the instant contention, was aware, that it was based on the Constitution (Ninety-ninth Amendment) Act, 2014. When enquired whether he was aware about the fact, that the aforesaid provision had since been set aside by this Court by a Constitution Bench, he claimed, that the Parliament had enacted Article 124A and no one had the authority to set it aside. The submission advanced by petitioner No.2, based on a provision, which has been declared ultra vires the provision of Constitution of India, is itself wholly misconceived and deserves to be rejected. Yet again, the contention discloses the sorry state of affairs, and the foolhardy attitude of the petitioners.17. It is also important for us to record, that the petitioners made wild insinuations against the Bench by informing the Bench, that they had been informed, that their petition would be dismissed, and they would be sent to jail, for at least a period of six months, for filing the instant petition. It is submitted, that such a position was indicated to the petitioners by members of the media. When asked, the petitioners said, that they could not individually identify those members of the media who had tendered the instant advice to them, because they had met them for the first time in the Court premises today.
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9. During the course of hearing, we also enquired from the petitioners, whether they had any adverse reason against the person to be administered the oath of office as Chief Justice of India on 28.08.2017. We wanted to ascertain whether there was any reason which had compelled the petitioners to file this petition. The petitioners categorically answered in the negative. It is therefore apparent, that the instant petition is not based on any adverse material concerning the succeeding Chief Justice of India. Even a perusal of the pleadings in this case reveals, that no allegations whatsoever have been levelled against the succeeding incumbent. As a matter of fact, we were told, that the solitary grievance of the petitioners was, that the provisions of the Constitution of India had been violated, and that, was the reason that prompted the petitioners to approach this Court. And that was the reason, why the petitioners sought hearing, under all circumstances, before oath could beas the instant contention is concerned, we are of the view, that the interpretation placed by the petitioners is wholly misconceived.misconceived.13. We enquired from petitioner No.1 whether he had consulted any counsel on the interpretation of Article 124(2) of the Constitution, before approaching this Court. He informed us, that he had consulted Mr.S.S.Tiwari, Advocate, who had informed him, that he would not be willing to appear for him to canvass the instant proposition. It was submitted, that he was advised, that the raising of such a proposition would result in extreme consequences. The pointed assertion made was that this Court could order the petitioners imprisonment. We thereafter enquired from the petitioner, whether he had examined the issue by reading any judgment of this Court with reference to the interpretation of Article 124(2). Petitioner No.1 informed us, that he believed in the Constitution. It was pointed out, that the petitioner accepted the Constitution as his religion. And therefore, it was asserted, that it was not necessary for him to read any judgment. Swami Om Ji, petitioner No.1, also told us, that he being a layman does not know any judgment. It surprises us, that laymen have the courage of approaching this Court against legal advice, as well as unmindful of consequences, of which they are made aware.14. Petitioner No.2 affirmed the position adopted by petitioner No.1, in response to our queries, when he was advancingfind, that theprovision has no applicability whatsoever, insofar as the present controversy is concerned, since Article 124(3) of the Constitution postulates the qualifications for appointment as a Judge of the Supreme Court. We therefore hereby reject the second contention as well. The instant contention also leaves no room for any doubt, that the petitioners have grossly abused the jurisdiction of this Court.16. The third contention of the petitioners is based on Article 124A of the Constitution. Petitioner No.2, who advanced the instant contention, was aware, that it was based on the ConstitutionAmendment) Act, 2014. When enquired whether he was aware about the fact, that the aforesaid provision had since been set aside by this Court by a Constitution Bench, he claimed, that the Parliament had enacted Article 124A and no one had the authority to set it aside. The submission advanced by petitioner No.2, based on a provision, which has been declared ultra vires the provision of Constitution of India, is itself wholly misconceived and deserves to be rejected. Yet again, the contention discloses the sorry state of affairs, and the foolhardy attitude of the petitioners.17. It is also important for us to record, that the petitioners made wild insinuations against the Bench by informing the Bench, that they had been informed, that their petition would be dismissed, and they would be sent to jail, for at least a period of six months, for filing the instant petition. It is submitted, that such a position was indicated to the petitioners by members of the media. When asked, the petitioners said, that they could not individually identify those members of the media who had tendered the instant advice to them, because they had met them for the first time in the Court premises today.
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Parisons Agrotech (P) Ltd. Vs. Union Of India | the Customs Act, 1962. The Foreign Trade Policy of 2004-2009, the relevant provisions which have already been extracted herein before at Para 5 may also be considered. This approach, according to him, would be in consonance with the ratio of the judgment of this Court in Union of India v. Asian Food Industries ((2006) 13 SCC 542 ): 25. Would the terms restriction and regulation used in Clause 1.5 of the Foreign Trade Policy include prohibition also, is one of the principal questions involved herein. 26. A citizen of India has a fundamental right to carry out the business of export, subject, of course to the reasonable restrictions which may be imposed by law. Such a reasonable restriction was imposed in terms of the 1992 Act. 27. The purport and object for which the 1992 Act was enacted was to make provision for the development and regulation of foreign trade inter alia by augmenting exports from India. While laying down a policy therefor, the Central Government, however, had been empowered to make provision for prohibiting, restricting or otherwise regulating export of goods. 28. Section 11 of the 1962 Act also provides for prohibition. When an order is issued under sub-section (3) of Section 3 of the 1992 Act, the export of goods would be deemed to be prohibited also under Section 11 of the 1962 Act and in relation thereto the provisions thereof shall also apply. 29. Indisputably, the power under Section 3 of the 1992 Act is required to be exercised in the manner provided for under Section 5 of the 1992 Act. The Central Government in exercise of the said power announced its Foreign Trade Policy for the years 2004-2009. It also exercised its power of amendment by issuing the Notification dated 27.06.2006. Export of all commodities which were not earlier prohibited, therefore, was permissible till the said date. xx xx xx 43. We are, however, not oblivious of the fact that in certain circumstances regulation may amount to prohibition. But, ordinarily the word regulate would mean to control or to adjust by rule or to subject to governing principles (See U.P. Cooperative Cane Unions Federations v. West U.P. Sugar Mills Association and Others, (2004) 5 SCC 430 , whereas the word prohibit would mean to forbid by authority or command. The expressions regulate and prohibit inhere in them elements of restriction but it varies in degree. The element of restriction is inherent both in regulative measures as well as in prohibitive or preventive measures. xx xx xx 46. The terms, however, indisputably would be construed having regard to the text and context in which they have been used. Section 3(2) of the 1992 Act uses prohibition, restriction and regulation. They are, thus, meant to be applied differently. Section 51 of the 1962 Act also speaks of prohibition. Thus, in terms of the 1992 Act as also the policy and the procedure laid down thereunder, the terms are required to be applied in different situations where for different orders have to be made or different provisions in the same order are required therefore. He also submitted that the above approach of this Court for harmonious construction finds support from the following ratio laid down by this Court in Bhatnagars & Co. Ltd. v. Union of India (1957 SCR 701 ): .......... In modern times, the export and import policy of any democratic State is bound to be flexible. The needs of the country, the position of foreign exchange, the need to protect national industries and all other relevant considerations have to be examined by the Central Government from time to time and rules in regard to export and import suitably adjusted. It would, therefore, be idle to suggest that there should be unfettered and unrestricted freedom of export and import or that the policy of the Government in regard to export and import should be fixed and not changed according to the requirements of the country. xx xx xx It was open to the Government, and indeed national interests made it their duty, to intervene and regulate the distribution of the commodity in a suitable manner. 27. According to us, we need not deal with these submissions elaborately as the aforesaid contention of the learned senior counsel for the appellants need to be discarded on altogether different reason. These arguments ignore the crucial words appearing in sub-section (2) of Section 3, namely, provision for prohibiting, restricting or otherwise regulating, the import or export of goods etc. can be made subject to such exceptions, if any, as may be made by or under the Order. These words are of wide amplitude giving necessary powers to make such exceptions as the Central Government deems fit while issuing the Notifications or the Order in prohibiting, restricting or regulating import or export of goods etc. In the process, it can restrict the import of particular goods through particular ports or disallow the import through specified ports (See: Asian Food Industries judgment, already extracted above). Of course, such an action cannot be arbitrary or irrational and should be backed sound reasons. 28. In the present case, as already held above, there is a sufficient public good sought to be achieved by laying down the exception banning the imports of crude palm oil through ports in Kerala. That, according to us, provides complete answer to the argument of the learned senior counsel for the appellants. Calcutta High Court in Kalindi Woolen Mills (P) Ltd. (supra) overlooked the aforesaid pertinent aspect which gives sufficient powers to the Central Government to act in the manner it has acted. The argument of Mr. Naphade predicated on the contrast between old and new provisions of Section 5 of the Act, again, would be of no avail in view of our aforesaid discussion holding that sub-section (2) of Section 3 of the Act gives ample power to the Government to issue such Notifications in exceptional cases and present case falls within those parameters. No other argument was addressed. 29. | 0[ds]Having regard to the importance of this crop not only for the economy of the State but also livelihood of about 35 lakhs farmers, the State Government has constituted Coconut Development Board (hereinafter referred to as the Board) which takes care of the interests of the farmers growing Coconut crop and also takes initiatives and steps for the development of this crop7. The significant and marked difference between the price of coconut oil and palm oil manifested the fact that percentage difference between the two stood at 109% in the year 2004, reduced to 50% in December, 2006, to 12% in September 2007 and 0.6% in October 2007. The Board also observed that the import of palm oil in one particular year had a cascading downward impact on coconut oil prices in the subsequent years. For example, the huge import of 1,53,513 tonnes of palm oil in5 had led to a price decline in coconut in6 and. While the average price of coconut oil is Rs.6,155/per quintal in, in, it declined sharply to Rs.4,978/per quintal with further fall in7 when the price was Rs.4,459/per quintal. This raised concern with the policy makers to protect the interest of huge number of small time farmers in the State of Kerala. Such concerns were raised by the Board as well as Union of Coconut Farmers with the concerned authorities including Chief Minister, who in turn, took up the matter with the Central Government at the highest level11. Having regard to the material that is produced and taken note of by us in extenso, which led to the issuance of the impugned Notifications, we are unable to countenance the submissions made by Mr. Naphade. It is well known that State of Kerala is the largest producer of Coconutand,in turn,there is substantial production of coconut oil as well. It is also a matter of common knowledge that coconut oil as well as palm oil are used for cooking and other common purposes. In that sense, coconut oil and palm oil are competing products. Whereas coconut oil produced from indigenous raw material and for the production of palm oil in India, the raw material i.e. crude palm oil is largely imported. Since the import price of crude palm oil has been much less than the price of coconut oil, the perception of Coconut growers in the State of Kerala was that it was affecting their livelihood. It is a matter of record that there are approximately 35 lakhs farmers in the State of Kerala who sustain their livelihood on Coconut crop. Therefore, it becomes their life sustaining crop. The Coconut crop covers more than 9 lakhs hectares in Kerala and contributes to nearly 35% of the agricultural income of the State which is a sufficient evidence to indicate that it is not only main but important crop of the State. The Coconut growers are predominantly small and marginal with the average size of holding being only half an acre. As already pointed out above, the significant and marked difference between the price of coconut oil and palm oil was manifest the fact that percentage difference between the two stood at 109% in the year 2004, reduced to 50% in December, 2006, to 12% in September 2007 and 0.6% in October 2007. The Board also observed that the import of palm oil in one particular year had a cascading downward impact on coconut oil prices in the subsequent years. For example, the huge import of 1,53,513 tonnes of palm oil in5 had led to a price decline in coconut in6 and. While the average price of coconut oil is Rs.6,155/per quintal in, in, it declined sharply to Rs.4,978/per quintal with further fall in7 when the price was Rs.4,459/per quintal. It is more than abundantly clear that the restriction is imposed keeping in view the welfare of 35 lakhs farmers in the State of Kerala. Matter was examined at the highest level. The Government had two alternatives before it, either to increase the custom duty i.e. duty on the import of crude oil or to issue impugned Notification. Enhancing the import duty would have all India ramification, whereas the problem was Kerala specific.Therefore,t step was taken. When a particular decision is taken in the interest of the said farmers which are marginalized section of the society, more so for their survival, this policy decision of the Central Government provides a complete rational in support of the decision having nexus with the objective sought to be achieved12. No doubt, the writ court has adequate power of judicial review in respect of such decisions. However, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. Once we find that parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review19. Insofar as judgment of Calcutta High Court in Kalindi Woolen Mills (P) Ltd. (supra) is concerned, we have our reservations on the correctness thereof wherein the High Court found that Notification dated 28.04.1989 allowing imports of Woolen rags, Synthetic rags, Shoddy wool through two ports only, namely, Bombay and Delhi ICD. In anycase,insofar asargument based on Article 14 is concerned, the said judgment is distinguishable as in that case the Court did not find any intelligible basis which was disclosed before the Court either in the affidavits filed by the Customs Authorities or in the Import Licensing Control Authorities of the Government of India. Likewise, no rational nexus for imposing the restrictions on importation of the subject goods only through Delhi ICD and Bombay ports disclosed. In the absence of such a justification, on the facts of thatcase,the Court found the Notification to be violative of Article 14 of the Constitution20. In, inthe presentcase,as already pointed out above, the respondents have been able to demonstrate intelligible basis for issuing the impugned Notifications having rational nexus with the objectives sought to be achieved. We, thus, reject the arguments based on Article 14 of the Constitution21. The argument of Mr. Naphade to the effect that interests of consumers is equally important which is not taken into consideration needs an outright rejection for more than one reason. In the first place no such case was made out by the appellants either in the High Court or even in the special leave petition filed in this Court. This argument was raised for the first time during oral hearing. There is, thus, no material produced on record to show how the impugned Notification would affect the interests of the consumers. An argument of this nature cannot be raised in the air without having solid foundation with relevant material. In anycase,as we have found that the Notifications were issued in the interests of farmer class in the State of Keralaand,therefore, they are in public interest, this argument is of no avail24. We may also point out that proviso ton (2) as well asn (4) were inserted by Act 25/2010 w.e.f. 27.08.2010. In anycase,we are primarily concerned with the interpretation ofs (1) and (2) of Section 3 as far as present case is concerned.n (1) empowers the Central Government to make provision for the development as well as regulation of foreign trade by facilitating imports and increasing exports. Thus, the Government is empowered to make provisioninsofar asthey relate to the development of foreign trade and it has also empowered to regulate the foreign trade. The two key words here are development and regulation. It is also important to note that such development and regulation is aimed at facilitating imports as well as increasing exports. First argument of Mr. Naphade was that regulatory provision has to be for facilitating imports whereas inthe presentcase,it was to curb the importsinsofar asports in Kerala are concerned.n (2) of Section 3 further empowers the Central Government to make provision for: (i) prohibiting; (ii) restricting; or (iii) otherwise regulating the import or export of goods or services or technology. It can be done in all cases or in specified classes of cases. The submission of Mr. Naphade was that such provisions prohibiting, restricting or otherwise regulating are to be made in respect of import or export of goods or services or technology which essentially were custom based. He referred to the definition of import and export contained in Section 2(e) of the Act, inrelation to goods, means bringing into, or taking out of, India any goods bysea or air. He, thus, submitted thatinsofar asimport of goods is concerned, it only meant bringing the said goods into India. That is by crossing the custom barrier, to bring the same in the territory of India.Therefore,27. According to us, we need not deal with these submissions elaborately as the aforesaid contention of the learned senior counsel for the appellants need to be discarded on altogether different reason. These arguments ignore the crucial words appearing inn (2) of Section 3, namely, provision for prohibiting, restricting or otherwise regulating, the import or export of goods etc. can be madet to such exceptions, if any, as may be made by or under the. These words are of wide amplitude giving necessary powers to make such exceptions as the Central Government deems fit while issuing the Notifications or the Order in prohibiting, restricting or regulating import or export of goods etc. In the process, it can restrict the import of particular goods through particular ports or disallow the import through specified ports28. Inthe presentcase,as already held above, there is a sufficient public good sought to be achieved by laying down the exception banning the imports of crude palm oil through ports in Kerala. That, according to us, provides complete answer to the argument of the learned senior counsel for the appellants. Calcutta High Court in Kalindi Woolen Mills (P) Ltd. (supra) overlooked the aforesaid pertinent aspect which gives sufficient powers to the Central Government to act in the manner it has acted. The argument of Mr. Naphade predicated on the contrast between old and new provisions of Section 5 of the Act, again, would be of no avail in view of our aforesaid discussion holding thatn (2) of Section 3 of the Act gives ample power to the Government to issue such Notifications in exceptional cases and present case falls within those parameters. No other argument was addressed. | 0 | 10,249 | 2,022 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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the Customs Act, 1962. The Foreign Trade Policy of 2004-2009, the relevant provisions which have already been extracted herein before at Para 5 may also be considered. This approach, according to him, would be in consonance with the ratio of the judgment of this Court in Union of India v. Asian Food Industries ((2006) 13 SCC 542 ): 25. Would the terms restriction and regulation used in Clause 1.5 of the Foreign Trade Policy include prohibition also, is one of the principal questions involved herein. 26. A citizen of India has a fundamental right to carry out the business of export, subject, of course to the reasonable restrictions which may be imposed by law. Such a reasonable restriction was imposed in terms of the 1992 Act. 27. The purport and object for which the 1992 Act was enacted was to make provision for the development and regulation of foreign trade inter alia by augmenting exports from India. While laying down a policy therefor, the Central Government, however, had been empowered to make provision for prohibiting, restricting or otherwise regulating export of goods. 28. Section 11 of the 1962 Act also provides for prohibition. When an order is issued under sub-section (3) of Section 3 of the 1992 Act, the export of goods would be deemed to be prohibited also under Section 11 of the 1962 Act and in relation thereto the provisions thereof shall also apply. 29. Indisputably, the power under Section 3 of the 1992 Act is required to be exercised in the manner provided for under Section 5 of the 1992 Act. The Central Government in exercise of the said power announced its Foreign Trade Policy for the years 2004-2009. It also exercised its power of amendment by issuing the Notification dated 27.06.2006. Export of all commodities which were not earlier prohibited, therefore, was permissible till the said date. xx xx xx 43. We are, however, not oblivious of the fact that in certain circumstances regulation may amount to prohibition. But, ordinarily the word regulate would mean to control or to adjust by rule or to subject to governing principles (See U.P. Cooperative Cane Unions Federations v. West U.P. Sugar Mills Association and Others, (2004) 5 SCC 430 , whereas the word prohibit would mean to forbid by authority or command. The expressions regulate and prohibit inhere in them elements of restriction but it varies in degree. The element of restriction is inherent both in regulative measures as well as in prohibitive or preventive measures. xx xx xx 46. The terms, however, indisputably would be construed having regard to the text and context in which they have been used. Section 3(2) of the 1992 Act uses prohibition, restriction and regulation. They are, thus, meant to be applied differently. Section 51 of the 1962 Act also speaks of prohibition. Thus, in terms of the 1992 Act as also the policy and the procedure laid down thereunder, the terms are required to be applied in different situations where for different orders have to be made or different provisions in the same order are required therefore. He also submitted that the above approach of this Court for harmonious construction finds support from the following ratio laid down by this Court in Bhatnagars & Co. Ltd. v. Union of India (1957 SCR 701 ): .......... In modern times, the export and import policy of any democratic State is bound to be flexible. The needs of the country, the position of foreign exchange, the need to protect national industries and all other relevant considerations have to be examined by the Central Government from time to time and rules in regard to export and import suitably adjusted. It would, therefore, be idle to suggest that there should be unfettered and unrestricted freedom of export and import or that the policy of the Government in regard to export and import should be fixed and not changed according to the requirements of the country. xx xx xx It was open to the Government, and indeed national interests made it their duty, to intervene and regulate the distribution of the commodity in a suitable manner. 27. According to us, we need not deal with these submissions elaborately as the aforesaid contention of the learned senior counsel for the appellants need to be discarded on altogether different reason. These arguments ignore the crucial words appearing in sub-section (2) of Section 3, namely, provision for prohibiting, restricting or otherwise regulating, the import or export of goods etc. can be made subject to such exceptions, if any, as may be made by or under the Order. These words are of wide amplitude giving necessary powers to make such exceptions as the Central Government deems fit while issuing the Notifications or the Order in prohibiting, restricting or regulating import or export of goods etc. In the process, it can restrict the import of particular goods through particular ports or disallow the import through specified ports (See: Asian Food Industries judgment, already extracted above). Of course, such an action cannot be arbitrary or irrational and should be backed sound reasons. 28. In the present case, as already held above, there is a sufficient public good sought to be achieved by laying down the exception banning the imports of crude palm oil through ports in Kerala. That, according to us, provides complete answer to the argument of the learned senior counsel for the appellants. Calcutta High Court in Kalindi Woolen Mills (P) Ltd. (supra) overlooked the aforesaid pertinent aspect which gives sufficient powers to the Central Government to act in the manner it has acted. The argument of Mr. Naphade predicated on the contrast between old and new provisions of Section 5 of the Act, again, would be of no avail in view of our aforesaid discussion holding that sub-section (2) of Section 3 of the Act gives ample power to the Government to issue such Notifications in exceptional cases and present case falls within those parameters. No other argument was addressed. 29.
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to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. Once we find that parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review19. Insofar as judgment of Calcutta High Court in Kalindi Woolen Mills (P) Ltd. (supra) is concerned, we have our reservations on the correctness thereof wherein the High Court found that Notification dated 28.04.1989 allowing imports of Woolen rags, Synthetic rags, Shoddy wool through two ports only, namely, Bombay and Delhi ICD. In anycase,insofar asargument based on Article 14 is concerned, the said judgment is distinguishable as in that case the Court did not find any intelligible basis which was disclosed before the Court either in the affidavits filed by the Customs Authorities or in the Import Licensing Control Authorities of the Government of India. Likewise, no rational nexus for imposing the restrictions on importation of the subject goods only through Delhi ICD and Bombay ports disclosed. In the absence of such a justification, on the facts of thatcase,the Court found the Notification to be violative of Article 14 of the Constitution20. In, inthe presentcase,as already pointed out above, the respondents have been able to demonstrate intelligible basis for issuing the impugned Notifications having rational nexus with the objectives sought to be achieved. We, thus, reject the arguments based on Article 14 of the Constitution21. The argument of Mr. Naphade to the effect that interests of consumers is equally important which is not taken into consideration needs an outright rejection for more than one reason. In the first place no such case was made out by the appellants either in the High Court or even in the special leave petition filed in this Court. This argument was raised for the first time during oral hearing. There is, thus, no material produced on record to show how the impugned Notification would affect the interests of the consumers. An argument of this nature cannot be raised in the air without having solid foundation with relevant material. In anycase,as we have found that the Notifications were issued in the interests of farmer class in the State of Keralaand,therefore, they are in public interest, this argument is of no avail24. We may also point out that proviso ton (2) as well asn (4) were inserted by Act 25/2010 w.e.f. 27.08.2010. In anycase,we are primarily concerned with the interpretation ofs (1) and (2) of Section 3 as far as present case is concerned.n (1) empowers the Central Government to make provision for the development as well as regulation of foreign trade by facilitating imports and increasing exports. Thus, the Government is empowered to make provisioninsofar asthey relate to the development of foreign trade and it has also empowered to regulate the foreign trade. The two key words here are development and regulation. It is also important to note that such development and regulation is aimed at facilitating imports as well as increasing exports. First argument of Mr. Naphade was that regulatory provision has to be for facilitating imports whereas inthe presentcase,it was to curb the importsinsofar asports in Kerala are concerned.n (2) of Section 3 further empowers the Central Government to make provision for: (i) prohibiting; (ii) restricting; or (iii) otherwise regulating the import or export of goods or services or technology. It can be done in all cases or in specified classes of cases. The submission of Mr. Naphade was that such provisions prohibiting, restricting or otherwise regulating are to be made in respect of import or export of goods or services or technology which essentially were custom based. He referred to the definition of import and export contained in Section 2(e) of the Act, inrelation to goods, means bringing into, or taking out of, India any goods bysea or air. He, thus, submitted thatinsofar asimport of goods is concerned, it only meant bringing the said goods into India. That is by crossing the custom barrier, to bring the same in the territory of India.Therefore,27. According to us, we need not deal with these submissions elaborately as the aforesaid contention of the learned senior counsel for the appellants need to be discarded on altogether different reason. These arguments ignore the crucial words appearing inn (2) of Section 3, namely, provision for prohibiting, restricting or otherwise regulating, the import or export of goods etc. can be madet to such exceptions, if any, as may be made by or under the. These words are of wide amplitude giving necessary powers to make such exceptions as the Central Government deems fit while issuing the Notifications or the Order in prohibiting, restricting or regulating import or export of goods etc. In the process, it can restrict the import of particular goods through particular ports or disallow the import through specified ports28. Inthe presentcase,as already held above, there is a sufficient public good sought to be achieved by laying down the exception banning the imports of crude palm oil through ports in Kerala. That, according to us, provides complete answer to the argument of the learned senior counsel for the appellants. Calcutta High Court in Kalindi Woolen Mills (P) Ltd. (supra) overlooked the aforesaid pertinent aspect which gives sufficient powers to the Central Government to act in the manner it has acted. The argument of Mr. Naphade predicated on the contrast between old and new provisions of Section 5 of the Act, again, would be of no avail in view of our aforesaid discussion holding thatn (2) of Section 3 of the Act gives ample power to the Government to issue such Notifications in exceptional cases and present case falls within those parameters. No other argument was addressed.
|
Konchada Ramamurthy Subudhi & Anr Vs. Gopinath Naik | a lease."If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. (See Associated Hotels of India Ltd. v. R. N. Kapur, 1960-1 SCR 368 at p. 384 = (AIR 1959 SC 1262 at p. 1269). 8. In 1960-1 SCR 368 at p. 384 = (AIR 1959 SC 1262 at p. 1269) Subba Rao, J., as he then was, summarised the propositions as follows:"The following propositions may, therefore, be taken as well-established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties-whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant but circumstances may be established which negative the intention to create a lease." 9. Lord Denning, speaking for the Judicial Committee of the Privy Council in Isack v. Hotel De Paris, 1960-1 All ER 348-352 observed:"There are many cases in the books where exclusive possession has been given of premises outside the Rent Restriction Act and yet there has been held to be no tenancy. Instances are Errington v. Errington and Woods, 1952-1 All ER 149 and Cobb v. Lane 1952-1 All ER 1199 which were referred to during the argument. It is true that in those two cases there was no payment or acceptance of rent, but even payment and acceptance of rent-though of great weight-is no decisive of a tenancy where it can be otherwise explained: see Clarke v. Grant, 1949-1 All ER 768. A Lord Greene, M. R., said in Booker v. Palmer, 1942-2 All ER 674-677. "There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationship where the circumstances and the conduct of the parties negative any intention of the kind."" 10. Keeping in mind the above observations, what was the intention of the parties ?. It seems to us that the fact that the decree holder had brought a suit for ejectment of the judgment debtor and that a compromise was entered into in that suit is important.It is difficult to impute to him an intention to create a fresh tenancy while the fact that he brought the suit shows that his intention was to eject the judgment debtor after having purported to terminate the tenancy. 11. Coming to the terms of the compromise, it is true, as stressed by the learned counsel for the respondent that the word "rent" has been used, but the word "rent" is not conclusive, for as observed by this Court in State of Punjab v. British India Corporation Ltd., 1964-2 SCR 114 at p. 123 = (AIR 1963 SC 1459 at p. 1463),"in its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him." 12. The learned counsel further stresses the point that Rs. 300 were paid as deposit for six months rent "to be adjusted towards rent for the period of last six months ending with 1st July 1960",but it seems to us that that amount was really paid as a security for the amounts due under the compromise deed as it was only to be adjusted against the rent for the last six months. But what is very significant is Clause (d) which enables the decree holder to execute the decree if the judgment debtor fails to pay rent for any three consecutive months. This it seems to us shows that the intention of the parties was not to enter into the relationship of a landlord and tenant.We may mention that the importance of this fact was adverted to in Sumatibai Waman Kirlikar v. A. B. Shirgaonkar, AIR 1949 Bom 402-404 where Chagla, C. J., observed:"On the failure of the defendant to pay any of the amount which is fixed as rent on its due date, the only right the decree gave to the judgment-creditor was to have it executed for the amount which remained due it did not entitle the judgment-creditor to take possession of the land on default of payment of rent." 13. The High Court stressed the fact that a long period of five years was granted to the judgment debtor for continuation of the possession. In our view, the length of the period, in the circumstances, does not militate against the construction that the compromise only created a licence for the decree holder apparently had lost in the trial court and it was only in the court of appeal that this compromise was arrived at. 14. For the aforesaid reasons we hold that the compromise deed did not create a lease. Therefore the judgment-debtor is not a tenant within Section 2 (5) of the Act which defines "tenant" to mean "any person by whom or on whose behalf rent is payable for any house and includes every person who, from time to time, derives title under a tenant, or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of this Act, and shall include any person against whom a suit for ejectment is pending in a Court of competent jurisdiction but not a person against whom a decree or order for eviction has been made by such a Court." | 1[ds]11. Coming to the terms of the compromise, it is true, as stressed by the learned counsel for the respondent that the word "rent" has been used, but the word "rent" is not conclusivefor as observed by this Court in State of Punjab v. British India Corporation Ltd., 1964-2 SCR 114 at p. 123 = (AIR 1963 SC 1459 at p.n its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him."it seems to us that that amount was really paid as a security for the amounts due under the compromise deed as it was only to be adjusted against the rent for the last six months. But what is very significant is Clause (d) which enables the decree holder to execute the decree if the judgment debtor fails to pay rent for any three consecutive months. This it seems to us shows that the intention of the parties was not to enter into the relationship of a landlord and tenant13. The High Court stressed the fact that a long period of five years was granted to the judgment debtor for continuation of the possession. In our view, the length of the period, in the circumstances, does not militate against the construction that the compromise only created a licence for the decree holder apparently had lost in the trial court and it was only in the court of appeal that this compromise was arrived at14. For the aforesaid reasons we hold that the compromise deed did not create a lease. Therefore the judgment-debtor is not a tenant within Section 2 (5) of the Act which defines "tenant" to mean "any person by whom or on whose behalf rent is payable for any house and includes every person who, from time to time, derives title under a tenant, or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of this Act, and shall include any person against whom a suit for ejectment is pending in a Court of competent jurisdiction but not a person against whom a decree or order for eviction has been made by such a Court."10. Keeping in mind the above observations, what was the intention of the parties ?It seems to us that the fact that the decree holder had brought a suit for ejectment of the judgment debtor and that a compromise was entered into in that suit is important.It is difficult to impute to him an intention to create a fresh tenancy while the fact that he brought the suit shows that his intention was to eject the judgment debtor after having purported to terminate the tenancy11. Coming to the terms of the compromise, it is true, as stressed by the learned counsel for the respondent that the word "rent" has been used, but the word "rent" is notfor as observed by this Court in State of Punjab v. British India Corporation Ltd.,2 SCR 114 at p. 123 = (AIR 1963 SC 1459 at p.n its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him."12. The learned counsel further stresses the point that Rs. 300 were paid as deposit for six months rent "to be adjusted towards rent for the period of last six months ending with 1st Julyit seems to us that that amount was really paid as a security for the amounts due under the compromise deed as it was only to be adjusted against the rent for the last six months. But what is very significant is Clause (d) which enables the decree holder to execute the decree if the judgment debtor fails to pay rent for any three consecutive months. This it seems to us shows that the intention of the parties was not to enter into the relationship of a landlord ande may mention that the importance of this fact was adverted to in Sumatibai Waman Kirlikar v. A. B. Shirgaonkar, AIR 1949 Bom | 1 | 2,081 | 798 | ### 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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a lease."If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. (See Associated Hotels of India Ltd. v. R. N. Kapur, 1960-1 SCR 368 at p. 384 = (AIR 1959 SC 1262 at p. 1269). 8. In 1960-1 SCR 368 at p. 384 = (AIR 1959 SC 1262 at p. 1269) Subba Rao, J., as he then was, summarised the propositions as follows:"The following propositions may, therefore, be taken as well-established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties-whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant but circumstances may be established which negative the intention to create a lease." 9. Lord Denning, speaking for the Judicial Committee of the Privy Council in Isack v. Hotel De Paris, 1960-1 All ER 348-352 observed:"There are many cases in the books where exclusive possession has been given of premises outside the Rent Restriction Act and yet there has been held to be no tenancy. Instances are Errington v. Errington and Woods, 1952-1 All ER 149 and Cobb v. Lane 1952-1 All ER 1199 which were referred to during the argument. It is true that in those two cases there was no payment or acceptance of rent, but even payment and acceptance of rent-though of great weight-is no decisive of a tenancy where it can be otherwise explained: see Clarke v. Grant, 1949-1 All ER 768. A Lord Greene, M. R., said in Booker v. Palmer, 1942-2 All ER 674-677. "There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationship where the circumstances and the conduct of the parties negative any intention of the kind."" 10. Keeping in mind the above observations, what was the intention of the parties ?. It seems to us that the fact that the decree holder had brought a suit for ejectment of the judgment debtor and that a compromise was entered into in that suit is important.It is difficult to impute to him an intention to create a fresh tenancy while the fact that he brought the suit shows that his intention was to eject the judgment debtor after having purported to terminate the tenancy. 11. Coming to the terms of the compromise, it is true, as stressed by the learned counsel for the respondent that the word "rent" has been used, but the word "rent" is not conclusive, for as observed by this Court in State of Punjab v. British India Corporation Ltd., 1964-2 SCR 114 at p. 123 = (AIR 1963 SC 1459 at p. 1463),"in its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him." 12. The learned counsel further stresses the point that Rs. 300 were paid as deposit for six months rent "to be adjusted towards rent for the period of last six months ending with 1st July 1960",but it seems to us that that amount was really paid as a security for the amounts due under the compromise deed as it was only to be adjusted against the rent for the last six months. But what is very significant is Clause (d) which enables the decree holder to execute the decree if the judgment debtor fails to pay rent for any three consecutive months. This it seems to us shows that the intention of the parties was not to enter into the relationship of a landlord and tenant.We may mention that the importance of this fact was adverted to in Sumatibai Waman Kirlikar v. A. B. Shirgaonkar, AIR 1949 Bom 402-404 where Chagla, C. J., observed:"On the failure of the defendant to pay any of the amount which is fixed as rent on its due date, the only right the decree gave to the judgment-creditor was to have it executed for the amount which remained due it did not entitle the judgment-creditor to take possession of the land on default of payment of rent." 13. The High Court stressed the fact that a long period of five years was granted to the judgment debtor for continuation of the possession. In our view, the length of the period, in the circumstances, does not militate against the construction that the compromise only created a licence for the decree holder apparently had lost in the trial court and it was only in the court of appeal that this compromise was arrived at. 14. For the aforesaid reasons we hold that the compromise deed did not create a lease. Therefore the judgment-debtor is not a tenant within Section 2 (5) of the Act which defines "tenant" to mean "any person by whom or on whose behalf rent is payable for any house and includes every person who, from time to time, derives title under a tenant, or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of this Act, and shall include any person against whom a suit for ejectment is pending in a Court of competent jurisdiction but not a person against whom a decree or order for eviction has been made by such a Court."
### Response:
1
### Explanation:
11. Coming to the terms of the compromise, it is true, as stressed by the learned counsel for the respondent that the word "rent" has been used, but the word "rent" is not conclusivefor as observed by this Court in State of Punjab v. British India Corporation Ltd., 1964-2 SCR 114 at p. 123 = (AIR 1963 SC 1459 at p.n its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him."it seems to us that that amount was really paid as a security for the amounts due under the compromise deed as it was only to be adjusted against the rent for the last six months. But what is very significant is Clause (d) which enables the decree holder to execute the decree if the judgment debtor fails to pay rent for any three consecutive months. This it seems to us shows that the intention of the parties was not to enter into the relationship of a landlord and tenant13. The High Court stressed the fact that a long period of five years was granted to the judgment debtor for continuation of the possession. In our view, the length of the period, in the circumstances, does not militate against the construction that the compromise only created a licence for the decree holder apparently had lost in the trial court and it was only in the court of appeal that this compromise was arrived at14. For the aforesaid reasons we hold that the compromise deed did not create a lease. Therefore the judgment-debtor is not a tenant within Section 2 (5) of the Act which defines "tenant" to mean "any person by whom or on whose behalf rent is payable for any house and includes every person who, from time to time, derives title under a tenant, or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of this Act, and shall include any person against whom a suit for ejectment is pending in a Court of competent jurisdiction but not a person against whom a decree or order for eviction has been made by such a Court."10. Keeping in mind the above observations, what was the intention of the parties ?It seems to us that the fact that the decree holder had brought a suit for ejectment of the judgment debtor and that a compromise was entered into in that suit is important.It is difficult to impute to him an intention to create a fresh tenancy while the fact that he brought the suit shows that his intention was to eject the judgment debtor after having purported to terminate the tenancy11. Coming to the terms of the compromise, it is true, as stressed by the learned counsel for the respondent that the word "rent" has been used, but the word "rent" is notfor as observed by this Court in State of Punjab v. British India Corporation Ltd.,2 SCR 114 at p. 123 = (AIR 1963 SC 1459 at p.n its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him."12. The learned counsel further stresses the point that Rs. 300 were paid as deposit for six months rent "to be adjusted towards rent for the period of last six months ending with 1st Julyit seems to us that that amount was really paid as a security for the amounts due under the compromise deed as it was only to be adjusted against the rent for the last six months. But what is very significant is Clause (d) which enables the decree holder to execute the decree if the judgment debtor fails to pay rent for any three consecutive months. This it seems to us shows that the intention of the parties was not to enter into the relationship of a landlord ande may mention that the importance of this fact was adverted to in Sumatibai Waman Kirlikar v. A. B. Shirgaonkar, AIR 1949 Bom
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John Donald Mackenzie & Another Vs. The Chief Inspector of Factories, Bihar, Ranchi & Others | Bihar. The petitioner No. 2 is the Bata Shoe Co., Private Ltd. Calcutta. The Chief Inspector of Factories. Ranchi, called upon the occupier of the Bata Shoe Cos factory at Digha by letter deated September 6, 1956, to renew the factorys license for the year 1957 by making an appropriate application within 60 days of the expiry of the licesce for the previous year ending on December 31, 1956, and drew his attention to r. 7 of the Bihar Factories Rules, 1950. At the end of that letter he added the following note:"Note. There have been a lot of mistakes found in last years in the application for renewal and in the notice of occupation which created a lot of difficulties in renewing the licence by this office. Please be careful while filling up these informations. . . . . . . . . . . . . . . . . . ."On receipt of this letter an application for the renewal of the licence was sent to the Chief Inspector of Factories. This application was signed by the first petitioner Mackenzie. Upon receiving this application the Chief Inspector addressed a letter dated November 20, 1956, in which he stated that Mackenzie appears to be only the manager of the factory and pointed out that the application as well as the notice of occupation are required to be signed by the occupier. He drew the attention of the Factory to S. 2(n) and S. 100 of the Factories Act, 1948, and observed:"In Section 100 the criterion for determining as to who was the occupier of a factory has been very clearly specified and in my opinion there should be no difficulty in understanding the same.In case there is any managing agency of the factory, the managing agents would be treated to be the occupier which means the directors of the firm of the managing agents. Also as provided in sub-section (2) of section 100 in case of a company the directors or the shareholders are to be treated as the occupiers."He then enquired from the factory whether Mackenzie was one of the directors of the company and said that if he was not a director should be submitted within 15 days of the receipt of the letter. One in 15 days of the receipt of the letter. One Chatterji who described himself as Chief Secretary of the Bata Shoe Co., sent a reply to the Chief Inspector of Factories on November 22, 1956, in which he pointed out that "occupier" is not equivalent to owner but means only a person who has control over the affairs of the factory. He also observed :"We have factories at various places and our Digha Branch Factory is in charge of Mr J. D. Mackenzie who is the person having ultimate control of the affairs of the factory. Mr. Mackenzie is therefore in our submission, the occupier within the meaning thereof as defined by section 2(n)".He called upon the Chief Inspector, therefore, to renew the licence. The Chief Inspector, in his reply dated December 20, 1956, stuck to the interpretation of the relevant provisions of the law placed by him in his earlier communication and again called upon the factory to submit an appropriate application for renewal of the licence of the factory. Treating this as an order of the Chief Inspector of Factories the petitioners moved the High Court at Patna for quashing it. Various contentions were raised before the High Court on behalf of the petitioners but they were rejected. They have, therefore, come up to this Court in appeal.3. The only point pressed before us on behalf of the petitioners is that the petitioner No. 1 Mackenzie had the ultimate control over the affairs of the factory and, therefore, he must be regarded as the occupier as defined in S. 2(n) of the factories Act. That section defines "occupier" thus :" occupier of a factory means the person who has ultimate control over the affairs of the factory, and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupied of the factory."Undoubtedly, the expression "occupier" is not to be equated with "owner. But it must be borne in mind that the ultimate control over a factory must necessarily be with an owner unless the owner has completely transferred that control to another person. Whether that was done in the present case would be a question of fact. It was for the petitioners who contended that petitioner No. 1 was the manager of the factory and had the ultimate control thereof, to lay before the Chief Inspector of Factories the necessary material for showing that the company had in some manner transferred the entire control over the factory to the petitioner No. 1.They did nothing of the kind. We have been taken through the correspondence which passed between the petitioners and the Chief Inspector of Factories but it does not appear therefrom that any document was executed by the company or any resolution was passed by it vesting the ultimate control in the petitioner No. 1. Two specific queries were put by the Chief Inspector in his letter dated November 20, 1956, one was whether any managing agents had been appointed for the factory and the other was whether Mackenzie was one of the directors. No reply was given to either of these queries by Chatterji in his letter dated November 22, 1956, which purported to be a reply to the Chief Inspectors enter of Nov. 20, 1956.In the circumstances, therefore, the Chief Inspector of Factories was perfectly right in refusing to act on the application signed by Mackenzie and in requiring the factory to file a proper application for renewal of the licence.4. Even when the matter went up before the High Court no attempt was made to show that the ultimate control of the factory was transferred to Niackenzie either by execution of a document or by passing a resolution. | 0[ds]Undoubtedly, the expression "occupier" is not to be equated with "owner. But it must be borne in mind that the ultimate control over a factory must necessarily be with an owner unless the owner has completely transferred that control to another person. Whether that was done in the present case would be a question of fact. It was for the petitioners who contended that petitioner No. 1 was the manager of the factory and had the ultimate control thereof, to lay before the Chief Inspector of Factories the necessary material for showing that the company had in some manner transferred the entire control over the factory to the petitioner No. 1.They did nothing of the kind. We have been taken through the correspondence which passed between the petitioners and the Chief Inspector of Factories but it does not appear therefrom that any document was executed by the company or any resolution was passed by it vesting the ultimate control in the petitioner No. 1. Two specific queries were put by the Chief Inspector in his letter dated November 20, 1956, one was whether any managing agents had been appointed for the factory and the other was whether Mackenzie was one of the directors. No reply was given to either of these queries by Chatterji in his letter dated November 22, 1956, which purported to be a reply to the Chief Inspectors enter of Nov. 20, 1956.In the circumstances, therefore, the Chief Inspector of Factories was perfectly right in refusing to act on the application signed by Mackenzie and in requiring the factory to file a proper application for renewal of the licence.4. Even when the matter went up before the High Court no attempt was made to show that the ultimate control of the factory was transferred to Niackenzie either by execution of a document or by passing a resolution. | 0 | 1,158 | 337 | ### 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:
Bihar. The petitioner No. 2 is the Bata Shoe Co., Private Ltd. Calcutta. The Chief Inspector of Factories. Ranchi, called upon the occupier of the Bata Shoe Cos factory at Digha by letter deated September 6, 1956, to renew the factorys license for the year 1957 by making an appropriate application within 60 days of the expiry of the licesce for the previous year ending on December 31, 1956, and drew his attention to r. 7 of the Bihar Factories Rules, 1950. At the end of that letter he added the following note:"Note. There have been a lot of mistakes found in last years in the application for renewal and in the notice of occupation which created a lot of difficulties in renewing the licence by this office. Please be careful while filling up these informations. . . . . . . . . . . . . . . . . . ."On receipt of this letter an application for the renewal of the licence was sent to the Chief Inspector of Factories. This application was signed by the first petitioner Mackenzie. Upon receiving this application the Chief Inspector addressed a letter dated November 20, 1956, in which he stated that Mackenzie appears to be only the manager of the factory and pointed out that the application as well as the notice of occupation are required to be signed by the occupier. He drew the attention of the Factory to S. 2(n) and S. 100 of the Factories Act, 1948, and observed:"In Section 100 the criterion for determining as to who was the occupier of a factory has been very clearly specified and in my opinion there should be no difficulty in understanding the same.In case there is any managing agency of the factory, the managing agents would be treated to be the occupier which means the directors of the firm of the managing agents. Also as provided in sub-section (2) of section 100 in case of a company the directors or the shareholders are to be treated as the occupiers."He then enquired from the factory whether Mackenzie was one of the directors of the company and said that if he was not a director should be submitted within 15 days of the receipt of the letter. One in 15 days of the receipt of the letter. One Chatterji who described himself as Chief Secretary of the Bata Shoe Co., sent a reply to the Chief Inspector of Factories on November 22, 1956, in which he pointed out that "occupier" is not equivalent to owner but means only a person who has control over the affairs of the factory. He also observed :"We have factories at various places and our Digha Branch Factory is in charge of Mr J. D. Mackenzie who is the person having ultimate control of the affairs of the factory. Mr. Mackenzie is therefore in our submission, the occupier within the meaning thereof as defined by section 2(n)".He called upon the Chief Inspector, therefore, to renew the licence. The Chief Inspector, in his reply dated December 20, 1956, stuck to the interpretation of the relevant provisions of the law placed by him in his earlier communication and again called upon the factory to submit an appropriate application for renewal of the licence of the factory. Treating this as an order of the Chief Inspector of Factories the petitioners moved the High Court at Patna for quashing it. Various contentions were raised before the High Court on behalf of the petitioners but they were rejected. They have, therefore, come up to this Court in appeal.3. The only point pressed before us on behalf of the petitioners is that the petitioner No. 1 Mackenzie had the ultimate control over the affairs of the factory and, therefore, he must be regarded as the occupier as defined in S. 2(n) of the factories Act. That section defines "occupier" thus :" occupier of a factory means the person who has ultimate control over the affairs of the factory, and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupied of the factory."Undoubtedly, the expression "occupier" is not to be equated with "owner. But it must be borne in mind that the ultimate control over a factory must necessarily be with an owner unless the owner has completely transferred that control to another person. Whether that was done in the present case would be a question of fact. It was for the petitioners who contended that petitioner No. 1 was the manager of the factory and had the ultimate control thereof, to lay before the Chief Inspector of Factories the necessary material for showing that the company had in some manner transferred the entire control over the factory to the petitioner No. 1.They did nothing of the kind. We have been taken through the correspondence which passed between the petitioners and the Chief Inspector of Factories but it does not appear therefrom that any document was executed by the company or any resolution was passed by it vesting the ultimate control in the petitioner No. 1. Two specific queries were put by the Chief Inspector in his letter dated November 20, 1956, one was whether any managing agents had been appointed for the factory and the other was whether Mackenzie was one of the directors. No reply was given to either of these queries by Chatterji in his letter dated November 22, 1956, which purported to be a reply to the Chief Inspectors enter of Nov. 20, 1956.In the circumstances, therefore, the Chief Inspector of Factories was perfectly right in refusing to act on the application signed by Mackenzie and in requiring the factory to file a proper application for renewal of the licence.4. Even when the matter went up before the High Court no attempt was made to show that the ultimate control of the factory was transferred to Niackenzie either by execution of a document or by passing a resolution.
### Response:
0
### Explanation:
Undoubtedly, the expression "occupier" is not to be equated with "owner. But it must be borne in mind that the ultimate control over a factory must necessarily be with an owner unless the owner has completely transferred that control to another person. Whether that was done in the present case would be a question of fact. It was for the petitioners who contended that petitioner No. 1 was the manager of the factory and had the ultimate control thereof, to lay before the Chief Inspector of Factories the necessary material for showing that the company had in some manner transferred the entire control over the factory to the petitioner No. 1.They did nothing of the kind. We have been taken through the correspondence which passed between the petitioners and the Chief Inspector of Factories but it does not appear therefrom that any document was executed by the company or any resolution was passed by it vesting the ultimate control in the petitioner No. 1. Two specific queries were put by the Chief Inspector in his letter dated November 20, 1956, one was whether any managing agents had been appointed for the factory and the other was whether Mackenzie was one of the directors. No reply was given to either of these queries by Chatterji in his letter dated November 22, 1956, which purported to be a reply to the Chief Inspectors enter of Nov. 20, 1956.In the circumstances, therefore, the Chief Inspector of Factories was perfectly right in refusing to act on the application signed by Mackenzie and in requiring the factory to file a proper application for renewal of the licence.4. Even when the matter went up before the High Court no attempt was made to show that the ultimate control of the factory was transferred to Niackenzie either by execution of a document or by passing a resolution.
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Mukand Ltd Vs. Mukand Staff & Officers' Association | given by the appellant-Company before us ensuring that the total wage packets of the non-workmen to whom the award further modified as above will not be applicable, are not lower than the total wage packets available to the workmen under the said award. 96. The appellant-Management has a prima facie case on merits and the balance of convenience is entirely in their favour. We also hold that the employer and the employees by their conduct is concluding settlements in the past cannot create or confer upon an adjudicating authority jurisdiction where none existed in respect of employees to whom the provisions of the Act are not applicable. In the instant case, the employer had admittedly not waived their right to issue the status of the employees under the Act in any of the said settlements. The High Court, both the learned single Judge and of the Division Bench had stepped into the shoes of the adjudicating authority and virtually modified/altered the award in vital respects like basic linked variable D.A., D.A. fixed in forms of percentages of basic pay, service increments, gratuity and effective dates for increase in emoluments. 97. The Industrial Tribunal did not have jurisdiction to adjudicate the present dispute inasmuch as it pertains to the conditions of service of non-workmen. The learned single Judge and the Division Bench of the High Court failed to appreciate that parties cannot be their conduct create or confer jurisdiction on an adjudicating authority when no such jurisdiction exists. We have already noticed that the Division Bench has erred in holding that there is community of interest between the workmen and the non-workmen and holding further that the workmen could raise a dispute regarding the service conditions of non-workmen. 98. The High Court further failed to appreciate that in order to secure revision of their own grades or other items of emoluments, it was not necessary for employees who are workmen under the Act to agitate also for the revision of the emoluments of those who are not workmen, and that as such the workmen in the present, have no direct or substantial interest in the revision of emoluments of employees who are not workmen, nor could the workmen be held to be vitally interested in the terms of employment of the non-workmen. 99. The High Court also failed to appreciate that workmen as well as non-workmen being in the same grade did not imply that the distinction between the two categories ceased to exist, or that they belonged to the same class. 100. The Division Bench has further erred in relying on the various settlements concluded between the parties in the past regarding the service conditions of the employees including the settlement of 1974 relating to welfare scheme. Both the Division Bench and the learned single Judge failed to appreciate that none of the said settlements contained any provision, or even a whisper thereof, of any waiver by the appellant-Company of its rights with regard to the status of the employees under the Act. 101. During the pendency of the proceedings in this Court, supplementary affidavit was filed by the Vice President, Finance of the appellant-Company bringing to this Courts notice certain crucial events that have occurred subsequent to the admission of the appeal, which have a vital bearing on the case. It is stated therein that the appellant-Company is in dire financial straits. The Company has already placed on record financial difficulties which it has been encountering. The present affidavit was placed on record with the updated situation as at present. The Company has suffered a loss before tax of about Rs. 210 crores in the financial year 2002-03 which was reduced to Rs. 157 crores after considering waivers and reduction in interest rate aggregating to Rs. 53 crores on the basis of concessions given by the banks and financial institutions under a restructuring package. The loss as stated above follows a loss before tax of Rs. 111 crores in the previous financial year i.e. year 2001-02 and that the losses as above are without taking into account the arrears payable to the employees amounting to Rs. 15.45 crores. The appellant being suffered a further loss before tax at Rs. 40 crores in the first quarter of the current year i.e. year 2003-04 as per the unaudited financial results and the accumulated loss is Rs. 269 crores as on 30.06.2003 leaving a net worth of Rs. 28 crores. Along with the affidavit annexures were filed for the year ended 31.03.2003. According to the learned senior counsel, the Company has now become a potentially sick industrial Company as defined by The Sick Industrial Companies (Special Provisions) Act, 1985 since there has been an erosion of more than 50% in the Companys peak net worth in the four preceding years on the basis of the audited financial results for the financial year 2002-03. The Appellant Company is required under the provisions of Section 23 of the said Act to report the fact of such erosion to the Board for Industrial and Financial Reconstruction within sixty days from the date of finalisation of the duly audited accounts of the Company for the financial year 2002-03 and also to take further actions specified in the said provisions. The appellant-Company is now in the process of submitting the necessary report to the Board for Industrial and Financial Reconstruction as required under the said Act. 102. On account of adverse market conditions and unviability of the business, the appellant-Company was complied to close down permanently its Machine Tools Division at Ballabgarh in Haryana with effect from 18.12.2002. 103. Several other details in regard to the sickness of the company has also been furnished. Since we are remitting the matter to the Industrial Tribunal, it is for the appellant-Company to place the additional materials before the said Tribunal for its adjudication. During the pendency of the proceedings before the High Court and of this Court, certain directions were given in regard to the disbursement of certain amounts. | 1[ds]The Reference is limited to the dispute between the Appellant-Company and the workmen employed by them. 23. We have already referred to the order of Reference dated 17.2.1993 in paragraph supra. The dispute referred to by the order of Reference is only in respect of workmen employed by the appellant-Company. It is, therefore, clear that the Tribunal being a creature of the Reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference. In the facts and circumstances of the present case, the Tribunal could not have adjudicated the issues of the salaries of the employees who are not workmen under the Act nor could it have covered such employees by its award. Even assuming, without admitting, that the Reference covered the non-workmen, the Tribunal, acting within its jurisdiction under the Act, could not have adjudicated the dispute insofar as it related to the non-workmen. 24. It was submitted by the learned counsel appearing for the respondent that under the Act, the dispute can be raised only by the workmen with the employer and that the workmen, however, can, in appropriate case, espouse the cause of non-workmen because under the definition of industrial disputes under clause (k) of Section 2 of the said Act, the dispute may not only be related to workmen but to any person including non-workmen, provided, however, that there is community of interest between the workmen and the non-workmen.findings of the Court below that there is community of interest between the workmen and the non-workmen is based on misconstruing of evidence and disregarding of vital facts. 58. In this regard, learned senior counsel for the appellant brought to our notice the evidence of Mr. Krishnan Nair that the employees are interested in promotions because of financial benefits, a universal fact, has been misconstrued by the Courts below as proof of community of interest between the workmen and the non-workmen. The evidence of Mr. Krishnan Nair reads as follows:- "57. It is true that the employees are promoted from the lower grade to upper grade as the case may be, on merits. It is true that once a workman is not always a workman. On promotion he comes out of that category. I agree that wages scales of different grades of M.R.W. are in hierarchy. But I deny there being any cooperation. I cannot say whether the employees in the lower grade have an interest in the promotional grade because of financial benefits. I say that it is not true to say that they are interested. Now the witness says that the employees will be naturally interested in promotional post because of the financial benefits and for the reasons known to them." 59. The learned single Judge vide para 22 of his judgment arrived at the conclusion as under: "The Companys witness Mr. Nayar has also admitted in his evidence existence of community of interest between them. Under the circumstances the tribunal has rightly come to the conclusion that the respondents have a substantial interest in the subject matter of the dispute and there is a community of interest between the respondents and those whose case they have espoused." 60. After quoting verbatim the relevant part of the evidence of Mr. Krishnan Nair as above, the counsel for the appellant-Company made the following submissions before the Division Bench (pages 96-97 Volume-II of the Companys appeal before this Court). "It is submitted that the Tribunal has nowhere cited the above statement of the Appellant Companys witness in support of its conclusions. It is respectfully submitted that the Learned Single Judge grievously erred in reappraising the evidence of the Companys witness on this vital issue. It is further submitted that the witness had, by his statement quoted above, stated only that the employees are interested in promotions because of the financial benefits and that the said statement by the witness, while stating the obvious which is indeed a universal fact, in no way amounted to admission of any community of interest between employees in workmen and non-workmen categories. It is respectfully submitted, to illustrate the point, that a Typist may become interest in, and may rightfully aspire form promotion at some indeterminate point in his future career to the post of Managing Director but such interest does not establish a community of interest between Typists and the Managing Director. It is submitted that no material whatsoever was placed by the Respondent Association and that no evidence was on record either before the Tribunal or before the Learned Single Judge to show community of interest between the two categories of employees. The Learned Single Judge erred in picking up an isolated statement made by the Companys witness, in total disregard of the central thrust of the whole body of his evidence and in holding that the Companys witness admitted, in his evidence, existence of such community of interest between the workmen and the non-workmen, wholly misconstruing the meaning of the evidence on a vital issue which goes to the root of the dispute and on such misinterpretation, the Learned Single Judge has built up the ratio of this Judgment on the issue of the status of the employees under the Act and the jurisdiction of the Tribunal." 61. We have perused the Division Bench judgment on this aspect. The Division Bench has not even adverted to, much less dealt with, the above submissions while confirming the learned single Judges ruling on this issue. The Division Bench has also ignored the cumulative effect of the Settlements of 1989 and 1995 which were concluded between the parties without prejudice to their respective rights and contentions on the status of the employees under the Act. 62. It is pertinent to refer to the Settlement of 1995 in this context. Clause 1 of the Settlement of 1995 concluded during the proceedings in the reference when the issue was already before the Tribunal, stated: "Clause 1 of this Settlement reads : "It is the Companys contention that a majority of the staff, on the one hand and the officers on the other are not workmen under Section 2(s) of The Industrial Disputes Act, 1947 and are also not covered by the provisions of The Payment of Bonus Act, 1965. These contentions of the Company are not, however, accepted by the Association. In the circumstances, it is agreed that this Settlement shall not be cited by either party as evidence of waiver of the contentions of the other and that both the parties shall continue to be at liberty to raise their respective contentions on these issues on all fora." 63. It is thus seen that the High Court has not only disregarded of vital facts but also misconstrued the evidence of the witness of the Company. This issue is answered accordingly in favour of the Management. The non-workmen cannot be given the status and protection available to the workmen under the Act. 64. The above submission of learned counsel for the appellant is well founded under the Act. Disputes can be raised only by the workmen with the employer. The workmen, however, can in appropriate cases espouse the cause of non-workmen if there is community of interest between the workmen and the non-workmen. In the instant case, it is an admitted fact that the community of interest or estoppel has never been pleaded and the findings rendered by the High Court on this issue is in the absence of pleadings. If the non-workmen are given the status and protection available to the workmen, it would men that the entire machinery and procedure of the Act would apply to the non-workmen with regard to their employment/non-employment, the terms of employment, the conditions of labour etc. This would cast on the appellant-Company the onerous burden of compliance with the provisions of the Act in respect of the non-workmen. In our view, the situation is not envisaged by the Act which is solely designed to protect the interests of the workmen as defined in Section 2(s) of the Act. Estimation/Computation of the total wage packet, which is a vital task in wage adjudication, has not been done by any of the Courts below. 65. It is argued that individual items in the wage packets can, and often do, vary very considerably among comparable concerns. Hence, estimation/computation of the total wage packets for different categories of employees and comparison of the total wage packets among comparable concerns is essential. As rightly pointed out by learned counsel for the appellant that none of the Courts below have admitted to estimate/compute the total wage packets resulting from their awards/judgments for any of the categories of employees. This is a fatal omission in the award/judgment. There has been no acceptable reply from counsel for the respondent-Association on this issue. 66. The basic pay and increment structure, found to be higher than in comparable concerns by the Learned Single Judge, remain unchanged by the Learned Single Judge himself or by the Division Bench. Along with the high rate of Dearness Allowance granted by the Order of the Division Bench, these have cascading effect on other items or emoluments like House Rent Allowance which is already high at 12.5% of Basic pay plus DA and Leave Travel Allowance which is fixed at one months basic pay the amounts specified in the Award. 67. The Tribunal had granted in toto the demands relating to scales of basic pay and increment structure except the demand for the merger of grades 12 and 11 into grade 09. The result has been a disproportionate increase in the basic pay and annual increments. Neither the Learned Single Judge nor the Division Bench attempted to remedy thetribunal has obviously committed an error in holding that the yearly burden on account of the award would be within the range of 3.3 crores to 3.7 crores and works out to more 6 to 7 percent of the total profits of the company. As a matter of fact the burden on account of the present award itself works out to about 25% of the gross profit and this fact will have to be borne in mind while fixing the wage structure and the concerned employees. 75. The Learned Single Judge has not however adverted to the above position anywhere else in his Judgment later. Further, he has not estimated the burden that would result from his own judgment. 76. In paragraph 22 of its Judgment, which is at pages 51-52 of Vol. I of the present appeal, the Division Bench observed inter alia: "We would be revisiting the question of financial burden at a later stage of the judgment once gain in considering the appropriate relief, if any, that should be granted in these proceedings." 77. Later in the Judgment however, vide paragraph 28 thereof which is on pages 76 to 78 of Vol. I of the present Appeal, the Division Bench, after reproducing some of the submissions made by both the parties, observed: "We have duly taken into account the rival submissions and have carefully considered the figures which have been submitted before us by both the sides. The Court will have also necessarily to have regard to the impact of the financial performance of the Company over a period of time. This includes the financial difficulties faced by the Company in 1998-99. Having regard to the financial burden under the award of the Tribunal as modified by us we are of the considered view that the award of the Tribunal as modified should be made operative not from 17th February, 1993 as directed by Industrial Tribunal but, with effect from 1st January, 1996." 78. The Division Bench failed to recognise that the relief granted as above is only a one-time relief and that it does not reduce the prospective burden of the modified Award. But for the observation that the rival submissions have been duly taken into account and carefully considered, there is no discussion or analysis of the submissions by the parties on the hotly contested issue of the financial burden of the Award vis-Ã -vis the Companys financial capacity. 79. It is further submitted that the reference to gross burden and net burden after taking into account the tax payable by the Company in the Award/Judgment of the Courts below are not relevant in view of the subsequent developments as the Appellant Company has not been paying any tax since the year 2000-2001. 80. The Division Bench, like the Learned Single Judge, has in fact nowhere estimated the financial burden that would result from its own judgment. This is an omission that is fatal to the legality of the Order impugned in the present Appeal. 81. The Industry-cum-region principle has not been followed nor have the comparisons been made in accordance with the well-settled law. 82. The Companies adopted for comparison are not comparable in terms of the nature of the business, sales turnover, employee strength, profits and other relevant parameters. The comparisons are also incorrect, as these have been made as between categories of employees, which are not comparable. 83. The Learned Single Judge, vide paragraph 31 of his Judgment which is at page 159 of Vol.II of the Companys Appeal, has observed: "The data furnished by the association in respect of the comparable concerns is also not complete in many respects. It seems that the data furnished is mainly in respect of the posts of peons, clerks, telephone operators, watchmen, supervisors etc. and it seems that the data concerning the staff and officers working in grade 00 to grade 5 is rather incomplete and sketchy. The claim of the workers will have to be examined keeping in mind these aspects of the matter." 84. The Learned Single Judge, however, has not adverted to these aspects of the matter anywhere else in his Judgment later. The Division Bench, toto, has not remedied the flaw in this aspect in its own Judgment. Assessment of the appellant-Companys financial capacity by the courts below is riddled with serious errors: 85. The Tribunal on this issue relied entirely on the data submitted by the Association in respect of the Companys financial capacity. The award dealt with this topic in two short paragraphs, namely, paras 63 and 64 thereof. "63. I have perused the Balance Sheets and the charts submitted by the Union and I am of the opinion that the information tabulated by the Union is satisfactory and correct and the computation of the gross profits is on well laid down principles of various adjudicating authorities. 64. It is the contention of the Union that the financial position of the Company is very sound. It is the Companys contention that the financial position is not very sound. It means that the financial condition of the Company is quite good." 86. In arriving at its conclusion as above, the Tribunal ignored the serious errors pointed out by the Company which may be seen on page 159 of Volume-III of the present appeal in the data submitted by the Association. The Tribunal considered average gross profit at Rs. 56.25 crores for the years 1991-92 to 1996-97, as against Rs. 34.22 crores as computed corrected by the Company. Learned single Judge vide para 28 of his judgment stated, inter alia, as under: "...It is true that the company has been registering losses in the last year but that may be particularly due to the factor of recession which has affected the industries in general. If we examine the material on record it is seen that the companys business is consistently growing." Again the learned single Judge vide para 29 of his judgment went on to observe: "In the light of the material placed before me it is not possible to agree with Mr. Rele that the companys financial position is not sound and the company is doing badly." 87. The Division Bench adopted, vide para 22 of its judgment, the gross profit for six years from 1991-92 to 1996-97 at Rs. 250.418 crores and average profit per year at Rs. 41.736 crores based on Krishnan Nairs affidavit dated 04.06.1999. In doing so, the Division Bench ignored the fact that the said data on profits included capital profits i.e., profits from sale of the shares in other companies owned by the Appellant Company and from sale of land etc. which had not accrued from the Companys normal business operations. The Division Bench in fact had before it the data on profits excluding capital profits, which the Tribunal also had before it, but failed to take these data into account. The relevant data are available vide Annexure P-4 on page 121 of Vol.I of the present Appeal. As may be seen from the said data, the total gross profit for the years from 1991-92 to 1996-97 was only Rs. 205.32 crores as computed corrected by the Company after excluding capital profits. The Division Bench also had before it relevant data for the period upto and including the year 1999-2000. Despite the declining trends in the financial performance of the Company as evident from the data, the Division Bench concluded, inter alia, vide paragraphs 19.8 and 19.9 of its Judgment, which are on pages 37-39 of Vol.I of the present Appeal, as under: "In the present case, these economic and financial indicators reflective of the performance and financial health of the employer establish beyond doubt that this is a company which is financially sound. | 1 | 17,419 | 3,196 | ### Instruction:
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given by the appellant-Company before us ensuring that the total wage packets of the non-workmen to whom the award further modified as above will not be applicable, are not lower than the total wage packets available to the workmen under the said award. 96. The appellant-Management has a prima facie case on merits and the balance of convenience is entirely in their favour. We also hold that the employer and the employees by their conduct is concluding settlements in the past cannot create or confer upon an adjudicating authority jurisdiction where none existed in respect of employees to whom the provisions of the Act are not applicable. In the instant case, the employer had admittedly not waived their right to issue the status of the employees under the Act in any of the said settlements. The High Court, both the learned single Judge and of the Division Bench had stepped into the shoes of the adjudicating authority and virtually modified/altered the award in vital respects like basic linked variable D.A., D.A. fixed in forms of percentages of basic pay, service increments, gratuity and effective dates for increase in emoluments. 97. The Industrial Tribunal did not have jurisdiction to adjudicate the present dispute inasmuch as it pertains to the conditions of service of non-workmen. The learned single Judge and the Division Bench of the High Court failed to appreciate that parties cannot be their conduct create or confer jurisdiction on an adjudicating authority when no such jurisdiction exists. We have already noticed that the Division Bench has erred in holding that there is community of interest between the workmen and the non-workmen and holding further that the workmen could raise a dispute regarding the service conditions of non-workmen. 98. The High Court further failed to appreciate that in order to secure revision of their own grades or other items of emoluments, it was not necessary for employees who are workmen under the Act to agitate also for the revision of the emoluments of those who are not workmen, and that as such the workmen in the present, have no direct or substantial interest in the revision of emoluments of employees who are not workmen, nor could the workmen be held to be vitally interested in the terms of employment of the non-workmen. 99. The High Court also failed to appreciate that workmen as well as non-workmen being in the same grade did not imply that the distinction between the two categories ceased to exist, or that they belonged to the same class. 100. The Division Bench has further erred in relying on the various settlements concluded between the parties in the past regarding the service conditions of the employees including the settlement of 1974 relating to welfare scheme. Both the Division Bench and the learned single Judge failed to appreciate that none of the said settlements contained any provision, or even a whisper thereof, of any waiver by the appellant-Company of its rights with regard to the status of the employees under the Act. 101. During the pendency of the proceedings in this Court, supplementary affidavit was filed by the Vice President, Finance of the appellant-Company bringing to this Courts notice certain crucial events that have occurred subsequent to the admission of the appeal, which have a vital bearing on the case. It is stated therein that the appellant-Company is in dire financial straits. The Company has already placed on record financial difficulties which it has been encountering. The present affidavit was placed on record with the updated situation as at present. The Company has suffered a loss before tax of about Rs. 210 crores in the financial year 2002-03 which was reduced to Rs. 157 crores after considering waivers and reduction in interest rate aggregating to Rs. 53 crores on the basis of concessions given by the banks and financial institutions under a restructuring package. The loss as stated above follows a loss before tax of Rs. 111 crores in the previous financial year i.e. year 2001-02 and that the losses as above are without taking into account the arrears payable to the employees amounting to Rs. 15.45 crores. The appellant being suffered a further loss before tax at Rs. 40 crores in the first quarter of the current year i.e. year 2003-04 as per the unaudited financial results and the accumulated loss is Rs. 269 crores as on 30.06.2003 leaving a net worth of Rs. 28 crores. Along with the affidavit annexures were filed for the year ended 31.03.2003. According to the learned senior counsel, the Company has now become a potentially sick industrial Company as defined by The Sick Industrial Companies (Special Provisions) Act, 1985 since there has been an erosion of more than 50% in the Companys peak net worth in the four preceding years on the basis of the audited financial results for the financial year 2002-03. The Appellant Company is required under the provisions of Section 23 of the said Act to report the fact of such erosion to the Board for Industrial and Financial Reconstruction within sixty days from the date of finalisation of the duly audited accounts of the Company for the financial year 2002-03 and also to take further actions specified in the said provisions. The appellant-Company is now in the process of submitting the necessary report to the Board for Industrial and Financial Reconstruction as required under the said Act. 102. On account of adverse market conditions and unviability of the business, the appellant-Company was complied to close down permanently its Machine Tools Division at Ballabgarh in Haryana with effect from 18.12.2002. 103. Several other details in regard to the sickness of the company has also been furnished. Since we are remitting the matter to the Industrial Tribunal, it is for the appellant-Company to place the additional materials before the said Tribunal for its adjudication. During the pendency of the proceedings before the High Court and of this Court, certain directions were given in regard to the disbursement of certain amounts.
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us we are of the considered view that the award of the Tribunal as modified should be made operative not from 17th February, 1993 as directed by Industrial Tribunal but, with effect from 1st January, 1996." 78. The Division Bench failed to recognise that the relief granted as above is only a one-time relief and that it does not reduce the prospective burden of the modified Award. But for the observation that the rival submissions have been duly taken into account and carefully considered, there is no discussion or analysis of the submissions by the parties on the hotly contested issue of the financial burden of the Award vis-Ã -vis the Companys financial capacity. 79. It is further submitted that the reference to gross burden and net burden after taking into account the tax payable by the Company in the Award/Judgment of the Courts below are not relevant in view of the subsequent developments as the Appellant Company has not been paying any tax since the year 2000-2001. 80. The Division Bench, like the Learned Single Judge, has in fact nowhere estimated the financial burden that would result from its own judgment. This is an omission that is fatal to the legality of the Order impugned in the present Appeal. 81. The Industry-cum-region principle has not been followed nor have the comparisons been made in accordance with the well-settled law. 82. The Companies adopted for comparison are not comparable in terms of the nature of the business, sales turnover, employee strength, profits and other relevant parameters. The comparisons are also incorrect, as these have been made as between categories of employees, which are not comparable. 83. The Learned Single Judge, vide paragraph 31 of his Judgment which is at page 159 of Vol.II of the Companys Appeal, has observed: "The data furnished by the association in respect of the comparable concerns is also not complete in many respects. It seems that the data furnished is mainly in respect of the posts of peons, clerks, telephone operators, watchmen, supervisors etc. and it seems that the data concerning the staff and officers working in grade 00 to grade 5 is rather incomplete and sketchy. The claim of the workers will have to be examined keeping in mind these aspects of the matter." 84. The Learned Single Judge, however, has not adverted to these aspects of the matter anywhere else in his Judgment later. The Division Bench, toto, has not remedied the flaw in this aspect in its own Judgment. Assessment of the appellant-Companys financial capacity by the courts below is riddled with serious errors: 85. The Tribunal on this issue relied entirely on the data submitted by the Association in respect of the Companys financial capacity. The award dealt with this topic in two short paragraphs, namely, paras 63 and 64 thereof. "63. I have perused the Balance Sheets and the charts submitted by the Union and I am of the opinion that the information tabulated by the Union is satisfactory and correct and the computation of the gross profits is on well laid down principles of various adjudicating authorities. 64. It is the contention of the Union that the financial position of the Company is very sound. It is the Companys contention that the financial position is not very sound. It means that the financial condition of the Company is quite good." 86. In arriving at its conclusion as above, the Tribunal ignored the serious errors pointed out by the Company which may be seen on page 159 of Volume-III of the present appeal in the data submitted by the Association. The Tribunal considered average gross profit at Rs. 56.25 crores for the years 1991-92 to 1996-97, as against Rs. 34.22 crores as computed corrected by the Company. Learned single Judge vide para 28 of his judgment stated, inter alia, as under: "...It is true that the company has been registering losses in the last year but that may be particularly due to the factor of recession which has affected the industries in general. If we examine the material on record it is seen that the companys business is consistently growing." Again the learned single Judge vide para 29 of his judgment went on to observe: "In the light of the material placed before me it is not possible to agree with Mr. Rele that the companys financial position is not sound and the company is doing badly." 87. The Division Bench adopted, vide para 22 of its judgment, the gross profit for six years from 1991-92 to 1996-97 at Rs. 250.418 crores and average profit per year at Rs. 41.736 crores based on Krishnan Nairs affidavit dated 04.06.1999. In doing so, the Division Bench ignored the fact that the said data on profits included capital profits i.e., profits from sale of the shares in other companies owned by the Appellant Company and from sale of land etc. which had not accrued from the Companys normal business operations. The Division Bench in fact had before it the data on profits excluding capital profits, which the Tribunal also had before it, but failed to take these data into account. The relevant data are available vide Annexure P-4 on page 121 of Vol.I of the present Appeal. As may be seen from the said data, the total gross profit for the years from 1991-92 to 1996-97 was only Rs. 205.32 crores as computed corrected by the Company after excluding capital profits. The Division Bench also had before it relevant data for the period upto and including the year 1999-2000. Despite the declining trends in the financial performance of the Company as evident from the data, the Division Bench concluded, inter alia, vide paragraphs 19.8 and 19.9 of its Judgment, which are on pages 37-39 of Vol.I of the present Appeal, as under: "In the present case, these economic and financial indicators reflective of the performance and financial health of the employer establish beyond doubt that this is a company which is financially sound.
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Delhi Cloth and General Mills Limited Vs. Shambhu Nath Mukherjee and Others | because of a Full Bench decision of the Delhi High Court but that does not satisfy the basic factual requirement for the objection that it was actually case of an individual dispute under S. 2A unespoused by the union, which was referred by the Administration under S. 10(1)(c) of the Act. 9. We have to state the above facts in some detail as the appellant on the second day of the argument submitted before us that since he was raising the vires of S. 2A on the ground of legislative incompetency the appeal had to be heard by a Bench of Seven Judges under Art. 144A which was introduced by the 42nd Amendment of the Constitution. Before this constitutional question could be raised it must be manifest on the records that the question arose on the facts disclosed. As we have pointed out, there was no allegation by stating appropriate facts that the dispute of the workman had not been espoused by the union or by a substantial number of workmen. There is nothing to show on the face of the reference that the Administration was considering the case on the basis of S.2A of the Act. Even though recital of S. 2A was not there in the reference it was open to the management to raise the issue before the Labour Court as to whether in fact it was a dispute which was referred by the Administration merely on the application of the workman. On the other hand, we find that the reference was made by the Lieutenant Governor under S. 10(1)(c) read with S.12(5) of the Act. There is nothing to show that even before the Conciliation officer any objection was taken by the management that it was not an industrial dispute within the meaning of S.2(k) of the Act. Nothing prevented the management from raising such an issue even before the Conciliation Officer. We are, therefore, clearly of opinion that this is not a case where litigation can be allowed to be dragged on by allowing the management to raise this question for the first time in this Court without any basis. We, therefore, decline to accede to the request that this is at all a fit appeal for reference to a Bench of seven Judges. There is no basis for considering the provision of S. 2A in this appeal. 10. With regard to the objection on the score of Art. 14 of the Constitution, it is sufficient to state that the matter is concluded by the principle laid down by this Court in Niemla Textile Finishing Mills Ltd. v. The 2nd Punjab Industrial Tribunal, [1957-I L.L.J. 460]; (1957) S.C.R. 335. In that case a challenge was made, inter alia, to S.10 of the Act as being invalid on the ground of violation of Art. 14 of the Constitution. In an exhaustive judgment, this Court repelled the contention. 11. It is submitted by Mr. Dial that in that decision this Court was only required to consider the objection raised on the score of Art. 14 on a ground which is different from the one he would like to take before us. We are, however, unable to accept this submission. If this Court held S. 10 as intra vires and repelled the objection under Art. 14 of the Constitution it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection. It is certainly easy to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by this Court holding that S.10 of the Act does not violate Art. 14 of the Constitution. The ratio decidendi of Niemla Textile Finishing Mills (supra) will apply while dealing with the objection under Art. 14 of the Constitution in respect of the present reference under S. 10(1)(c) of the Act. The submission of the learned counsel is, therefore, devoid of substance 12. The question then arises whether the High Court was right in refusing to interfere with the award under Art. 226 of the Constitution. There is no manifest error of law on the face of the award and none could be pointed out by the learned counsel. Neither is there any error of jurisdiction. The issue before the Labour Court was one of reinstatement of the workman and the Labour Court was entitled to go into the whole question which it did. We do not find any infirmity in the award. 13. On the face of it, the order striking off the name of the workman from the rolls on August 24, 1965, is clearly erroneous. No order, even under S. 27(c) of the standing orders, could have been passed on that date. The clause in the standing orders reads as follows :"If any workman absents for more than eight consecutive days his services shall be terminated and shall be treated having left the service without notice". 14. The workman last attended work on 14th August, 1965. 15th August was a public holiday. He was, therefore, absent from work only from 16th of August. So even under the standing orders the workman was not absent for "more than eight consecutive days" on 24th August, 1965. The order is, therefore, clearly untenable even on the basis of the standing orders. It is not necessary to express any opinion in this appeal whether "eight consecutive days" in the standing orders mean eight consecutive working days. 15. Striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of S.2(oo) of the Act. There is nothing to show that the provisions of S. 25F (a) and (b) were complied with by the management in this case. The provisions of S. 25F (a), the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent, is invalid. | 0[ds]6. It is clear from the above that no objection was taken by the management to the effect that the case of the workman had not been espoused by other workman or by any union.It is true that in the grounds taken in the High Court it was stated "that S.2A of the Industrial Disputes Act is ultra vires the powers of the Legislature under Item 22 List III to Schedule VII of the Constitution of India", but this objection can only be, as is now made clear by the appellant, on the basis that the dispute relating to the workman had not been espoused by other workman or by a union. A perusal of the reference under S. 10(1)(c) does not ex facie show that it was a reference of an individual disputes under S. 2A. That being the position, if the appellant wanted to raise this question before the Labour Court it was necessary for it to raise a triable issue by stating the facts that the dispute relating to the termination of service of the workman was not espoused by the union. Merely taking a ground in the writ application does not dispense with the requirement of stating facts in order to support the legal ground. If the ground were taken by making appropriate allegations it would have been necessary for the Labour Court to call for a report from the administration and it would have been possible for the workman to show that his case was in fact espoused by a substantial number of workmen or by a union7. From the judgment of the learned single Judge it does not appear that this question of the vires of S. 2A had been urged before him. It was only urged that S. 2A was invalid since it offended Art. 14 of the ConstitutionAs we have pointed out, there was no allegation by stating appropriate facts that the dispute of the workman had not been espoused by the union or by a substantial number of workmen. There is nothing to show on the face of the reference that the Administration was considering the case on the basis of S.2A of the Act. Even though recital of S. 2A was not there in the reference it was open to the management to raise the issue before the Labour Court as to whether in fact it was a dispute which was referred by the Administration merely on the application of the workman. On the other hand, we find that the reference was made by the Lieutenant Governor under S. 10(1)(c) read with S.12(5) of the Act. There is nothing to show that even before the Conciliation officer any objection was taken by the management that it was not an industrial dispute within the meaning of S.2(k) of the Act. Nothing prevented the management from raising such an issue even before the Conciliation Officer. We are, therefore, clearly of opinion that this is not a case where litigation can be allowed to be dragged on by allowing the management to raise this question for the first time in this Court without any basis. We, therefore, decline to accede to the request that this is at all a fit appeal for reference to a Bench of seven Judges. There is no basis for considering the provision of S. 2A in this appealIf this Court held S. 10 as intra vires and repelled the objection under Art. 14 of the Constitution it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection. It is certainly easy to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by this Court holding that S.10 of the Act does not violate Art. 14 of the Constitution. The ratio decidendi of Niemla Textile Finishing Mills (supra) will apply while dealing with the objection under Art. 14 of the Constitution in respect of the present reference under S. 10(1)(c) of the Act. The submission of the learned counsel is, therefore, devoid of substanceThere is no manifest error of law on the face of the award and none could be pointed out by the learned counsel. Neither is there any error of jurisdiction. The issue before the Labour Court was one of reinstatement of the workman and the Labour Court was entitled to go into the whole question which it did. We do not find any infirmity in the award13. On the face of it, the order striking off the name of the workman from the rolls on August 24, 1965, is clearly erroneous14. The workman last attended work on 14th August, 1965. 15th August was a public holiday. He was, therefore, absent from work only from 16th of August. So even under the standing orders the workman was not absent for "more than eight consecutive days" on 24th August, 1965. The order is, therefore, clearly untenable even on the basis of the standing orders. It is not necessary to express any opinion in this appeal whether "eight consecutive days" in the standing orders mean eight consecutive working days15. Striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of S.2(oo) of the Act. There is nothing to show that the provisions of S. 25F (a) and (b) were complied with by the management in this case. The provisions of S. 25F (a), the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent, is invalid. | 0 | 2,625 | 1,059 | ### Instruction:
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because of a Full Bench decision of the Delhi High Court but that does not satisfy the basic factual requirement for the objection that it was actually case of an individual dispute under S. 2A unespoused by the union, which was referred by the Administration under S. 10(1)(c) of the Act. 9. We have to state the above facts in some detail as the appellant on the second day of the argument submitted before us that since he was raising the vires of S. 2A on the ground of legislative incompetency the appeal had to be heard by a Bench of Seven Judges under Art. 144A which was introduced by the 42nd Amendment of the Constitution. Before this constitutional question could be raised it must be manifest on the records that the question arose on the facts disclosed. As we have pointed out, there was no allegation by stating appropriate facts that the dispute of the workman had not been espoused by the union or by a substantial number of workmen. There is nothing to show on the face of the reference that the Administration was considering the case on the basis of S.2A of the Act. Even though recital of S. 2A was not there in the reference it was open to the management to raise the issue before the Labour Court as to whether in fact it was a dispute which was referred by the Administration merely on the application of the workman. On the other hand, we find that the reference was made by the Lieutenant Governor under S. 10(1)(c) read with S.12(5) of the Act. There is nothing to show that even before the Conciliation officer any objection was taken by the management that it was not an industrial dispute within the meaning of S.2(k) of the Act. Nothing prevented the management from raising such an issue even before the Conciliation Officer. We are, therefore, clearly of opinion that this is not a case where litigation can be allowed to be dragged on by allowing the management to raise this question for the first time in this Court without any basis. We, therefore, decline to accede to the request that this is at all a fit appeal for reference to a Bench of seven Judges. There is no basis for considering the provision of S. 2A in this appeal. 10. With regard to the objection on the score of Art. 14 of the Constitution, it is sufficient to state that the matter is concluded by the principle laid down by this Court in Niemla Textile Finishing Mills Ltd. v. The 2nd Punjab Industrial Tribunal, [1957-I L.L.J. 460]; (1957) S.C.R. 335. In that case a challenge was made, inter alia, to S.10 of the Act as being invalid on the ground of violation of Art. 14 of the Constitution. In an exhaustive judgment, this Court repelled the contention. 11. It is submitted by Mr. Dial that in that decision this Court was only required to consider the objection raised on the score of Art. 14 on a ground which is different from the one he would like to take before us. We are, however, unable to accept this submission. If this Court held S. 10 as intra vires and repelled the objection under Art. 14 of the Constitution it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection. It is certainly easy to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by this Court holding that S.10 of the Act does not violate Art. 14 of the Constitution. The ratio decidendi of Niemla Textile Finishing Mills (supra) will apply while dealing with the objection under Art. 14 of the Constitution in respect of the present reference under S. 10(1)(c) of the Act. The submission of the learned counsel is, therefore, devoid of substance 12. The question then arises whether the High Court was right in refusing to interfere with the award under Art. 226 of the Constitution. There is no manifest error of law on the face of the award and none could be pointed out by the learned counsel. Neither is there any error of jurisdiction. The issue before the Labour Court was one of reinstatement of the workman and the Labour Court was entitled to go into the whole question which it did. We do not find any infirmity in the award. 13. On the face of it, the order striking off the name of the workman from the rolls on August 24, 1965, is clearly erroneous. No order, even under S. 27(c) of the standing orders, could have been passed on that date. The clause in the standing orders reads as follows :"If any workman absents for more than eight consecutive days his services shall be terminated and shall be treated having left the service without notice". 14. The workman last attended work on 14th August, 1965. 15th August was a public holiday. He was, therefore, absent from work only from 16th of August. So even under the standing orders the workman was not absent for "more than eight consecutive days" on 24th August, 1965. The order is, therefore, clearly untenable even on the basis of the standing orders. It is not necessary to express any opinion in this appeal whether "eight consecutive days" in the standing orders mean eight consecutive working days. 15. Striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of S.2(oo) of the Act. There is nothing to show that the provisions of S. 25F (a) and (b) were complied with by the management in this case. The provisions of S. 25F (a), the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent, is invalid.
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6. It is clear from the above that no objection was taken by the management to the effect that the case of the workman had not been espoused by other workman or by any union.It is true that in the grounds taken in the High Court it was stated "that S.2A of the Industrial Disputes Act is ultra vires the powers of the Legislature under Item 22 List III to Schedule VII of the Constitution of India", but this objection can only be, as is now made clear by the appellant, on the basis that the dispute relating to the workman had not been espoused by other workman or by a union. A perusal of the reference under S. 10(1)(c) does not ex facie show that it was a reference of an individual disputes under S. 2A. That being the position, if the appellant wanted to raise this question before the Labour Court it was necessary for it to raise a triable issue by stating the facts that the dispute relating to the termination of service of the workman was not espoused by the union. Merely taking a ground in the writ application does not dispense with the requirement of stating facts in order to support the legal ground. If the ground were taken by making appropriate allegations it would have been necessary for the Labour Court to call for a report from the administration and it would have been possible for the workman to show that his case was in fact espoused by a substantial number of workmen or by a union7. From the judgment of the learned single Judge it does not appear that this question of the vires of S. 2A had been urged before him. It was only urged that S. 2A was invalid since it offended Art. 14 of the ConstitutionAs we have pointed out, there was no allegation by stating appropriate facts that the dispute of the workman had not been espoused by the union or by a substantial number of workmen. There is nothing to show on the face of the reference that the Administration was considering the case on the basis of S.2A of the Act. Even though recital of S. 2A was not there in the reference it was open to the management to raise the issue before the Labour Court as to whether in fact it was a dispute which was referred by the Administration merely on the application of the workman. On the other hand, we find that the reference was made by the Lieutenant Governor under S. 10(1)(c) read with S.12(5) of the Act. There is nothing to show that even before the Conciliation officer any objection was taken by the management that it was not an industrial dispute within the meaning of S.2(k) of the Act. Nothing prevented the management from raising such an issue even before the Conciliation Officer. We are, therefore, clearly of opinion that this is not a case where litigation can be allowed to be dragged on by allowing the management to raise this question for the first time in this Court without any basis. We, therefore, decline to accede to the request that this is at all a fit appeal for reference to a Bench of seven Judges. There is no basis for considering the provision of S. 2A in this appealIf this Court held S. 10 as intra vires and repelled the objection under Art. 14 of the Constitution it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection. It is certainly easy to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by this Court holding that S.10 of the Act does not violate Art. 14 of the Constitution. The ratio decidendi of Niemla Textile Finishing Mills (supra) will apply while dealing with the objection under Art. 14 of the Constitution in respect of the present reference under S. 10(1)(c) of the Act. The submission of the learned counsel is, therefore, devoid of substanceThere is no manifest error of law on the face of the award and none could be pointed out by the learned counsel. Neither is there any error of jurisdiction. The issue before the Labour Court was one of reinstatement of the workman and the Labour Court was entitled to go into the whole question which it did. We do not find any infirmity in the award13. On the face of it, the order striking off the name of the workman from the rolls on August 24, 1965, is clearly erroneous14. The workman last attended work on 14th August, 1965. 15th August was a public holiday. He was, therefore, absent from work only from 16th of August. So even under the standing orders the workman was not absent for "more than eight consecutive days" on 24th August, 1965. The order is, therefore, clearly untenable even on the basis of the standing orders. It is not necessary to express any opinion in this appeal whether "eight consecutive days" in the standing orders mean eight consecutive working days15. Striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of S.2(oo) of the Act. There is nothing to show that the provisions of S. 25F (a) and (b) were complied with by the management in this case. The provisions of S. 25F (a), the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent, is invalid.
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Union Of India Vs. The Lonavla Borough Municipality Of Lonavla, District Poon | this fresh notification as the liability of the Railway to pay that tax already existed under that notification of 1914.10. The second circumstance that we can take notice of is the historical background in which this notification of 26th July, 1917 was issued. It appears that, after the Rules for imposition of this consolidated tax came into force in 1916, the Municipality demanded payment of this consolidated tax from the G.I.P. Railway. Thereupon, the Agent of the G.I.P. Railway Company wrote a letter to the Secretary, Railway Board, Simla on the 1st December, 1916, stating that the Company did not agree that it should pay the new consolidated tax as it comprised a house tax and a water rate. The Company had its own arrangements for the supply of water and it was obviously unfair that it should be called upon to pay any tax which includes a water rate, when no municipal water was being consumed by the Railway at Lonavala The Secretary, Railway Board, forwarded this letter to the Secretary to the Government of Bombay, General Department, with a letter dated 12th December, 1916, enquiring whether the Agents information was correct and, if so, whether the Bombay Government had any remarks to offer on the Agents contentions. On 11th May, 1917, the Secretary to the Government of Bombay replied to the Secretary, Railway Board, pointing out that, originally, the Municipality proposed to levy a general water rate on all houses, in addition to the existing house tax, but, on representations from property owners of Lonavala and Khandala it had decided to impose a consolidated rate on buildings and lands in lieu of the house-tax and the proposed general water rate Consequently, they were levying, in lieu of house-tax a consolidated rate, which included a general water rate, on sliding scale, on all properties situated within the municipal limits The water rate imposed was not intended to cover expenses on any service rendered in the nature of a general tax as opposed to a service tax. In equity, the Railway Companys property in Lonavala had no better right to exemption than the properties of private individuals who, although they did not take private pipe connections, were paying the general water rate. In the circumstances, a request was made to the Secretary, Railway Board, to move the Government of India to declare the Administration of the G.I.P. Railway liable to pay to the Lonavala Municipality the consolidated tax on buildings and lands in lieu of the house-tax in respect of the railway properties situated within the municipal limits. It was suggested that the Schedule annexed to the notification dated 13th May, 1914 may be amended accordingly. It was in pursuance of this move by the Bombay Government that the notification of 26th July, 1917 was issued by the Central Government. That the notification of 26th July, 191? was issued in pursuance of this correspondence is clarified by the Memorandum dated 17th August. 1917, with which a copy of the new notification was forwarded by the Government of India, Railway Department (Railway Board) to the Secretary to the Government of Bombay. These circumstances in which the notification of 26th July, 1917 was issued, make it plain that the Government of India, when they used the expression "tax on buildings and lands" in the notification. intended to make the G.I.P Railway liable to the consolidated tax which had been imposed by the Municipality under the Rules of 1916.11. The decision of the Bombay High Court in Borough Municipality, Ahmedabad v. Ahmedabad Manufacturing and Calico Printing Co. Ltd., AIR l939 Bom 478 on interpretation of sections 73 and 110 of the Act of 1925 also supports the view that we have taken above. The question that arose in that case was whether the right of an appeal envisaged by using the expression "in the case of a rate on buildings or lands or both" in section 110 could be availed of in respect of a general water rate imposed under clause (x) of section 73 (1) which described that tax as a general water rate imposed in the form of a rate assessed on buildings and lands. It was held that there was no distinction between a rate on buildings or lands and tax in the form of a rate assessed on buildings or lands.In the case before us, on that analogy, a consolidated tax assessed as a rate on buildings and lands cannot be distinguished from a tax on buildings and lands.12. Reference may also be made to a decision of the Allahabad High Court in Raza Buland Sugar Co., Ltd., Rampur v. Municipal Board, Rampur, AIR 1962 All 83 where it was held that a water rate is a tax on buildings and lands and is not, in fact, a service tax chargeable in respect of water supplied. Counsel for the appellant referred to a decision of the Madras High Court in Municipal Council, Cuddappah v. M. and S. Ry. Co. Ltd., AIR 1929 Mad 746 , but that case is of no assistance as it turned on the special language which had been used in the Act and the notification which came up for consideration in that case. In fact, the expression that had to be interpreted was "property tax" and not tax on buildings and lands". We agree with learned counsel for the appellant that such assistance cannot be derived from the decision of this Court in Patel Gordhandas Hargorvindas v. Municipal Commr. Ahmedabad (1964) 2 SCR 608 = (AIR 1963 SC 1742 ) which was relied upon by the High Court. However, as we have held above, on the proper interpretation of the language used in the two Acts, the Rules, and the notification. and taking into account the circumstances under which the notification of 1917 was issued, the only conclusion that can be arrived at is that the Railway was made liable to this consolidated tax, so that the decision of the High Court is perfectly correct. | 0[ds]8. It is also significant to note that the Rules which were framed by the Municipality under the Act of 1901 and by the Municipal Borough later under the Act of 1925 which were promulgated on the 4th May, 1916 and the 6th October, 1931 respectively, described the tax as a general rate on buildings and lands in Rule 1. It is true that, in the heading of the Rules, the expression used was that "the Rules were for the levy of a consolidated rate on buildings and lands" but, in the main provision, the tax was described only as "a general rate on buildings and lands". A general rate on buildings and lands is obviously a tax on buildings and lands and would, therefore, be covered by the notification of the Central Government dated 26th July, 1917.9. Apart from this interpretation which we have arrived at on the basis of the language used in the two Acts, the Rules, and the notification of the Central Government, there are two circumstances which indicate that this must be the correct construction of the notification issued by the Central Government. The first circumstance is that, when this notification was issued, the only tax which was being imposed by the Lonavala Municipality which the Central Government could have intended should become payable by the G.I P. Railway was the consolidated tax under clause (c) of the second proviso. There was no other tax which would have been covered by this notification. In fact, the notification would be meaningless if we were to hold that this consolidated tax is not covered by the expression "tax on buildings and lands". This notification was issued while the earlier notification of 1914 was already in existence and, if the intention was to cover only the rate mentioned in clause (i) of S. 59 (1), there was no need to issue this fresh notification as the liability of the Railway to pay that tax already existed under that notification of 1914.10. The second circumstance that we can take notice of is the historical background in which this notification of 26th July, 1917 was issued. It appears that, after the Rules for imposition of this consolidated tax came into force in 1916, the Municipality demanded payment of this consolidated tax from the G.I.P. Railway. Thereupon, the Agent of the G.I.P. Railway Company wrote a letter to the Secretary, Railway Board, Simla on the 1st December, 1916, stating that the Company did not agree that it should pay the new consolidated tax as it comprised a house tax and a water rate. The Company had its own arrangements for the supply of water and it was obviously unfair that it should be called upon to pay any tax which includes a water rate, when no municipal water was being consumed by the Railway at Lonavala The Secretary, Railway Board, forwarded this letter to the Secretary to the Government of Bombay, General Department, with a letter dated 12th December, 1916, enquiringwhether the Agents information was correct and, if so, whether the Bombay Government had any remarks to offer on the Agents contentions.On 11th May, 1917, the Secretary to the Government of Bombay replied to the Secretary, Railway Board, pointing out that, originally, the Municipality proposed to levy a general water rate on all houses, in addition to the existing house tax, but, on representations from property owners of Lonavala and Khandala it had decided to impose a consolidated rate on buildings and lands in lieu of the house-tax and the proposed general water rate Consequently, they were levying, in lieu of house-tax a consolidated rate, which included a general water rate, on sliding scale, on all properties situated within the municipal limits The water rate imposed was not intended to cover expenses on any service rendered in the nature of a general tax as opposed to a service tax. In equity, the Railway Companys property in Lonavala had no better right to exemption than the properties of private individuals who, although they did not take private pipe connections, were paying the general water rate. In the circumstances, a request was made to the Secretary, Railway Board, to move the Government of India to declare the Administration of the G.I.P. Railway liable to pay to the Lonavala Municipality the consolidated tax on buildings and lands in lieu of the house-tax in respect of the railway properties situated within the municipal limits. It was suggested that the Schedule annexed to the notification dated 13th May, 1914 may be amended accordingly. It was in pursuance of this move by the Bombay Government that the notification of 26th July, 1917 was issued by the Central Government. That the notification of 26th July, 191? was issued in pursuance of this correspondence is clarified by the Memorandum dated 17th August. 1917, with which a copy of the new notification was forwarded by the Government of India, Railway Department (Railway Board) to the Secretary to the Government of Bombay. These circumstances in which the notification of 26th July, 1917 was issued, make it plain that the Government of India, when they used the expression "tax on buildings and lands" in the notification. intended to make the G.I.P Railway liable to the consolidated tax which had been imposed by the Municipality under the Rules of 1916.11. The decision of the Bombay High Court in Borough Municipality, Ahmedabad v. Ahmedabad Manufacturing and Calico Printing Co. Ltd., AIR l939 Bom 478 on interpretation of sections 73 and 110 of the Act of 1925 also supports the view that we have taken above. The question that arose in that case was whether the right of an appeal envisaged by using the expression "in the case of a rate on buildings or lands or both" in section 110 could be availed of in respect of a general water rate imposed under clause (x) of section 73 (1) which described that tax as a general water rate imposed in the form of a rate assessed on buildings and lands. It was held that there was no distinction between a rate on buildings or lands and tax in the form of a rate assessed on buildings or lands.In the case before us, on that analogy, a consolidated tax assessed as a rate on buildings and lands cannot be distinguished from a tax on buildings and lands.12. Reference may also be made to a decision of the Allahabad High Court in Raza Buland Sugar Co., Ltd., Rampur v. Municipal Board, Rampur, AIR 1962 All 83 where it was held that a water rate is a tax on buildings and lands and is not, in fact, a service tax chargeable in respect of water supplied. Counsel for the appellant referred to a decision of the Madras High Court in Municipal Council, Cuddappah v. M. and S. Ry. Co. Ltd., AIR 1929 Mad 746 , but that case is of no assistance as it turned on the special language which had been used in the Act and the notification which came up for consideration in that case. In fact, the expression that had to be interpreted was "property tax" and not tax on buildings and lands". We agree with learned counsel for the appellant that such assistance cannot be derived from the decision of this Court in Patel Gordhandas Hargorvindas v. Municipal Commr. Ahmedabad (1964) 2 SCR 608 = (AIR 1963 SC 1742 ) which was relied upon by the High Court. However, as we have held above, on the proper interpretation of the language used in the two Acts, the Rules, and the notification. and taking into account the circumstances under which the notification of 1917 was issued, the only conclusion that can be arrived at is that the Railway was made liable to this consolidated tax, so that the decision of the High Court is perfectly correct. | 0 | 4,435 | 1,463 | ### Instruction:
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this fresh notification as the liability of the Railway to pay that tax already existed under that notification of 1914.10. The second circumstance that we can take notice of is the historical background in which this notification of 26th July, 1917 was issued. It appears that, after the Rules for imposition of this consolidated tax came into force in 1916, the Municipality demanded payment of this consolidated tax from the G.I.P. Railway. Thereupon, the Agent of the G.I.P. Railway Company wrote a letter to the Secretary, Railway Board, Simla on the 1st December, 1916, stating that the Company did not agree that it should pay the new consolidated tax as it comprised a house tax and a water rate. The Company had its own arrangements for the supply of water and it was obviously unfair that it should be called upon to pay any tax which includes a water rate, when no municipal water was being consumed by the Railway at Lonavala The Secretary, Railway Board, forwarded this letter to the Secretary to the Government of Bombay, General Department, with a letter dated 12th December, 1916, enquiring whether the Agents information was correct and, if so, whether the Bombay Government had any remarks to offer on the Agents contentions. On 11th May, 1917, the Secretary to the Government of Bombay replied to the Secretary, Railway Board, pointing out that, originally, the Municipality proposed to levy a general water rate on all houses, in addition to the existing house tax, but, on representations from property owners of Lonavala and Khandala it had decided to impose a consolidated rate on buildings and lands in lieu of the house-tax and the proposed general water rate Consequently, they were levying, in lieu of house-tax a consolidated rate, which included a general water rate, on sliding scale, on all properties situated within the municipal limits The water rate imposed was not intended to cover expenses on any service rendered in the nature of a general tax as opposed to a service tax. In equity, the Railway Companys property in Lonavala had no better right to exemption than the properties of private individuals who, although they did not take private pipe connections, were paying the general water rate. In the circumstances, a request was made to the Secretary, Railway Board, to move the Government of India to declare the Administration of the G.I.P. Railway liable to pay to the Lonavala Municipality the consolidated tax on buildings and lands in lieu of the house-tax in respect of the railway properties situated within the municipal limits. It was suggested that the Schedule annexed to the notification dated 13th May, 1914 may be amended accordingly. It was in pursuance of this move by the Bombay Government that the notification of 26th July, 1917 was issued by the Central Government. That the notification of 26th July, 191? was issued in pursuance of this correspondence is clarified by the Memorandum dated 17th August. 1917, with which a copy of the new notification was forwarded by the Government of India, Railway Department (Railway Board) to the Secretary to the Government of Bombay. These circumstances in which the notification of 26th July, 1917 was issued, make it plain that the Government of India, when they used the expression "tax on buildings and lands" in the notification. intended to make the G.I.P Railway liable to the consolidated tax which had been imposed by the Municipality under the Rules of 1916.11. The decision of the Bombay High Court in Borough Municipality, Ahmedabad v. Ahmedabad Manufacturing and Calico Printing Co. Ltd., AIR l939 Bom 478 on interpretation of sections 73 and 110 of the Act of 1925 also supports the view that we have taken above. The question that arose in that case was whether the right of an appeal envisaged by using the expression "in the case of a rate on buildings or lands or both" in section 110 could be availed of in respect of a general water rate imposed under clause (x) of section 73 (1) which described that tax as a general water rate imposed in the form of a rate assessed on buildings and lands. It was held that there was no distinction between a rate on buildings or lands and tax in the form of a rate assessed on buildings or lands.In the case before us, on that analogy, a consolidated tax assessed as a rate on buildings and lands cannot be distinguished from a tax on buildings and lands.12. Reference may also be made to a decision of the Allahabad High Court in Raza Buland Sugar Co., Ltd., Rampur v. Municipal Board, Rampur, AIR 1962 All 83 where it was held that a water rate is a tax on buildings and lands and is not, in fact, a service tax chargeable in respect of water supplied. Counsel for the appellant referred to a decision of the Madras High Court in Municipal Council, Cuddappah v. M. and S. Ry. Co. Ltd., AIR 1929 Mad 746 , but that case is of no assistance as it turned on the special language which had been used in the Act and the notification which came up for consideration in that case. In fact, the expression that had to be interpreted was "property tax" and not tax on buildings and lands". We agree with learned counsel for the appellant that such assistance cannot be derived from the decision of this Court in Patel Gordhandas Hargorvindas v. Municipal Commr. Ahmedabad (1964) 2 SCR 608 = (AIR 1963 SC 1742 ) which was relied upon by the High Court. However, as we have held above, on the proper interpretation of the language used in the two Acts, the Rules, and the notification. and taking into account the circumstances under which the notification of 1917 was issued, the only conclusion that can be arrived at is that the Railway was made liable to this consolidated tax, so that the decision of the High Court is perfectly correct.
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this fresh notification as the liability of the Railway to pay that tax already existed under that notification of 1914.10. The second circumstance that we can take notice of is the historical background in which this notification of 26th July, 1917 was issued. It appears that, after the Rules for imposition of this consolidated tax came into force in 1916, the Municipality demanded payment of this consolidated tax from the G.I.P. Railway. Thereupon, the Agent of the G.I.P. Railway Company wrote a letter to the Secretary, Railway Board, Simla on the 1st December, 1916, stating that the Company did not agree that it should pay the new consolidated tax as it comprised a house tax and a water rate. The Company had its own arrangements for the supply of water and it was obviously unfair that it should be called upon to pay any tax which includes a water rate, when no municipal water was being consumed by the Railway at Lonavala The Secretary, Railway Board, forwarded this letter to the Secretary to the Government of Bombay, General Department, with a letter dated 12th December, 1916, enquiringwhether the Agents information was correct and, if so, whether the Bombay Government had any remarks to offer on the Agents contentions.On 11th May, 1917, the Secretary to the Government of Bombay replied to the Secretary, Railway Board, pointing out that, originally, the Municipality proposed to levy a general water rate on all houses, in addition to the existing house tax, but, on representations from property owners of Lonavala and Khandala it had decided to impose a consolidated rate on buildings and lands in lieu of the house-tax and the proposed general water rate Consequently, they were levying, in lieu of house-tax a consolidated rate, which included a general water rate, on sliding scale, on all properties situated within the municipal limits The water rate imposed was not intended to cover expenses on any service rendered in the nature of a general tax as opposed to a service tax. In equity, the Railway Companys property in Lonavala had no better right to exemption than the properties of private individuals who, although they did not take private pipe connections, were paying the general water rate. In the circumstances, a request was made to the Secretary, Railway Board, to move the Government of India to declare the Administration of the G.I.P. Railway liable to pay to the Lonavala Municipality the consolidated tax on buildings and lands in lieu of the house-tax in respect of the railway properties situated within the municipal limits. It was suggested that the Schedule annexed to the notification dated 13th May, 1914 may be amended accordingly. It was in pursuance of this move by the Bombay Government that the notification of 26th July, 1917 was issued by the Central Government. That the notification of 26th July, 191? was issued in pursuance of this correspondence is clarified by the Memorandum dated 17th August. 1917, with which a copy of the new notification was forwarded by the Government of India, Railway Department (Railway Board) to the Secretary to the Government of Bombay. These circumstances in which the notification of 26th July, 1917 was issued, make it plain that the Government of India, when they used the expression "tax on buildings and lands" in the notification. intended to make the G.I.P Railway liable to the consolidated tax which had been imposed by the Municipality under the Rules of 1916.11. The decision of the Bombay High Court in Borough Municipality, Ahmedabad v. Ahmedabad Manufacturing and Calico Printing Co. Ltd., AIR l939 Bom 478 on interpretation of sections 73 and 110 of the Act of 1925 also supports the view that we have taken above. The question that arose in that case was whether the right of an appeal envisaged by using the expression "in the case of a rate on buildings or lands or both" in section 110 could be availed of in respect of a general water rate imposed under clause (x) of section 73 (1) which described that tax as a general water rate imposed in the form of a rate assessed on buildings and lands. It was held that there was no distinction between a rate on buildings or lands and tax in the form of a rate assessed on buildings or lands.In the case before us, on that analogy, a consolidated tax assessed as a rate on buildings and lands cannot be distinguished from a tax on buildings and lands.12. Reference may also be made to a decision of the Allahabad High Court in Raza Buland Sugar Co., Ltd., Rampur v. Municipal Board, Rampur, AIR 1962 All 83 where it was held that a water rate is a tax on buildings and lands and is not, in fact, a service tax chargeable in respect of water supplied. Counsel for the appellant referred to a decision of the Madras High Court in Municipal Council, Cuddappah v. M. and S. Ry. Co. Ltd., AIR 1929 Mad 746 , but that case is of no assistance as it turned on the special language which had been used in the Act and the notification which came up for consideration in that case. In fact, the expression that had to be interpreted was "property tax" and not tax on buildings and lands". We agree with learned counsel for the appellant that such assistance cannot be derived from the decision of this Court in Patel Gordhandas Hargorvindas v. Municipal Commr. Ahmedabad (1964) 2 SCR 608 = (AIR 1963 SC 1742 ) which was relied upon by the High Court. However, as we have held above, on the proper interpretation of the language used in the two Acts, the Rules, and the notification. and taking into account the circumstances under which the notification of 1917 was issued, the only conclusion that can be arrived at is that the Railway was made liable to this consolidated tax, so that the decision of the High Court is perfectly correct.
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Deepak Sibal & Ors Vs. Punjab University And Another | other kinds of reservations validly made and that the remaining 30 per cent of the open seats at the least should be made available for admission to students on all-India basis irrespective of the State or the university from the which they come. We would adopt the same principle in case of regionwise reservation or preference and hold that not more than 70 per cent of the total number of open seats in the medical college or colleges situated within the area of jurisdiction of a particular university, after taking into account other kinds of reservations validly made, shall be reserved for students who have studied in schools or colleges situate within that region and at least 30 per cent of the open seats shall be available for admission to students who have studied in schools or colleges in other regions within the State. 29. In Pradeep Jain case ((1984) 3 SCC 654 : (1984) 3 SCR 942 ), although it was stated that the outer limit of such reservation should not exceed 70 per cent of the total number of open seats after taking into account other kinds of reservation validly made, yet the court expressed the view that this outer limit of 70 per cent needs to be reduced. In the instant case, the respondents have reserved 64 seats out or 150 seats for Scheduled Castes, Scheduled Tribes, backward classes etc. In our opinion, out of the remaining 86 seats, reservation of seats for regular or bona fide employees for admission to evening classes shall, in no event, exceed the limit of 50 per cent. The admission to the remaining 43 seats will be open to the general candidates on merit basis. Thus, while the respondents will be at liberty to reserve seats for regular or bona fide employees for admission to evening classes such reservation shall not exceed 50 per cent after deduction the number of seats reserved for Scheduled Castes, Scheduled Tribes, backward classes, etc. 30. The only question which remains to be considered is whether the appellants are entitled to any relief. It has been already noticed that the appellant, Deepak Sibal, was refused admission on the ground that he was an employee of a Public Limited Company which did not fall within the exclusive categories, as mentioned in the impugned rule, to which admission to the evening classes was restricted. The appellant was appointed on probation for a period of six months in Agro Chem Punjab Ltd. with effect from June 2, 1988. In proof of his appointment, the appellant produced before the respondents a certificate of employment dated June 1, 1988 issued by the Director of Agro Chem Punjab Ltd. According to the respondents, the certificate of employment produced by the appellant is not a genuine one inasmuch as the appellant was admitted to the first semester in the LL.B. Course of the Himachal Pradesh University at Simla on July 12, 1988. We fail to understand how it can be said that the certificate of employment of the appellant in Agro Chem Punjab Ltd. was not a genuine certificate, simply because the appellant was admitted in the first semester of the LL.B. Course of the Himachal Pradesh University on July 12, 1988. It is common knowledge that a candidate very often seeks admission in more than one college or university. The appellant also made an application for admission to the LL.B. Course in Himachal Pradesh University and he was admitted. It may be that after the respondents refused to admit the appellant in the evening classes, the appellant had to join LL.B. Course of the Himachal Pradesh University after giving up his service in Agro Chem Punjab Ltd. But, when the appellant made the application for admission in the evening classes of the Law Department of the Punjab University, he was in employment of Agro Chem Punjab Ltd. We do not find any reason to doubt the genuineness of the certificate of employment in Agro Chem Punjab Ltd. It is the case of the appellant that to prosecute his studies in LL.B. Course in Himachal Pradesh University will put him to great hardship and inconvenience and it will be convenient for him to prosecute his studies in the University of Punjab. Similarly the other appellant, Miss Ritu Khanna, was refused admission by the respondents on the ground that her appointment was purely temporary, although her position was 19 in the merit list. 31. It has been already found that the impugned rule is discriminatory and is violative of Article 14 of the Constitution and, as such, invalid. The refusal by the respondents to admit the appellants in the evening classes of the three year LL.B. Degree Course was illegal. The appellants are, therefore, entitled to be admitted in the evening classes. It is, however, submitted on behalf of the respondents that all the seats have been filled up and, accordingly, the appellants cannot be admitted. As injustice was done to appellants, it will be no answer to say that all the seats are filled up. 32. For the reasons aforesaid, the judgment of the High Court is set aside and the impugned rule for admission in the evening classes is struck down as discriminatory and violative of Article 14 of the Constitution and, accordingly, invalid. We, however, make it clear that the striking down of the impugned rule shall not, in any manner whatsoever, disturb the admissions already made for the session 1988-89. The respondents are directed to admit both the appellants in the second semester which has commenced from January 1988 and shall allow them to complete the three year LL.B. Degree Course, if not otherwise ineligible on the ground of unsatisfactory academic performance. As was directed by this Court in Ajay Hasia v. Khalid Mujib Sehravardi ((1981) 1 SCC 722 : 1981 SCC (L&S) 258 : (1981) 2 SCR 79 ), the seats allocated to the appellants will be in addition to the normal intake of students in the college. 3 | 1[ds]9. It is now well settled that Article 14 forbids class legislation, but does not forbid reasonable classification. Whether a classification is a permissible classification under Article 14 or not, two conditions must be satisfied, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the differentia must have a rational nexus to the object sought to be achieved by the statute in question14. It is difficult to accept the contention that the government employees or the employees of semi-government and other institutions, as mentioned in the impugned rule, stand on a different footing from the employees of private concerns, insofar as the question of admission to evening classes is concerned. It is true that the service conditions of employees of government/semi-government institutions etc. are different, and they may have greater security of service, but that hardly matters for the purpose of admission in the evening classes. The test is whether the employees of private establishments are equally in a disadvantageous position like the employees of government/semi-government institutions etc. in attending morning classes. There can be no doubt and it is not disputed that both of them stand on an equal footing and there is on difference between these two classes of employees in that regard. To exclude the employees of private establishments will not, therefore, satisfy the test of intelligible differentia that distinguishes the employees of government/semi-government institutions etc. grouped together from the employees of private establishments. It is true that a classification need not be made with mathematical precision but, if there be little or no difference between the persons or things which have been grouped together and those left out of the group, in that case, the classification cannot be said to be a reasonable one16. We are also unable to accept the contention of the respondents that such exclusion of the employees of private establishments is justified on the ground of administrative convenience. The decision in Pannalal Binjraj v. Union of India (1975 SCR 233 : AIR 1957 SC 397 ), relied on by the respondents does not, in our opinion, lay down any such proposition of law. In that case, the provision of Section 5(7-A) ofthe Income Tax Act, 1922 was, inter alia, challenged as ultra vires Article 14 of the Constitution inasmuch as it was discriminatory. Section 5(7-A) confers power on the Commissioner of Income Tax and the Central Board of Revenue, inter alia, to transfer any case from one Income Tax Officer to another. It has been observed by this Court that in order to minimise the inconvenience of the assessee, the authority concerned may transfer the case of such assessee to the Income Tax Officer who is nearest to the area where it would be convenient for the assessee to attend and if, on account of administrative exigencies, this is not possible and the assessee requests that the examination of accounts or evidence to be taken should be in a place convenient to him, the Income Tax Officer comply with the request of the assessee by holding the hearing at the place requested. It is manifestly clear from the observation that the power of transfer is not exercised for administrative convenience, but for the convenience of the assessee. In the instant case, there is no question of any administrative inconvenience. The respondents have not placed any material before the High Court or in this Court as to in how many cases they had come across such bogus certificates produced by private employees during the time the admission to evening classes was open also to private employees. It may be that there were one or two cases of production of bogus certificate, but that cannot be a ground for the exclusion of all private employees from the benefit of getting legal education in the evening classes18. In this connection, we may also examine another ground restricting the admission in the evening classes to the employees government/semi-government and other institutions, as mentioned in the impugned rule, namely, imparting of legal education to such employees. According to the respondents, imparting of legal education to the employees of government/semi-government and other institutions, as mentioned in the impugned rule, would be in public interest. Indeed, in the counter-affidavit filed in this Court on behalf of the respondents by the Registrar of the University, that is also the objective for framing the impugned rule. The counter-affidavit is, however, silent as to why imparting of legal education to the employees of government/semi-government institutions etc. would be in public interest. It is not understandable why government/semi-government employees in general should be imparted legal education and what sort of public interest would be served by such legal education. It may be that certain sections of government employees require legal education but, surely, Government employees in general do not require legal education19. A similar rule, which was framed by the Government of Kerala reserving 100 per cent seats to government and quasi-government employees irrespective of their category, came to be considered by the Kerala High Court in Jolly A. V. v. State of Kerala (AIR 1974 Ker 178 : 1974 Ker LT 94). In that case, it has been observed by the Kerala High Court that there may be some posts in government service, some even in public corporations which may require incumbents who may be able to perform their functions very efficiently with a legal background provided to them., but this cannot be said of all employees whether of the State Government or Central Government or of the public corporations or government owned companies. In our opinion, there is much force in the observation of the Kerala High Court. It cannot be laid down that only government employees require legal education and not private employees. Certain private sector employees may require legal education in the interest of the establishments of which they are employees. It is difficult to understand the logic of the rule restricting admission in the evening classes to employees of government/semi-government institutions etc. on the plea that such employees require legal education in public interest20. In considering the reasonableness of classification from the point of view of Article 14 of the Constitution, the court has also to consider the objective for such classification. If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable. In the instant case, the forgoing discussion reveals that the classification of the employees of government/semi-government institutions etc. by the impugned rule for the purpose of admission in the evening classes of three year LL.B. Degree Course to the exclusion of all other employees, is unreasonable and unjust, as it does not subserve any fair and logical objective. It is, however, submitted that classification in favour of government and public sector is a reasonable and valid classification. In support of that contention, the decision in Hindustan Paper Corpn. Ltd. v. Government of Kerala ((1986) 3 SCC 398 ), has been relied on by the learned counsel for the respondents. In that case, it has been observed that as far as government undertakings and companies are concerned, it has to be held that they form a class by the themselves, since any project that they may make would in the end result in the benefit to the members of the general public. The government and public sector employees cannot be equated with government undertakings and companies. The classification of government undertakings and companies may, in certain circumstances, be a reasonable classification satisfying the two tests mentioned above, but it is difficult to hold that the employees of government/semi-government institutions etc., as mentioned in the impugned rule, would also constitute a valid classification for the purpose of admission to evening classes of three year LL.B. Degree Course. The contention in this regard, in our opinion, is without any substance24. It follows from the above discussion that the impugned rule, with which we are concerned, having made a classification which cannot be justified on any reasonable basis, must be held to be discriminatory and violative of Article 14 of the Constitution. It is, however, submitted by Mr. P. P. Rao that in case the court holds against the constitutional validity of the impugned rule, the entire rule may not be quashed, but only such portion of it which is found to be discriminatory in nature and, as such, invalid. It is contended that if the impugned rule had not restricted the admission to evening classes to the employees of government/semi-government institutions etc. but had provided for admission to regular employees including employees of private sectors, the classification would have been a reasonable one and having a rational nexus to the object sought to be achieved by the rule, namely, to accommodate the regular employees in the evening classes, as they would be unable to attend the morning classes. Accordingly, it is submitted that instead of striking down the whole of the impugned rule, a full stop may be put after the words "regular employees" in the impugned rule and the remaining part of the rule after the said words can be struck down as discriminatory and violative of Article 14 of the Constitution. If that be done, the rule will be read as "Admission to evening classes is open only to regular employees". Prima facie it appears that this part, which is sought to be retained, is not severable from the remaining part of the rule. In R. M. D. Chamarbaugwalla v. Union of India (1957 SCR 930 : AIR 1957 SC 628 ), it has been laid down by this Court that if the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another then the invalidity of the portion must result in the invalidity in its entirely. In the instant case, the invalid portion is inextricably mixed up with the valid portion of the rule and, accordingly, the entire rule requires to be struck down. Our attention has, however, been drawn to a later decisions of this Court in B. Prabhakar Rao v. State of Andhra Pradesh (1985 Supp SCC 432 : 1986 SCC (L&S) 49). In this case, a bench of three Judges of this Court struck out the word not from the provisions of Clause 3(1) of Ordinance 24 of 1984 and Section 4(1) of the Act 3 of 1984 so as to bring those provisions to conform to the requirements of Article 14 of the Constitution. We do not think we should try to bring the impugned rule in conformity with the provision of Article 14 of the Constitution by putting a full stop after the words "regular employees" and striking down the remaining part of the impugned rule on the basis of the same principle as in Prabhakar Rao case (1985 Supp 432 : 1986 SCC (L&S) 49). For, it has been stated by Mr. P. P. Rao, learned counsel for the respondents, that the respondents will frame a fresh rule for admission in the evening classes in conformity with and in the light of the decision of this Court in the instant case26. In our opinion, the above contention is not without force. In this connection, we may refer to a decision of this Court in M. R. Balaji v. State of Mysore (1963 Supp 1 SCR 439 : AIR 1963 SC 649 ). In that case, the State of Mysore passed an order reserving 68 per cent of seats in the engineering and medical colleges and other technical institution for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes, and left only 32 per cent of seats for the merit pool. In striking down such reservation, it was observed by this Court that it would be extremely unreasonable to assume that in enacting Article 15(4), Parliament intended to provide that where the advancement of the backward classes or the Scheduled Castes and Scheduled Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored. Speaking generally and in a broad way, it was observed by this Court that a special provision should be less than 50 per cent and the actual percentage must depend upon the relevant prevailing circumstances in each case. Thus, the provision of Article 15(4) does not contemplate to reserve all the seats or the majority of the seats in an educational institution at the cost of the rest of the society. The same principle should also apply with equal force in the case of cent per cent reservation of seats in educational institutions for a certain class of persons to the exclusion of meritorious candidatesIt has been already noticed that the appellant, Deepak Sibal, was refused admission on the ground that he was an employee of a Public Limited Company which did not fall within the exclusive categories, as mentioned in the impugned rule, to which admission to the evening classes was restricted. The appellant was appointed on probation for a period of six months in Agro Chem Punjab Ltd. with effect from June 2, 1988. In proof of his appointment, the appellant produced before the respondents a certificate of employment dated June 1, 1988 issued by the Director of Agro Chem Punjab Ltd. According to the respondents, the certificate of employment produced by the appellant is not a genuine one inasmuch as the appellant was admitted to the first semester in the LL.B. Course of the Himachal Pradesh University at Simla on July 12, 1988. We fail to understand how it can be said that the certificate of employment of the appellant in Agro Chem Punjab Ltd. was not a genuine certificate, simply because the appellant was admitted in the first semester of the LL.B. Course of the Himachal Pradesh University on July 12, 1988. It is common knowledge that a candidate very often seeks admission in more than one college or university. The appellant also made an application for admission to the LL.B. Course in Himachal Pradesh University and he was admitted. It may be that after the respondents refused to admit the appellant in the evening classes, the appellant had to join LL.B. Course of the Himachal Pradesh University after giving up his service in Agro Chem Punjab Ltd. But, when the appellant made the application for admission in the evening classes of the Law Department of the Punjab University, he was in employment of Agro Chem Punjab Ltd. We do not find any reason to doubt the genuineness of the certificate of employment in Agro Chem Punjab Ltd. It is the case of the appellant that to prosecute his studies in LL.B. Course in Himachal Pradesh University will put him to great hardship and inconvenience and it will be convenient for him to prosecute his studies in the University of Punjab. Similarly the other appellant, Miss Ritu Khanna, was refused admission by the respondents on the ground that her appointment was purely temporary, although her position was 19 in the merit list31. It has been already found that the impugned rule is discriminatory and is violative of Article 14 of the Constitution and, as such, invalid. The refusal by the respondents to admit the appellants in the evening classes of the three year LL.B. Degree Course was illegal. The appellants are, therefore, entitled to be admitted in the evening classes. It is, however, submitted on behalf of the respondents that all the seats have been filled up and, accordingly, the appellants cannot be admitted. As injustice was done to appellants, it will be no answer to say that all the seats are filled up32. For the reasons aforesaid, the judgment of the High Court is set aside and the impugned rule for admission in the evening classes is struck down as discriminatory and violative of Article 14 of the Constitution and, accordingly, invalid. We, however, make it clear that the striking down of the impugned rule shall not, in any manner whatsoever, disturb the admissions already made for the session 1988-89. The respondents are directed to admit both the appellants in the second semester which has commenced from January 1988 and shall allow them to complete the three year LL.B. Degree Course, if not otherwise ineligible on the ground of unsatisfactory academic performance. As was directed by this Court in Ajay Hasia v. Khalid Mujib Sehravardi ((1981) 1 SCC 722 : 1981 SCC (L&S) 258 : (1981) 2 SCR 79 ), the seats allocated to the appellants will be in addition to the normal intake of students in the college | 1 | 7,375 | 3,082 | ### Instruction:
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other kinds of reservations validly made and that the remaining 30 per cent of the open seats at the least should be made available for admission to students on all-India basis irrespective of the State or the university from the which they come. We would adopt the same principle in case of regionwise reservation or preference and hold that not more than 70 per cent of the total number of open seats in the medical college or colleges situated within the area of jurisdiction of a particular university, after taking into account other kinds of reservations validly made, shall be reserved for students who have studied in schools or colleges situate within that region and at least 30 per cent of the open seats shall be available for admission to students who have studied in schools or colleges in other regions within the State. 29. In Pradeep Jain case ((1984) 3 SCC 654 : (1984) 3 SCR 942 ), although it was stated that the outer limit of such reservation should not exceed 70 per cent of the total number of open seats after taking into account other kinds of reservation validly made, yet the court expressed the view that this outer limit of 70 per cent needs to be reduced. In the instant case, the respondents have reserved 64 seats out or 150 seats for Scheduled Castes, Scheduled Tribes, backward classes etc. In our opinion, out of the remaining 86 seats, reservation of seats for regular or bona fide employees for admission to evening classes shall, in no event, exceed the limit of 50 per cent. The admission to the remaining 43 seats will be open to the general candidates on merit basis. Thus, while the respondents will be at liberty to reserve seats for regular or bona fide employees for admission to evening classes such reservation shall not exceed 50 per cent after deduction the number of seats reserved for Scheduled Castes, Scheduled Tribes, backward classes, etc. 30. The only question which remains to be considered is whether the appellants are entitled to any relief. It has been already noticed that the appellant, Deepak Sibal, was refused admission on the ground that he was an employee of a Public Limited Company which did not fall within the exclusive categories, as mentioned in the impugned rule, to which admission to the evening classes was restricted. The appellant was appointed on probation for a period of six months in Agro Chem Punjab Ltd. with effect from June 2, 1988. In proof of his appointment, the appellant produced before the respondents a certificate of employment dated June 1, 1988 issued by the Director of Agro Chem Punjab Ltd. According to the respondents, the certificate of employment produced by the appellant is not a genuine one inasmuch as the appellant was admitted to the first semester in the LL.B. Course of the Himachal Pradesh University at Simla on July 12, 1988. We fail to understand how it can be said that the certificate of employment of the appellant in Agro Chem Punjab Ltd. was not a genuine certificate, simply because the appellant was admitted in the first semester of the LL.B. Course of the Himachal Pradesh University on July 12, 1988. It is common knowledge that a candidate very often seeks admission in more than one college or university. The appellant also made an application for admission to the LL.B. Course in Himachal Pradesh University and he was admitted. It may be that after the respondents refused to admit the appellant in the evening classes, the appellant had to join LL.B. Course of the Himachal Pradesh University after giving up his service in Agro Chem Punjab Ltd. But, when the appellant made the application for admission in the evening classes of the Law Department of the Punjab University, he was in employment of Agro Chem Punjab Ltd. We do not find any reason to doubt the genuineness of the certificate of employment in Agro Chem Punjab Ltd. It is the case of the appellant that to prosecute his studies in LL.B. Course in Himachal Pradesh University will put him to great hardship and inconvenience and it will be convenient for him to prosecute his studies in the University of Punjab. Similarly the other appellant, Miss Ritu Khanna, was refused admission by the respondents on the ground that her appointment was purely temporary, although her position was 19 in the merit list. 31. It has been already found that the impugned rule is discriminatory and is violative of Article 14 of the Constitution and, as such, invalid. The refusal by the respondents to admit the appellants in the evening classes of the three year LL.B. Degree Course was illegal. The appellants are, therefore, entitled to be admitted in the evening classes. It is, however, submitted on behalf of the respondents that all the seats have been filled up and, accordingly, the appellants cannot be admitted. As injustice was done to appellants, it will be no answer to say that all the seats are filled up. 32. For the reasons aforesaid, the judgment of the High Court is set aside and the impugned rule for admission in the evening classes is struck down as discriminatory and violative of Article 14 of the Constitution and, accordingly, invalid. We, however, make it clear that the striking down of the impugned rule shall not, in any manner whatsoever, disturb the admissions already made for the session 1988-89. The respondents are directed to admit both the appellants in the second semester which has commenced from January 1988 and shall allow them to complete the three year LL.B. Degree Course, if not otherwise ineligible on the ground of unsatisfactory academic performance. As was directed by this Court in Ajay Hasia v. Khalid Mujib Sehravardi ((1981) 1 SCC 722 : 1981 SCC (L&S) 258 : (1981) 2 SCR 79 ), the seats allocated to the appellants will be in addition to the normal intake of students in the college. 3
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14 of the Constitution by putting a full stop after the words "regular employees" and striking down the remaining part of the impugned rule on the basis of the same principle as in Prabhakar Rao case (1985 Supp 432 : 1986 SCC (L&S) 49). For, it has been stated by Mr. P. P. Rao, learned counsel for the respondents, that the respondents will frame a fresh rule for admission in the evening classes in conformity with and in the light of the decision of this Court in the instant case26. In our opinion, the above contention is not without force. In this connection, we may refer to a decision of this Court in M. R. Balaji v. State of Mysore (1963 Supp 1 SCR 439 : AIR 1963 SC 649 ). In that case, the State of Mysore passed an order reserving 68 per cent of seats in the engineering and medical colleges and other technical institution for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes, and left only 32 per cent of seats for the merit pool. In striking down such reservation, it was observed by this Court that it would be extremely unreasonable to assume that in enacting Article 15(4), Parliament intended to provide that where the advancement of the backward classes or the Scheduled Castes and Scheduled Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored. Speaking generally and in a broad way, it was observed by this Court that a special provision should be less than 50 per cent and the actual percentage must depend upon the relevant prevailing circumstances in each case. Thus, the provision of Article 15(4) does not contemplate to reserve all the seats or the majority of the seats in an educational institution at the cost of the rest of the society. The same principle should also apply with equal force in the case of cent per cent reservation of seats in educational institutions for a certain class of persons to the exclusion of meritorious candidatesIt has been already noticed that the appellant, Deepak Sibal, was refused admission on the ground that he was an employee of a Public Limited Company which did not fall within the exclusive categories, as mentioned in the impugned rule, to which admission to the evening classes was restricted. The appellant was appointed on probation for a period of six months in Agro Chem Punjab Ltd. with effect from June 2, 1988. In proof of his appointment, the appellant produced before the respondents a certificate of employment dated June 1, 1988 issued by the Director of Agro Chem Punjab Ltd. According to the respondents, the certificate of employment produced by the appellant is not a genuine one inasmuch as the appellant was admitted to the first semester in the LL.B. Course of the Himachal Pradesh University at Simla on July 12, 1988. We fail to understand how it can be said that the certificate of employment of the appellant in Agro Chem Punjab Ltd. was not a genuine certificate, simply because the appellant was admitted in the first semester of the LL.B. Course of the Himachal Pradesh University on July 12, 1988. It is common knowledge that a candidate very often seeks admission in more than one college or university. The appellant also made an application for admission to the LL.B. Course in Himachal Pradesh University and he was admitted. It may be that after the respondents refused to admit the appellant in the evening classes, the appellant had to join LL.B. Course of the Himachal Pradesh University after giving up his service in Agro Chem Punjab Ltd. But, when the appellant made the application for admission in the evening classes of the Law Department of the Punjab University, he was in employment of Agro Chem Punjab Ltd. We do not find any reason to doubt the genuineness of the certificate of employment in Agro Chem Punjab Ltd. It is the case of the appellant that to prosecute his studies in LL.B. Course in Himachal Pradesh University will put him to great hardship and inconvenience and it will be convenient for him to prosecute his studies in the University of Punjab. Similarly the other appellant, Miss Ritu Khanna, was refused admission by the respondents on the ground that her appointment was purely temporary, although her position was 19 in the merit list31. It has been already found that the impugned rule is discriminatory and is violative of Article 14 of the Constitution and, as such, invalid. The refusal by the respondents to admit the appellants in the evening classes of the three year LL.B. Degree Course was illegal. The appellants are, therefore, entitled to be admitted in the evening classes. It is, however, submitted on behalf of the respondents that all the seats have been filled up and, accordingly, the appellants cannot be admitted. As injustice was done to appellants, it will be no answer to say that all the seats are filled up32. For the reasons aforesaid, the judgment of the High Court is set aside and the impugned rule for admission in the evening classes is struck down as discriminatory and violative of Article 14 of the Constitution and, accordingly, invalid. We, however, make it clear that the striking down of the impugned rule shall not, in any manner whatsoever, disturb the admissions already made for the session 1988-89. The respondents are directed to admit both the appellants in the second semester which has commenced from January 1988 and shall allow them to complete the three year LL.B. Degree Course, if not otherwise ineligible on the ground of unsatisfactory academic performance. As was directed by this Court in Ajay Hasia v. Khalid Mujib Sehravardi ((1981) 1 SCC 722 : 1981 SCC (L&S) 258 : (1981) 2 SCR 79 ), the seats allocated to the appellants will be in addition to the normal intake of students in the college
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Maulana Shamsuddin Vs. Khushi Lal and Others | Section 167 of the Bhopal Act of 1932 dealing With the restriction ill the rights of the Jagirdars and Muafidar to transfer such rights or create encumbrances on them. According to the said Section no Jagirdar or Muafidar could "transfer his rights as Jagirdar or muafidar, or, except for such period as he is in possession of his jagir or muafi create an encumbrance o n the income thereof." But inducting a person as Shikmi on the land was not prohibited under Section 167. On the other hand, Section 194 provide(l that all occupant could make a lease of his holding and under certain circumstances it could n(lt be for a term of more than 12 years. It was then argued that the right of a Muafidar being in the nature of a life grant was valid only for the Life time of the Muafidar. So the Muafidar could not induct a person as Shikmi who ultimately could become an occupancy tenant entitled to conferment of Bhumisavami rights later on. This argument has to be staled merely to be rejected. It may well be that the right of a Shikmi would not have lasted beyond the duration of the right of the Muafidar. But then, his rights were enlarged by operation or the welfare legislation enacted by the State Legislature for the benefit of the cultivators of the soil in the year 1959. Section 185(1)(iv)(b) of the M.P. Code of 1959 says:-"(1) Every per son who at the coming into force of this Code holds- (iv) in the Bhopal region- (b) any land as a shikmi from an occupant as defined in the Bhopal State Land Revenue Act, 1932 (IV of 1932): shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code." 9. As held by us above the appellant was an occupant as defined in the Bhopal Act of 1932 and thus under clause (c) of Section 158 on the coming into force of the Code he became a Bhumiswami. But his Bhumiswami rights were liable to be conferred, under certain conditions, on the occupancy tenant under Section 190. As a matter of fact in accordance with the said provision the Bhumiswami rights were conferred on respondent no. 1 on payment of compensation being in the amount of 15 times of the land revenue for payment to the appellant. Our attention was drawn to a recital of facts in the Statement of the case of some of the respondents that the appellant had withdrawn the said amount of compensation. But we are not resting our judgment on that ground as in our opinion, whether he has withdrawn the amount of co mpensation or not, he cannot challenge the conferment of his Bhumiswami rights on respondent no. l. which have been validly and legally conferred.We may now briefly deal with a few more short submissions of the appellant. In section 185(1)(iv)(a) of the M.P. Code of 1959 it is provided that if a person who at the time of coming into force of tba said Code was holding any land as a sub-tenant as defined in the Bhopal State Sub- tenants Protection Act, 1952 shall also be calle d an occupancy tenant. A copy of this Act could not be made available for our perusal. But what we get from the order of the Board of Revenue is that a Sub-tenant as defined in the Bhopal Act of 1952 means a person who holds a parcel of khud kasta land from a Jagirdar. Along with this our attention was also drawn to the Bhopal State Sub Tenants (of occupants) Protection Act. 1954. In this Act, section 2(b) runs thus: -"The expression "occupant" shall have the same meaning as in the Bhopal State Land Revenue Act, 1932 (IV of 1932) and, for the purposes of this Act, it should also include a muafidar, as defined in Bhopal State Land Revenue Act, 1932 (IV of 1932)". 10. In other sections of the said Act protection against ejectment was given to the Shikmis. The argument was that protection to the sub-tenants of Jagirdars was given in the Bhopal Act of 1952 and protection to such persons was given in case of sub-tenants of Muafidar unde r the Bhopal Act of 1954 by including Muafidar in the expression occupant occurring in the said Act. Counsel, therefore, submitted that if the term occupant in the Bhopal Act of 1932 had included a Muafidar then there was no necess ity of expressly and separately including a Muafidar in the definition of the said expression. in the Act of 1954. In our opinion this argument has no substance. It may be by way of abundant precaution or for putting the matter beyond an y shadow of doubt that the expression occupant was defined in a comprehensive manner in the Bhopal Act of 1954. Section 3 of the said Act shows that even a Muafidar could sub-let a land to a person and induct hi as a Shikmi prior to the coming into force of this Act. Such a Shikmi got the protection against ejectment by operation of law engrafted in the Bhopal Act of 1954. After the passing of this Act? he no longer could be said to be a Shikmi only during the life time of the Muafidar but was so even beyond it.The counsel for the appellant called our attention to a decision of this Court in Begum Suriya Rashid and others v. Stale of Andhra Pradesh([1969]1 SCR 869 =1971 MPLJ. 352). In this case it was held that the muafi grants to the predecess or-in-interest of the appellants before the Supreme Court were not hereditary or perpetual and the appellants could not claim title as Muafidars even though some contradictory arabic expressions had keen used in the document of grant. This decision does not advance the case of the appellant any further. 11. | 0[ds]Prima facie the argument, as presented, for the appellant appeared to have substance and force but on a close scrutiny we had no difficulty in rejecting itIt would thus be seen that if pursuant to the grant made by His Highness the Ruler of Bhopal, Governments right to receive land revenue was assigned to the grantee then he was called a Jagirdar and it was relinquished then the person in whose favour such relinquishment was made was called Muafidar. Under the first part of the definition of "occupant" given in sub-section (IS) a person who holds land direct from Government would be an occupant and being not a person in whose favour the right to receive land revenue has either bee n assigned or relinquished will be required to pay to the Government land revenue or rent. We are using both the words revenue and rent on the assumption that such an occupant being neither a Jagirdar nor a Muafidar would be required to pay some money to the Government for being in occupation of the land. Under the second part of the definition a Jagirdar or a Muafidar would also be holding land direct from Government but because the right of collecting land revenue has either been assigned or relinquished, strictly speaking, he does not hold land direct from the Government in the sense of paying any land revenue or rent to it because the Government has parted with the right to collect land revenue from him. We are of the opinion, in agreement with the High Court, that on a careful analysis of the definition of the term "occupant" in section 2(15), it is legitimate to conclude that even a Jagirdar or a Muafidar is an occupant. He holds land under the Government; on the resumption of the Jagir or the Muafirights by the Government the land reverts back to it. Payment of land revenue or rent for holding land under the Government was not a sine-qua-non for making the holder of the land an occupant."Rent" is de fined in sub-section (19) of Section 2 of the Bhopal Act of 1932 to mean "whatever is payable to an occupant in money, kind or service by a shikmi for the right to use land." This would show that strictly speaking a person holding the land direct from the Government within the meaning of the first part of the definition in sub- section (IS) is not to pay any money to the Government in the shape of rent but what he will be required to pay would be the land revenue. But a Jagirdar or a Muafidar holding the land under the Government is not required to pay any land revenue. sub-section (21) defines "Shikmi" to mean "a person who holds land from an occupant and is, or but for a contract, would be liable to pay rent for such land to that occupant, but does not include a mortgagee or a person holding land directly from Government." Respondent no. 1 was inducted upon the land by the appellant in the year 1958. Since then he had been cultivating the land. He could not but be a Shikmi within the meaning of sub-section (21 ) . Mr. Harbans Singh was not right in saying that he was a mere cultivator and was cultivating the land not as a sub-tenant or a Shikmi but must be doing so under some special arrangement of cultivating the land as a servant of the appellant or the like. There is no warrant for such a contentionWe do not feel inclined to agree with the High Court that the appellant became occupant under section 52(2) of the Bhopal Act of 1932 because he was a person who was entered into settlement records prior to the coming into force of that Act. Firstly it is not clear whether the facts so stated in the judgment of the High Court are (quite correct, and, secondly, it is admitted on all hands that the appellant was a Muafidar and, therefore, in our opinion he was an occupant within the meaning of Section 2(15)As held by us above the appellant was an occupant as defined in the Bhopal Act of 1932 and thus under clause (c) of Section 158 on the coming into force of the Code he became a Bhumiswami. But his Bhumiswami rights were liable to be conferred, under certain conditions, on the occupancy tenant under Section 190. As a matter of fact in accordance with the said provision the Bhumiswami rights were conferred on respondent no. 1 on payment of compensation being in the amount of 15 times of the land revenue for payment to the appellant. Our attention was drawn to a recital of facts in the Statement of the case of some of the respondents that the appellant had withdrawn the said amount of compensation. But we are not resting our judgment on that ground as in our opinion, whether he has withdrawn the amount of co mpensation or not, he cannot challenge the conferment of his Bhumiswami rights on respondent no. l. which have been validly and legally conferred.We may now briefly deal with a few more short submissions of the appellant. In section 185(1)(iv)(a) of the M.P. Code of 1959 it is provided that if a person who at the time of coming into force of tba said Code was holding any land as a sub-tenant as defined in the Bhopal State Sub- tenants Protection Act, 1952 shall also be calle d an occupancy tenant. A copy of this Act could not be made available for our perusal. But what we get from the order of the Board of Revenue is that a Sub-tenant as defined in the Bhopal Act of 1952 means a person who holds a parcel of khud kasta land from a Jagirdar. Along with this our attention was also drawn to the Bhopal State Sub Tenants (of occupants) Protection Act. 1954. In this Act, section 2(b) runs thus: -"The expression "occupant" shall have the same meaning as in the Bhopal State Land Revenue Act, 1932 (IV of 1932) and, for the purposes of this Act, it should also include a muafidar, as defined in Bhopal State Land Revenue Act, 1932 (IV of 1932)"In other sections of the said Act protection against ejectment was given to the Shikmis. The argument was that protection to the sub-tenants of Jagirdars was given in the Bhopal Act of 1952 and protection to such persons was given in case of sub-tenants of Muafidar unde r the Bhopal Act of 1954 by including Muafidar in the expression occupant occurring in the said Act. Counsel, therefore, submitted that if the term occupant in the Bhopal Act of 1932 had included a Muafidar then there was no necess ity of expressly and separately including a Muafidar in the definition of the said expression. in the Act of 1954. In our opinion this argument has no substance. It may be by way of abundant precaution or for putting the matter beyond an y shadow of doubt that the expression occupant was defined in a comprehensive manner in the Bhopal Act of 1954. Section 3 of the said Act shows that even a Muafidar could sub-let a land to a person and induct hi as a Shikmi prior to the coming into force of this Act. Such a Shikmi got the protection against ejectment by operation of law engrafted in the Bhopal Act of 1954. After the passing of this Act? he no longer could be said to be a Shikmi only during the life time of the Muafidar but was so even beyond it.The counsel for the appellant called our attention to a decision of this Court in Begum Suriya Rashid and others v. Stale of Andhra Pradesh([1969]1 SCR 869 =1971 MPLJ. 352). In this case it was held that the muafi grants to the predecess or-in-interest of the appellants before the Supreme Court were not hereditary or perpetual and the appellants could not claim title as Muafidars even though some contradictory arabic expressions had keen used in the document of grant. This decision does not advance the case of the appellant any furtherIt would thus be seen that if pursuant to the grant made by His Highness the Ruler of Bhopal, Governments right to receive land revenue was assigned to the grantee then he was called a Jagirdar and it was relinquished then the person in whose favour such relinquishment was made was called Muafidar. Under the first part of the definition of "occupant" given inn (IS) a person who holds land direct from Government would be an occupant and being not a person in whose favour the right to receive land revenue has either bee n assigned or relinquished will be required to pay to the Government land revenue or rent. We are using both the words revenue and rent on the assumption that such an occupant being neither a Jagirdar nor a Muafidar would be required to pay some money to the Government for being in occupation of the land. Under the second part of the definition a Jagirdar or a Muafidar would also be holding land direct from Government but because the right of collecting land revenue has either been assigned or relinquished, strictly speaking, he does not hold land direct from the Government in the sense of paying any land revenue or rent to it because the Government has parted with the right to collect land revenue from him. We are of the opinion, in agreement with the High Court, that on a careful analysis of the definition of the term "occupant" in section 2(15), it is legitimate to conclude that even a Jagirdar or a Muafidar is an occupant. He holds land under the Government; on the resumption of the Jagir or the Muafirights by the Government the land reverts back to it. Payment of land revenue or rent for holding land under the Government was not an for making the holder of the land an occupant."Rent" is de fined inn (19) of Section 2 of the Bhopal Act of 1932 to mean "whatever is payable to an occupant in money, kind or service by a shikmi for the right to use land." This would show that strictly speaking a person holding the land direct from the Government within the meaning of the first part of the definition in subsection (IS) is not to pay any money to the Government in the shape of rent but what he will be required to pay would be the land revenue. But a Jagirdar or a Muafidar holding the land under the Government is not required to pay any land revenue.n (21) defines "Shikmi" to mean "a person who holds land from an occupant and is, or but for a contract, would be liable to pay rent for such land to that occupant, but does not include a mortgagee or a person holding land directly from Government." Respondent no. 1 was inducted upon the land by the appellant in the year 1958. Since then he had been cultivating the land. He could not but be a Shikmi within the meaning ofn (21 ) . Mr. Harbans Singh was not right in saying that he was a mere cultivator and was cultivating the land not as at or a Shikmi but must be doing so under some special arrangement of cultivating the land as a servant of the appellant or the like. There is no warrant for such a contentionThis section lends support to the view which we have expressed above that a person holding land directly under the Government and not being a Jagirdar or a Muafidar will be liable to pay land revenue to the Government in whatever name the payment of money may be described such as premium, rent,The High Court in its judgment has adverted to some sections contained in Chapter VI of the Bhopal Act of 1932. Section 51 provided for disposal of unoccupied land. Subsection (1) of section 52 says that a person acquiring the right to occupy land under section 51 will be called an occupant of such land and undert ion (2) all persons who, prior to the commencement of this Act, had been entered in settlement records as responsible for the payment of land revenue to the Government, or who, but for a special arrangement, would have been to responsible, would be deemed to be occupants within the meaning of Section 52. In our opinion this special arrangement mentioned inn (2) cannot be squarely equated with the assignment or relinquishment of the right to receive land revenue envisaged by the Bhopal Act of 1932. | 0 | 3,305 | 2,331 | ### Instruction:
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Section 167 of the Bhopal Act of 1932 dealing With the restriction ill the rights of the Jagirdars and Muafidar to transfer such rights or create encumbrances on them. According to the said Section no Jagirdar or Muafidar could "transfer his rights as Jagirdar or muafidar, or, except for such period as he is in possession of his jagir or muafi create an encumbrance o n the income thereof." But inducting a person as Shikmi on the land was not prohibited under Section 167. On the other hand, Section 194 provide(l that all occupant could make a lease of his holding and under certain circumstances it could n(lt be for a term of more than 12 years. It was then argued that the right of a Muafidar being in the nature of a life grant was valid only for the Life time of the Muafidar. So the Muafidar could not induct a person as Shikmi who ultimately could become an occupancy tenant entitled to conferment of Bhumisavami rights later on. This argument has to be staled merely to be rejected. It may well be that the right of a Shikmi would not have lasted beyond the duration of the right of the Muafidar. But then, his rights were enlarged by operation or the welfare legislation enacted by the State Legislature for the benefit of the cultivators of the soil in the year 1959. Section 185(1)(iv)(b) of the M.P. Code of 1959 says:-"(1) Every per son who at the coming into force of this Code holds- (iv) in the Bhopal region- (b) any land as a shikmi from an occupant as defined in the Bhopal State Land Revenue Act, 1932 (IV of 1932): shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code." 9. As held by us above the appellant was an occupant as defined in the Bhopal Act of 1932 and thus under clause (c) of Section 158 on the coming into force of the Code he became a Bhumiswami. But his Bhumiswami rights were liable to be conferred, under certain conditions, on the occupancy tenant under Section 190. As a matter of fact in accordance with the said provision the Bhumiswami rights were conferred on respondent no. 1 on payment of compensation being in the amount of 15 times of the land revenue for payment to the appellant. Our attention was drawn to a recital of facts in the Statement of the case of some of the respondents that the appellant had withdrawn the said amount of compensation. But we are not resting our judgment on that ground as in our opinion, whether he has withdrawn the amount of co mpensation or not, he cannot challenge the conferment of his Bhumiswami rights on respondent no. l. which have been validly and legally conferred.We may now briefly deal with a few more short submissions of the appellant. In section 185(1)(iv)(a) of the M.P. Code of 1959 it is provided that if a person who at the time of coming into force of tba said Code was holding any land as a sub-tenant as defined in the Bhopal State Sub- tenants Protection Act, 1952 shall also be calle d an occupancy tenant. A copy of this Act could not be made available for our perusal. But what we get from the order of the Board of Revenue is that a Sub-tenant as defined in the Bhopal Act of 1952 means a person who holds a parcel of khud kasta land from a Jagirdar. Along with this our attention was also drawn to the Bhopal State Sub Tenants (of occupants) Protection Act. 1954. In this Act, section 2(b) runs thus: -"The expression "occupant" shall have the same meaning as in the Bhopal State Land Revenue Act, 1932 (IV of 1932) and, for the purposes of this Act, it should also include a muafidar, as defined in Bhopal State Land Revenue Act, 1932 (IV of 1932)". 10. In other sections of the said Act protection against ejectment was given to the Shikmis. The argument was that protection to the sub-tenants of Jagirdars was given in the Bhopal Act of 1952 and protection to such persons was given in case of sub-tenants of Muafidar unde r the Bhopal Act of 1954 by including Muafidar in the expression occupant occurring in the said Act. Counsel, therefore, submitted that if the term occupant in the Bhopal Act of 1932 had included a Muafidar then there was no necess ity of expressly and separately including a Muafidar in the definition of the said expression. in the Act of 1954. In our opinion this argument has no substance. It may be by way of abundant precaution or for putting the matter beyond an y shadow of doubt that the expression occupant was defined in a comprehensive manner in the Bhopal Act of 1954. Section 3 of the said Act shows that even a Muafidar could sub-let a land to a person and induct hi as a Shikmi prior to the coming into force of this Act. Such a Shikmi got the protection against ejectment by operation of law engrafted in the Bhopal Act of 1954. After the passing of this Act? he no longer could be said to be a Shikmi only during the life time of the Muafidar but was so even beyond it.The counsel for the appellant called our attention to a decision of this Court in Begum Suriya Rashid and others v. Stale of Andhra Pradesh([1969]1 SCR 869 =1971 MPLJ. 352). In this case it was held that the muafi grants to the predecess or-in-interest of the appellants before the Supreme Court were not hereditary or perpetual and the appellants could not claim title as Muafidars even though some contradictory arabic expressions had keen used in the document of grant. This decision does not advance the case of the appellant any further. 11.
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Bhopal Act of 1932 had included a Muafidar then there was no necess ity of expressly and separately including a Muafidar in the definition of the said expression. in the Act of 1954. In our opinion this argument has no substance. It may be by way of abundant precaution or for putting the matter beyond an y shadow of doubt that the expression occupant was defined in a comprehensive manner in the Bhopal Act of 1954. Section 3 of the said Act shows that even a Muafidar could sub-let a land to a person and induct hi as a Shikmi prior to the coming into force of this Act. Such a Shikmi got the protection against ejectment by operation of law engrafted in the Bhopal Act of 1954. After the passing of this Act? he no longer could be said to be a Shikmi only during the life time of the Muafidar but was so even beyond it.The counsel for the appellant called our attention to a decision of this Court in Begum Suriya Rashid and others v. Stale of Andhra Pradesh([1969]1 SCR 869 =1971 MPLJ. 352). In this case it was held that the muafi grants to the predecess or-in-interest of the appellants before the Supreme Court were not hereditary or perpetual and the appellants could not claim title as Muafidars even though some contradictory arabic expressions had keen used in the document of grant. This decision does not advance the case of the appellant any furtherIt would thus be seen that if pursuant to the grant made by His Highness the Ruler of Bhopal, Governments right to receive land revenue was assigned to the grantee then he was called a Jagirdar and it was relinquished then the person in whose favour such relinquishment was made was called Muafidar. Under the first part of the definition of "occupant" given inn (IS) a person who holds land direct from Government would be an occupant and being not a person in whose favour the right to receive land revenue has either bee n assigned or relinquished will be required to pay to the Government land revenue or rent. We are using both the words revenue and rent on the assumption that such an occupant being neither a Jagirdar nor a Muafidar would be required to pay some money to the Government for being in occupation of the land. Under the second part of the definition a Jagirdar or a Muafidar would also be holding land direct from Government but because the right of collecting land revenue has either been assigned or relinquished, strictly speaking, he does not hold land direct from the Government in the sense of paying any land revenue or rent to it because the Government has parted with the right to collect land revenue from him. We are of the opinion, in agreement with the High Court, that on a careful analysis of the definition of the term "occupant" in section 2(15), it is legitimate to conclude that even a Jagirdar or a Muafidar is an occupant. He holds land under the Government; on the resumption of the Jagir or the Muafirights by the Government the land reverts back to it. Payment of land revenue or rent for holding land under the Government was not an for making the holder of the land an occupant."Rent" is de fined inn (19) of Section 2 of the Bhopal Act of 1932 to mean "whatever is payable to an occupant in money, kind or service by a shikmi for the right to use land." This would show that strictly speaking a person holding the land direct from the Government within the meaning of the first part of the definition in subsection (IS) is not to pay any money to the Government in the shape of rent but what he will be required to pay would be the land revenue. But a Jagirdar or a Muafidar holding the land under the Government is not required to pay any land revenue.n (21) defines "Shikmi" to mean "a person who holds land from an occupant and is, or but for a contract, would be liable to pay rent for such land to that occupant, but does not include a mortgagee or a person holding land directly from Government." Respondent no. 1 was inducted upon the land by the appellant in the year 1958. Since then he had been cultivating the land. He could not but be a Shikmi within the meaning ofn (21 ) . Mr. Harbans Singh was not right in saying that he was a mere cultivator and was cultivating the land not as at or a Shikmi but must be doing so under some special arrangement of cultivating the land as a servant of the appellant or the like. There is no warrant for such a contentionThis section lends support to the view which we have expressed above that a person holding land directly under the Government and not being a Jagirdar or a Muafidar will be liable to pay land revenue to the Government in whatever name the payment of money may be described such as premium, rent,The High Court in its judgment has adverted to some sections contained in Chapter VI of the Bhopal Act of 1932. Section 51 provided for disposal of unoccupied land. Subsection (1) of section 52 says that a person acquiring the right to occupy land under section 51 will be called an occupant of such land and undert ion (2) all persons who, prior to the commencement of this Act, had been entered in settlement records as responsible for the payment of land revenue to the Government, or who, but for a special arrangement, would have been to responsible, would be deemed to be occupants within the meaning of Section 52. In our opinion this special arrangement mentioned inn (2) cannot be squarely equated with the assignment or relinquishment of the right to receive land revenue envisaged by the Bhopal Act of 1932.
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M.C. Agarwal & Another Vs. State of Rajasthan & Others | their seniority should be determined in accordance with the ranking made by the Selection Committee and the order of this Court dated March 15, 1967 in Civil Appeal No. 93 of 1966. For this, in the alternative, they seek a declaration that the appointment of respondents 3 and 4 was illegal and void.2. On November 20, 1963 the High Court of Rajasthan issued a notice inviting applications for direct recruitment to four posts of Civil and Additional Sessions Judges. The applications received were referred by the High Court to a Selection Committee consisting of the Chief Justice, the Administrative Judge and a Judge nominated by the Chief Justice. According to the petitioners the Selection Committee selected four candidates that is to say, the two petitioners and respondents 3 and 4. The Selection Committee at the same time prepared a second list of promotees. The two lists were submitted to the Governor.3. The fact of the matter, according to the High Court, however, was that the Selection Committee held inverviews for selection of direct recruits between April 27 and May 7, 1964. The applications of these two, who were interviewed on April 27, 1964, were rejected the same day. The interviews continued and three applicants were selected for final consideration. Ultimately the Selection Committee on May 8, 1964 selected respondents 3 and 4. The Committee recorded a memorandum which read :"There were 92 candidates in all for the selection to the R. H. J. S. by direct recruitment under Rule 7 (1) (ii), read with Rule 2 of the Rajasthan Higher Judicial Service Rules, 1955.Out of these one was not called for interview, eight were absent and the remaining 83 (eighty-three) candidates have been interviewed by us from the 27th April to 7th May, 1964.Although four posts had been advertised, we are of opinion that only two candidates come upto the requisite standard of ability and competence. We have therefore thought fit to recommend only two candidates for appointment under the Rules in the following order of merit :(1) Shri Kalyan Dutt Sharma, Advocate Alwar.(2) Shri Kishore Singh Lodha, Advocate, Jodhpur.This may be circulated to all Hon. Judges for approval."The Full Court approved. No recommendation was sent to the Governor till January 13, 1965 for reasons which were stated as follows :"On May 4, 1964 some Judicial officers of Rajasthan filed a Civil Writ Petition No. 803 of 1964 (referred to in paragraph 4 by the petitioners) under Article 226 of the Constitution before the High Court. They also prayed for staying the selection during the pendency of the writ petition but their request was rejected on May 8, 1964. However, the High Court on its administrative side thought it proper to postpone the selection of Rajasthan Judicial Service till the pendency of that writ petition and as the two lists, i.e., one of selected direct recruits and the other of Rajasthan Judicial Service officers to be promoted to Rajasthan Higher Judicial Service were, according to the rules, to be sent to the Governor together, even the latter list was not sent earlier.Before the decision of the High Court in that writ petition it was considered that there were 18 posts available for appointment, out of which 4 posts were to be filled by direct recruitment and 14 by promotion from amongst officers of the Rajasthan Judicial Service. In that writ petition the High Court, by its judgment dated November 27, 1964 directed as follows :-"Accordingly, we reject the application in regard to all the reliefs sought by the petitioners in their writ petition. But in view of our finding that the number of vacancies on the date of its determination by the Governor was only 9 and not 18 we direct respondent No. 1 that these vacancies only shall be filled in from the sources in the proportion provided in the rules."When the judgment of the High Court was delivered, the Selection Committee on December 12, 1964 selected seven for promotion. This list was also circulated and approved by the Full Court. The two lists were then sent to the Governor on January 13, 1965. The High Court through the Registrars affidavit stated that the High Court had not selected four persons as direct recruits but only two persons, namely, respondents 3 and 4, and that the petitioners were never selected.4. The petitioners maintained before us that they were selected and sought to establish this from what they said were inferences from the replies of the High Court to the petition filed by the Rajasthan Judicial members in the High Court and certain observations of this Court in the judgment of March 15, 1967 referred to.5. Since the contention was so directly in contradiction of the position maintained by the High Court before us, we invited the petitioners to swear an affidavit before us that they were selected or to point out to us some record in which the fact that they were selected was noted. The petitioners made no attempt to swear the affidavit and still maintained that they could establish by argument that they were so selected. With the reply affidavit of the Registrar two copies of the petitions of these two petitioners were filed and they showed an endorsement by the Chief Justice and the two Judges who formed the Selection Committee that the applications of the petitioners were rejected on April 27, 1964. The petitioners cast doubts on the accuracy of this copy and one of them (H. C. Agarwala) even suggested that the endorsement was antedated and the other (R. K. Mehrotra) that the stand of the High Court was an afterthought. At the hearing the Advocate-General, Rajasthan placed in our hands the entire original file including the applications of the petitioners. The applications clearly bear the endorsement of rejection signed by the Chief Justice and the two Judges with the date 27-4-1964. The applications were submitted in triplicate and the other copies also bear the endorsement over the signature of one of the Judges. | 1[ds]6. In spite of the affidavit of the Registrar from which we have quoted extracts, and the original file, the petitioners continued to make the same assertions and to cast doubts on the authenticity of the record and the endorsement. They even went to the length of suggesting that the endorsement was contradicted by the marks given at the interview.7. We have looked carefully into the record maintained by the High Court and have satisfied ourselves that the affidavit of the Registrar is borne out by it and that there is no reason to doubt the record. The only thing is that our brother Shelat in the earlier order said in the narration of facts :"A number of applications were received by the High Court and after scrutiny thereof and interviews granted to the applicants, the Selection Committee, appointed under the said Rules and consisting of the Chief Justice, the Administrative Judge and another Judge of the High Court nominated by the Chief Justice, selected four candidates. Besides these four posts, there were fourteen posts to be filled up from amongst the members of the Rajasthan Judicial Service by promotion. The said Committee selected eligible candidates from amongst those members and prepared another list. The High Court submitted the two lists prepared by the Committee to the Governor for appointments."8. The mention of the figure 4 instead of 2 in two places is inaccurate since there is no record of selection of more than two candidates. We are satisfied that this error in narration of facts does not conclude us from stating the true facts which are as we have gathered from the original file.9. The petition thus has no merit of all. Although this was brought to the notice of the petitioners, we are constrained to record that the petitioners, losing all sense of decorum and propriety, continued to maintain that they were selected and to insinuate that the record was not to be trusted. We asked them to swear an affidavit in support of their allegations but they declined to do so. We consider this conduct to be unscrupulous and unworthy. | 1 | 1,190 | 385 | ### Instruction:
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their seniority should be determined in accordance with the ranking made by the Selection Committee and the order of this Court dated March 15, 1967 in Civil Appeal No. 93 of 1966. For this, in the alternative, they seek a declaration that the appointment of respondents 3 and 4 was illegal and void.2. On November 20, 1963 the High Court of Rajasthan issued a notice inviting applications for direct recruitment to four posts of Civil and Additional Sessions Judges. The applications received were referred by the High Court to a Selection Committee consisting of the Chief Justice, the Administrative Judge and a Judge nominated by the Chief Justice. According to the petitioners the Selection Committee selected four candidates that is to say, the two petitioners and respondents 3 and 4. The Selection Committee at the same time prepared a second list of promotees. The two lists were submitted to the Governor.3. The fact of the matter, according to the High Court, however, was that the Selection Committee held inverviews for selection of direct recruits between April 27 and May 7, 1964. The applications of these two, who were interviewed on April 27, 1964, were rejected the same day. The interviews continued and three applicants were selected for final consideration. Ultimately the Selection Committee on May 8, 1964 selected respondents 3 and 4. The Committee recorded a memorandum which read :"There were 92 candidates in all for the selection to the R. H. J. S. by direct recruitment under Rule 7 (1) (ii), read with Rule 2 of the Rajasthan Higher Judicial Service Rules, 1955.Out of these one was not called for interview, eight were absent and the remaining 83 (eighty-three) candidates have been interviewed by us from the 27th April to 7th May, 1964.Although four posts had been advertised, we are of opinion that only two candidates come upto the requisite standard of ability and competence. We have therefore thought fit to recommend only two candidates for appointment under the Rules in the following order of merit :(1) Shri Kalyan Dutt Sharma, Advocate Alwar.(2) Shri Kishore Singh Lodha, Advocate, Jodhpur.This may be circulated to all Hon. Judges for approval."The Full Court approved. No recommendation was sent to the Governor till January 13, 1965 for reasons which were stated as follows :"On May 4, 1964 some Judicial officers of Rajasthan filed a Civil Writ Petition No. 803 of 1964 (referred to in paragraph 4 by the petitioners) under Article 226 of the Constitution before the High Court. They also prayed for staying the selection during the pendency of the writ petition but their request was rejected on May 8, 1964. However, the High Court on its administrative side thought it proper to postpone the selection of Rajasthan Judicial Service till the pendency of that writ petition and as the two lists, i.e., one of selected direct recruits and the other of Rajasthan Judicial Service officers to be promoted to Rajasthan Higher Judicial Service were, according to the rules, to be sent to the Governor together, even the latter list was not sent earlier.Before the decision of the High Court in that writ petition it was considered that there were 18 posts available for appointment, out of which 4 posts were to be filled by direct recruitment and 14 by promotion from amongst officers of the Rajasthan Judicial Service. In that writ petition the High Court, by its judgment dated November 27, 1964 directed as follows :-"Accordingly, we reject the application in regard to all the reliefs sought by the petitioners in their writ petition. But in view of our finding that the number of vacancies on the date of its determination by the Governor was only 9 and not 18 we direct respondent No. 1 that these vacancies only shall be filled in from the sources in the proportion provided in the rules."When the judgment of the High Court was delivered, the Selection Committee on December 12, 1964 selected seven for promotion. This list was also circulated and approved by the Full Court. The two lists were then sent to the Governor on January 13, 1965. The High Court through the Registrars affidavit stated that the High Court had not selected four persons as direct recruits but only two persons, namely, respondents 3 and 4, and that the petitioners were never selected.4. The petitioners maintained before us that they were selected and sought to establish this from what they said were inferences from the replies of the High Court to the petition filed by the Rajasthan Judicial members in the High Court and certain observations of this Court in the judgment of March 15, 1967 referred to.5. Since the contention was so directly in contradiction of the position maintained by the High Court before us, we invited the petitioners to swear an affidavit before us that they were selected or to point out to us some record in which the fact that they were selected was noted. The petitioners made no attempt to swear the affidavit and still maintained that they could establish by argument that they were so selected. With the reply affidavit of the Registrar two copies of the petitions of these two petitioners were filed and they showed an endorsement by the Chief Justice and the two Judges who formed the Selection Committee that the applications of the petitioners were rejected on April 27, 1964. The petitioners cast doubts on the accuracy of this copy and one of them (H. C. Agarwala) even suggested that the endorsement was antedated and the other (R. K. Mehrotra) that the stand of the High Court was an afterthought. At the hearing the Advocate-General, Rajasthan placed in our hands the entire original file including the applications of the petitioners. The applications clearly bear the endorsement of rejection signed by the Chief Justice and the two Judges with the date 27-4-1964. The applications were submitted in triplicate and the other copies also bear the endorsement over the signature of one of the Judges.
### Response:
1
### Explanation:
6. In spite of the affidavit of the Registrar from which we have quoted extracts, and the original file, the petitioners continued to make the same assertions and to cast doubts on the authenticity of the record and the endorsement. They even went to the length of suggesting that the endorsement was contradicted by the marks given at the interview.7. We have looked carefully into the record maintained by the High Court and have satisfied ourselves that the affidavit of the Registrar is borne out by it and that there is no reason to doubt the record. The only thing is that our brother Shelat in the earlier order said in the narration of facts :"A number of applications were received by the High Court and after scrutiny thereof and interviews granted to the applicants, the Selection Committee, appointed under the said Rules and consisting of the Chief Justice, the Administrative Judge and another Judge of the High Court nominated by the Chief Justice, selected four candidates. Besides these four posts, there were fourteen posts to be filled up from amongst the members of the Rajasthan Judicial Service by promotion. The said Committee selected eligible candidates from amongst those members and prepared another list. The High Court submitted the two lists prepared by the Committee to the Governor for appointments."8. The mention of the figure 4 instead of 2 in two places is inaccurate since there is no record of selection of more than two candidates. We are satisfied that this error in narration of facts does not conclude us from stating the true facts which are as we have gathered from the original file.9. The petition thus has no merit of all. Although this was brought to the notice of the petitioners, we are constrained to record that the petitioners, losing all sense of decorum and propriety, continued to maintain that they were selected and to insinuate that the record was not to be trusted. We asked them to swear an affidavit in support of their allegations but they declined to do so. We consider this conduct to be unscrupulous and unworthy.
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JHARKHAND PUBLIC SERVICE COMMISSION Vs. MANOJ KUMAR GUPTA AND ANR | Jharkhand Public Service Commission (JPSC) issued an advertisement on 19.07.2006 inviting applications from candidates desirous of competing in the Jharkhand Eligibility Test (JET). This test is not meant for selection to any post but is conducted to determine the eligibility of the candidates for appointment as lecturers in universities and colleges of the State of Jharkhand. This test called the State Level Eligibility Test (SLET) is conducted as per the guidelines laid down by the University Grants Commission (UGC). 2. The test consists of three papers – the first two papers are multiple choice questions to be answered on an Optical Mark Reader (OMR). One test is of a general subject and one test is of the subject for which the candidate applies. The third paper is a descriptive type question paper dealing only with the subject selected by the candidate. Relevant portion of the advertisement reads as follows: A candidate who does not appear in Paper-I will not be permitted to appear in Paper-II and Paper-III. Paper-III will be evaluated only for those candidates who are able to secure the minimum qualifying marks in Paper-I and Paper-II as per the table given in the following:- TABLE 3. The writ petitioner obtained 50% marks in Papers I and II but he did not do as well in Paper III. The JPSC fixed a cut off percentage of 60 for Paper III which the writ petitioner did not attain and as such he was declared not successful and, therefore, ineligible to be considered for appointment as lecturer. 4. Aggrieved by the said action, the writ petitioner filed a writ petition before the High Court which allowed the same. The appeal filed by the JPSC before the writ court was also allowed mainly on the ground that the Public Service Commission could not have fixed qualifying marks of 60% and this amounted to changing the rules of the game after the advertisement had been issued and process of selection had started. It held that once the candidate had obtained 50% marks, the candidate could not be disqualified and the JPSC was not bound by the instructions of the UGC in this regard. The High Court also directed that the case of the writ petitioner would be considered on the basis of performance. The High Court held that no cut off marks had been provided for Paper III. 5. We have heard Shri Sunil Kumar, learned senior counsel appearing for the JPSE who drew our attention to the scheme framed by the UGC for the SLET. The scheme has a provision for constitution of a moderation committee which will help in deciding the cut off marks in each subject for declaring the result. The relevant portion of the scheme reads as follows: Moderation Committee: The committee will help in deciding the cut-off marks in each subject for declaring the result. The Committee will consist of the following: 1. Chairman of Steering/Advisory Committee. 2. State Government Representatives. 3. Two Professors of the different State Universities in rotation. 4. One Professor from outside the State. 5. Member Secretary (State agency) 6. One nominee of the U-CAT out of two nominated by UGC. 7. Member Secretary, (UGC Official) U-CAT, UGC. Mr. Sunil Kumar contends that the moderation committee, keeping in view the various factors, decides what should be the cut off marks in each subject and this does not have to be decided at the stage of issuance of advertisement. On the other hand, Shri Abhishek Vikas, learned counsel appearing for the original writ petitioner, submits that the advertisement does not envisage any minimum cut-off marks for Paper III. He further submits that this is only an eligibility test and the field of choice becomes larger if more people are held eligible. Both sides have challenged the judgment of the High Court and we are deciding both the appeals by this common judgment. 6. A perusal of Clause 4.1 of the scheme clearly indicates that the moderation committee has been constituted only for the purpose of deciding the cut-off marks in each subject for declaring the result. The advertisement clearly indicates that only those candidates who obtained 50% marks in Paper I and II would be eligible to take the test in Paper III. The minimum qualifying marks in case of General/OBC candidates was 50%. At this stage, there was no need to fix the qualifying marks for Paper III. That need will arise only when the moderation committee meets and decides what should be the level of competence expected from the people who are to be considered for appointment as Lecturers. It is for the moderation committee to decide what should be the cut-off marks. There could be the subject where all the people who qualified Paper I and II get very low marks in Paper III and the moderation committee may be justified in lowering the standards and prescribing lower qualifying standards. On the other hand, there may be a subject where there are many candidates who do extremely well in Paper III and the moderation committee may decide to fix a higher minimum standard. The constitution of a moderation committee is normally done only to do this sort of moderation. 7. As far as the finding of the High Court that the rules of the game were changed after the selection process had started, we are of the considered view that this is not the case as far as the present case is concerned. There were no minimum marks provided for Paper III in the advertisement. This could be done by the moderation committee even at a later stage. This is not a change brought about but an additional aspect brought in while determining the merit of the candidates who are found fit to be eligible for consideration for appointment of Lecturers. 8. In view of the above, we are of the considered opinion that the High Court erred in holding that the JPSC could not fix the minimum marks for Paper III. | 1[ds]6. A perusal of Clause 4.1 of the scheme clearly indicates that the moderation committee has been constituted only for the purpose of deciding the cut-off marks in each subject for declaring the result. The advertisement clearly indicates that only those candidates who obtained 50% marks in Paper I and II would be eligible to take the test in Paper III. The minimum qualifying marks in case of General/OBC candidates was 50%. At this stage, there was no need to fix the qualifying marks for Paper III. That need will arise only when the moderation committee meets and decides what should be the level of competence expected from the people who are to be considered for appointment as Lecturers. It is for the moderation committee to decide what should be the cut-off marks. There could be the subject where all the people who qualified Paper I and II get very low marks in Paper III and the moderation committee may be justified in lowering the standards and prescribing lower qualifying standards. On the other hand, there may be a subject where there are many candidates who do extremely well in Paper III and the moderation committee may decide to fix a higher minimum standard. The constitution of a moderation committee is normally done only to do this sort of moderation7. As far as the finding of the High Court that the rules of the game were changed after the selection process had started, we are of the considered view that this is not the case as far as the present case is concerned. There were no minimum marks provided for Paper III in the advertisement. This could be done by the moderation committee even at a later stage. This is not a change brought about but an additional aspect brought in while determining the merit of the candidates who are found fit to be eligible for consideration for appointment of Lecturers.8. In view of the above, we are of the considered opinion that the High Court erred in holding that the JPSC could not fix the minimum marks for Paper III. | 1 | 1,104 | 376 | ### 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:
Jharkhand Public Service Commission (JPSC) issued an advertisement on 19.07.2006 inviting applications from candidates desirous of competing in the Jharkhand Eligibility Test (JET). This test is not meant for selection to any post but is conducted to determine the eligibility of the candidates for appointment as lecturers in universities and colleges of the State of Jharkhand. This test called the State Level Eligibility Test (SLET) is conducted as per the guidelines laid down by the University Grants Commission (UGC). 2. The test consists of three papers – the first two papers are multiple choice questions to be answered on an Optical Mark Reader (OMR). One test is of a general subject and one test is of the subject for which the candidate applies. The third paper is a descriptive type question paper dealing only with the subject selected by the candidate. Relevant portion of the advertisement reads as follows: A candidate who does not appear in Paper-I will not be permitted to appear in Paper-II and Paper-III. Paper-III will be evaluated only for those candidates who are able to secure the minimum qualifying marks in Paper-I and Paper-II as per the table given in the following:- TABLE 3. The writ petitioner obtained 50% marks in Papers I and II but he did not do as well in Paper III. The JPSC fixed a cut off percentage of 60 for Paper III which the writ petitioner did not attain and as such he was declared not successful and, therefore, ineligible to be considered for appointment as lecturer. 4. Aggrieved by the said action, the writ petitioner filed a writ petition before the High Court which allowed the same. The appeal filed by the JPSC before the writ court was also allowed mainly on the ground that the Public Service Commission could not have fixed qualifying marks of 60% and this amounted to changing the rules of the game after the advertisement had been issued and process of selection had started. It held that once the candidate had obtained 50% marks, the candidate could not be disqualified and the JPSC was not bound by the instructions of the UGC in this regard. The High Court also directed that the case of the writ petitioner would be considered on the basis of performance. The High Court held that no cut off marks had been provided for Paper III. 5. We have heard Shri Sunil Kumar, learned senior counsel appearing for the JPSE who drew our attention to the scheme framed by the UGC for the SLET. The scheme has a provision for constitution of a moderation committee which will help in deciding the cut off marks in each subject for declaring the result. The relevant portion of the scheme reads as follows: Moderation Committee: The committee will help in deciding the cut-off marks in each subject for declaring the result. The Committee will consist of the following: 1. Chairman of Steering/Advisory Committee. 2. State Government Representatives. 3. Two Professors of the different State Universities in rotation. 4. One Professor from outside the State. 5. Member Secretary (State agency) 6. One nominee of the U-CAT out of two nominated by UGC. 7. Member Secretary, (UGC Official) U-CAT, UGC. Mr. Sunil Kumar contends that the moderation committee, keeping in view the various factors, decides what should be the cut off marks in each subject and this does not have to be decided at the stage of issuance of advertisement. On the other hand, Shri Abhishek Vikas, learned counsel appearing for the original writ petitioner, submits that the advertisement does not envisage any minimum cut-off marks for Paper III. He further submits that this is only an eligibility test and the field of choice becomes larger if more people are held eligible. Both sides have challenged the judgment of the High Court and we are deciding both the appeals by this common judgment. 6. A perusal of Clause 4.1 of the scheme clearly indicates that the moderation committee has been constituted only for the purpose of deciding the cut-off marks in each subject for declaring the result. The advertisement clearly indicates that only those candidates who obtained 50% marks in Paper I and II would be eligible to take the test in Paper III. The minimum qualifying marks in case of General/OBC candidates was 50%. At this stage, there was no need to fix the qualifying marks for Paper III. That need will arise only when the moderation committee meets and decides what should be the level of competence expected from the people who are to be considered for appointment as Lecturers. It is for the moderation committee to decide what should be the cut-off marks. There could be the subject where all the people who qualified Paper I and II get very low marks in Paper III and the moderation committee may be justified in lowering the standards and prescribing lower qualifying standards. On the other hand, there may be a subject where there are many candidates who do extremely well in Paper III and the moderation committee may decide to fix a higher minimum standard. The constitution of a moderation committee is normally done only to do this sort of moderation. 7. As far as the finding of the High Court that the rules of the game were changed after the selection process had started, we are of the considered view that this is not the case as far as the present case is concerned. There were no minimum marks provided for Paper III in the advertisement. This could be done by the moderation committee even at a later stage. This is not a change brought about but an additional aspect brought in while determining the merit of the candidates who are found fit to be eligible for consideration for appointment of Lecturers. 8. In view of the above, we are of the considered opinion that the High Court erred in holding that the JPSC could not fix the minimum marks for Paper III.
### Response:
1
### Explanation:
6. A perusal of Clause 4.1 of the scheme clearly indicates that the moderation committee has been constituted only for the purpose of deciding the cut-off marks in each subject for declaring the result. The advertisement clearly indicates that only those candidates who obtained 50% marks in Paper I and II would be eligible to take the test in Paper III. The minimum qualifying marks in case of General/OBC candidates was 50%. At this stage, there was no need to fix the qualifying marks for Paper III. That need will arise only when the moderation committee meets and decides what should be the level of competence expected from the people who are to be considered for appointment as Lecturers. It is for the moderation committee to decide what should be the cut-off marks. There could be the subject where all the people who qualified Paper I and II get very low marks in Paper III and the moderation committee may be justified in lowering the standards and prescribing lower qualifying standards. On the other hand, there may be a subject where there are many candidates who do extremely well in Paper III and the moderation committee may decide to fix a higher minimum standard. The constitution of a moderation committee is normally done only to do this sort of moderation7. As far as the finding of the High Court that the rules of the game were changed after the selection process had started, we are of the considered view that this is not the case as far as the present case is concerned. There were no minimum marks provided for Paper III in the advertisement. This could be done by the moderation committee even at a later stage. This is not a change brought about but an additional aspect brought in while determining the merit of the candidates who are found fit to be eligible for consideration for appointment of Lecturers.8. In view of the above, we are of the considered opinion that the High Court erred in holding that the JPSC could not fix the minimum marks for Paper III.
|
Dharma Rama Bhagare Vs. State of Maharashtra | pulled out of the wound was likely to cause more damage is, in our opinion, not a sufficiently strong factor which should persuade us on the existing record to reject the testimony of the three eye-witnesses believed by the Courts below and about whose trustworthiness we do not entertain any reasonable doubt. It is noteworthy that this contention was not raised either in the trial Court or in the High Court. Indeed, during the cross-examination of Dr. Deshpande (P. W. 12) even when he was recalled no straight and direct question was put to him, if keeping in view the nature of the injuries on Abdul Khalil and Sahebi and the recovered arrows and assuming that the arrows causing the injury had not been taken out skillfully, he could confidently depose that the injuries in question were not possible to be caused by these arrows. It is also pertinent to point out that from the order dated April 27, 1971, it does not appear that the counsel for the appellant specifically desired to clarify this point from the doctor. The submission now forcefully advanced by Shri Dholakia appears to us to be an afterthought and in any event is clearly not supportable on the medical evidence. We are, therefore, unable to reject the testimony of the eye-witnesses merely on the medical evidence to which our attention has been drawn.7. In so far as the information lodged with the police by Shamsuddin is concerned both the courts below have not considered it proper to reject the testimony of the other three eye-witnesses on the ground of variance between their statements in Court and the contents of the said information. The first information report, it may be pointed out, is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in Court as a witness. Its value must always depend on the facts and circumstances of a given case. In the present case its value has not been considered to be of much significant because of the nature and circumstances of the occurrence and the extent and nature of the injuries suffered by Shamsuddin who quite naturally must have been subjected to a very severe shock. The surviving members of the family could not go back to their home even after the occurrence and felt compelled to trek the whole night on foot to find shelter in the house of Gafoor at Shahpur where they reached the following morning. In these circumstances the contents of the F.I.R. made by Shamsuddin have rightly not been given any importance by the trial Court and by the High Court. The F.I.R. can only discredit the testimony of Shamsuddin whose evidence has not been relied upon for supporting the appellants conviction. The F.I.R. can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant. The evidence of the eye-witnesses believed by the two Courts appears to us to be free from any serious infirmity justifying its rejection. The case is obviously not one in which any reasonable doubt can be cast on the testimony of the eye-witnesses on the mere ground that Shamsuddin who apparently in his attempt to save himself from the fierce indiscriminate assault by the assailants was not able carefully to see and remember as to in what manner and by what weapon his parents and eldest brother had been killed. That they were actually killed during the occurrence in question is undisputed. Equally undisputed is the nature of injuries found on their bodies.We are, therefore, unable to agree with Shri Dholakia that the prosecution case should be thrown out on the mere ground that in the first information report an altogether different version was given by Shamsuddin.The evidence of Shamsuddin as given in Court, it may be recalled has not been relied upon for sustaining the appellants conviction. We accordingly feel little hesitation in agreeing with the concurrent conclusion of the trial Court and the High Court that the appellant was responsible for killing the three deceased persons.8. The last contention by Shri Dholakia relates to the question of sentence. According to him the present is not a case for extreme penalty. We are unable to agree.The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly stated, include the motive for, and the magnitude of, the offences and the manner of its commission. In this case the victims of the assault had given no offence to the appellant or his associates. Indeed the unarmed innocent members of this family had to leave their hearth, and home and were actually at the moment of the offence running in panic on seeing the mob, to save themselves, when the three seniormost members were shot with arrows from behind and killed. One of the victims was a woman with a baby in her arms. The only reasons for these murders is the profession of different religious faith by the victims. According to the investigating Officer, P. W. 13. Abdul Khalils residential house had also been set on fire on May 12 at 8.30 p. m. In our country where the Constitution guarantees to all individuals freedom of religious faith, thought, belief and expression and where no particular religion is accorded a superior status and none subjected to hostile discrimination the commission of offences motivated only by the fact that the victim professes a different religious faith cannot be treated with leniency. They are not only destructive of our basic traditional social order founded on toleration in recognition of the dignity of the individual and of other cherished human values, but have also a tendency to mar our national solidarity. We are, therefore, wholly unable to find any cogent reason for reducing the sentences imposed by the trial Court and confirmed by the High Court. Th | 0[ds]7. In so far as the information lodged with the police by Shamsuddin is concerned both the courts below have not considered it proper to reject the testimony of the other three eye-witnesses on the ground of variance between their statements in Court and the contents of the said information. The first information report, it may be pointed out, is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in Court as a witness. Its value must always depend on the facts and circumstances of a given case. In the present case its value has not been considered to be of much significant because of the nature and circumstances of the occurrence and the extent and nature of the injuries suffered by Shamsuddin who quite naturally must have been subjected to a very severe shock. The surviving members of the family could not go back to their home even after the occurrence and felt compelled to trek the whole night on foot to find shelter in the house of Gafoor at Shahpur where they reached the following morning. In these circumstances the contents of the F.I.R. made by Shamsuddin have rightly not been given any importance by the trial Court and by the High Court. The F.I.R. can only discredit the testimony of Shamsuddin whose evidence has not been relied upon for supporting the appellants conviction. The F.I.R. can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant. The evidence of the eye-witnesses believed by the two Courts appears to us to be free from any serious infirmity justifying its rejection. The case is obviously not one in which any reasonable doubt can be cast on the testimony of the eye-witnesses on the mere ground that Shamsuddin who apparently in his attempt to save himself from the fierce indiscriminate assault by the assailants was not able carefully to see and remember as to in what manner and by what weapon his parents and eldest brother had been killed. That they were actually killed during the occurrence in question is undisputed. Equally undisputed is the nature of injuries found on their bodies.We are, therefore, unable to agree with Shri Dholakia that the prosecution case should be thrown out on the mere ground that in the first information report an altogether different version was given by Shamsuddin.The evidence of Shamsuddin as given in Court, it may be recalled has not been relied upon for sustaining the appellants conviction. We accordingly feel little hesitation in agreeing with the concurrent conclusion of the trial Court and the High Court that the appellant was responsible for killing the three deceased persons.8. The last contention by Shri Dholakia relates to the question of sentence. According to him the present is not a case for extreme penalty. We are unable to agree.The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly stated, include the motive for, and the magnitude of, the offences and the manner of its commission. In this case the victims of the assault had given no offence to the appellant or his associates. Indeed the unarmed innocent members of this family had to leave their hearth, and home and were actually at the moment of the offence running in panic on seeing the mob, to save themselves, when the three seniormost members were shot with arrows from behind and killed. One of the victims was a woman with a baby in her arms. The only reasons for these murders is the profession of different religious faith by the victims. According to the investigating Officer, P. W. 13. Abdul Khalils residential house had also been set on fire on May 12 at 8.30 p. m. In our country where the Constitution guarantees to all individuals freedom of religious faith, thought, belief and expression and where no particular religion is accorded a superior status and none subjected to hostile discrimination the commission of offences motivated only by the fact that the victim professes a different religious faith cannot be treated with leniency. They are not only destructive of our basic traditional social order founded on toleration in recognition of the dignity of the individual and of other cherished human values, but have also a tendency to mar our national solidarity. We are, therefore, wholly unable to find any cogent reason for reducing the sentences imposed by the trial Court and confirmed by the High Court. | 0 | 4,589 | 824 | ### 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.
### Input:
pulled out of the wound was likely to cause more damage is, in our opinion, not a sufficiently strong factor which should persuade us on the existing record to reject the testimony of the three eye-witnesses believed by the Courts below and about whose trustworthiness we do not entertain any reasonable doubt. It is noteworthy that this contention was not raised either in the trial Court or in the High Court. Indeed, during the cross-examination of Dr. Deshpande (P. W. 12) even when he was recalled no straight and direct question was put to him, if keeping in view the nature of the injuries on Abdul Khalil and Sahebi and the recovered arrows and assuming that the arrows causing the injury had not been taken out skillfully, he could confidently depose that the injuries in question were not possible to be caused by these arrows. It is also pertinent to point out that from the order dated April 27, 1971, it does not appear that the counsel for the appellant specifically desired to clarify this point from the doctor. The submission now forcefully advanced by Shri Dholakia appears to us to be an afterthought and in any event is clearly not supportable on the medical evidence. We are, therefore, unable to reject the testimony of the eye-witnesses merely on the medical evidence to which our attention has been drawn.7. In so far as the information lodged with the police by Shamsuddin is concerned both the courts below have not considered it proper to reject the testimony of the other three eye-witnesses on the ground of variance between their statements in Court and the contents of the said information. The first information report, it may be pointed out, is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in Court as a witness. Its value must always depend on the facts and circumstances of a given case. In the present case its value has not been considered to be of much significant because of the nature and circumstances of the occurrence and the extent and nature of the injuries suffered by Shamsuddin who quite naturally must have been subjected to a very severe shock. The surviving members of the family could not go back to their home even after the occurrence and felt compelled to trek the whole night on foot to find shelter in the house of Gafoor at Shahpur where they reached the following morning. In these circumstances the contents of the F.I.R. made by Shamsuddin have rightly not been given any importance by the trial Court and by the High Court. The F.I.R. can only discredit the testimony of Shamsuddin whose evidence has not been relied upon for supporting the appellants conviction. The F.I.R. can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant. The evidence of the eye-witnesses believed by the two Courts appears to us to be free from any serious infirmity justifying its rejection. The case is obviously not one in which any reasonable doubt can be cast on the testimony of the eye-witnesses on the mere ground that Shamsuddin who apparently in his attempt to save himself from the fierce indiscriminate assault by the assailants was not able carefully to see and remember as to in what manner and by what weapon his parents and eldest brother had been killed. That they were actually killed during the occurrence in question is undisputed. Equally undisputed is the nature of injuries found on their bodies.We are, therefore, unable to agree with Shri Dholakia that the prosecution case should be thrown out on the mere ground that in the first information report an altogether different version was given by Shamsuddin.The evidence of Shamsuddin as given in Court, it may be recalled has not been relied upon for sustaining the appellants conviction. We accordingly feel little hesitation in agreeing with the concurrent conclusion of the trial Court and the High Court that the appellant was responsible for killing the three deceased persons.8. The last contention by Shri Dholakia relates to the question of sentence. According to him the present is not a case for extreme penalty. We are unable to agree.The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly stated, include the motive for, and the magnitude of, the offences and the manner of its commission. In this case the victims of the assault had given no offence to the appellant or his associates. Indeed the unarmed innocent members of this family had to leave their hearth, and home and were actually at the moment of the offence running in panic on seeing the mob, to save themselves, when the three seniormost members were shot with arrows from behind and killed. One of the victims was a woman with a baby in her arms. The only reasons for these murders is the profession of different religious faith by the victims. According to the investigating Officer, P. W. 13. Abdul Khalils residential house had also been set on fire on May 12 at 8.30 p. m. In our country where the Constitution guarantees to all individuals freedom of religious faith, thought, belief and expression and where no particular religion is accorded a superior status and none subjected to hostile discrimination the commission of offences motivated only by the fact that the victim professes a different religious faith cannot be treated with leniency. They are not only destructive of our basic traditional social order founded on toleration in recognition of the dignity of the individual and of other cherished human values, but have also a tendency to mar our national solidarity. We are, therefore, wholly unable to find any cogent reason for reducing the sentences imposed by the trial Court and confirmed by the High Court. Th
### Response:
0
### Explanation:
7. In so far as the information lodged with the police by Shamsuddin is concerned both the courts below have not considered it proper to reject the testimony of the other three eye-witnesses on the ground of variance between their statements in Court and the contents of the said information. The first information report, it may be pointed out, is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in Court as a witness. Its value must always depend on the facts and circumstances of a given case. In the present case its value has not been considered to be of much significant because of the nature and circumstances of the occurrence and the extent and nature of the injuries suffered by Shamsuddin who quite naturally must have been subjected to a very severe shock. The surviving members of the family could not go back to their home even after the occurrence and felt compelled to trek the whole night on foot to find shelter in the house of Gafoor at Shahpur where they reached the following morning. In these circumstances the contents of the F.I.R. made by Shamsuddin have rightly not been given any importance by the trial Court and by the High Court. The F.I.R. can only discredit the testimony of Shamsuddin whose evidence has not been relied upon for supporting the appellants conviction. The F.I.R. can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant. The evidence of the eye-witnesses believed by the two Courts appears to us to be free from any serious infirmity justifying its rejection. The case is obviously not one in which any reasonable doubt can be cast on the testimony of the eye-witnesses on the mere ground that Shamsuddin who apparently in his attempt to save himself from the fierce indiscriminate assault by the assailants was not able carefully to see and remember as to in what manner and by what weapon his parents and eldest brother had been killed. That they were actually killed during the occurrence in question is undisputed. Equally undisputed is the nature of injuries found on their bodies.We are, therefore, unable to agree with Shri Dholakia that the prosecution case should be thrown out on the mere ground that in the first information report an altogether different version was given by Shamsuddin.The evidence of Shamsuddin as given in Court, it may be recalled has not been relied upon for sustaining the appellants conviction. We accordingly feel little hesitation in agreeing with the concurrent conclusion of the trial Court and the High Court that the appellant was responsible for killing the three deceased persons.8. The last contention by Shri Dholakia relates to the question of sentence. According to him the present is not a case for extreme penalty. We are unable to agree.The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly stated, include the motive for, and the magnitude of, the offences and the manner of its commission. In this case the victims of the assault had given no offence to the appellant or his associates. Indeed the unarmed innocent members of this family had to leave their hearth, and home and were actually at the moment of the offence running in panic on seeing the mob, to save themselves, when the three seniormost members were shot with arrows from behind and killed. One of the victims was a woman with a baby in her arms. The only reasons for these murders is the profession of different religious faith by the victims. According to the investigating Officer, P. W. 13. Abdul Khalils residential house had also been set on fire on May 12 at 8.30 p. m. In our country where the Constitution guarantees to all individuals freedom of religious faith, thought, belief and expression and where no particular religion is accorded a superior status and none subjected to hostile discrimination the commission of offences motivated only by the fact that the victim professes a different religious faith cannot be treated with leniency. They are not only destructive of our basic traditional social order founded on toleration in recognition of the dignity of the individual and of other cherished human values, but have also a tendency to mar our national solidarity. We are, therefore, wholly unable to find any cogent reason for reducing the sentences imposed by the trial Court and confirmed by the High Court.
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COMMISSIONER OF CENTRAL EXCISE Vs. HERO HONDA MOTORS LTD | which Rs. 28.90 crore was invested in various securities/deposits leaving a balance of Rs. 4.42 crore (see Schedule 4). The said schedule further indicates utilization of capital gains and interest income to reduce the liability under the said head. That, the said Schedule 4 indicated not only liquidation of liabilities under the head customers advances by utilization of income on investments from such advances, they also indicated flow-back of the benefits from the customers to the Assessee. Moreover, the income from such investments was shown under the head Sales & Other Income. The said Other Income included interest on deposits, profit on sale of units and income from units (schedule 10). Even the Report of the Directors under the head Financial Reports show that the profits of the company have been based on implication of Sales with Other Incomes. For example, for the year 1985-86, Sales & Other Incomes were of Rs. 49.20 crore (rounded to 0) out of which Income from Sales was Rs. 45.02 crore (Round to 0) whereas Rs. 4.06 crore was on account of other Income. Therefore, according to the adjudicating authority, the total income (Sales & Other Income) contributed to the profits which had a direct impact on pricing. According to the adjudicating authority the said Other Income had contributed to the pricing. That, but for the said other Income, it was not possible for the company to sell the motorcycles at a price lower than the unit cost of production. Lastly, the adjudicating authority found on facts that since interest paid at 9% to the customers was indicated as an expense, the income on the investments from the advances was includible in the assessable value. This aspect has also not been considered by the Tribunal. For the above reasons, we hold that the tribunal has disposed of the appeal before it in a most perfunctory manner without going into any figures at all but by merely on the statement made by counsel and on the basis of material which appears to have been produced first time before the Tribunal. We, therefore, set aside the order of the Tribunal and remand the matter back to the Tribunal. The Tribunal will consider in detail, if necessary by taking the help of a cost accountant and after looking into the accounts of the Respondent whether or not the advances or any part thereof have been used in the working capital and whether or not the advances received by the Respondent and/or the interest earned thereon have been used in the working capital and/or whether it has the effect of reducing the price of the motorcycle. The Tribunal to so decide on the material which was placed before the Commissioner and not to allow any additional documents/materials to be filed before it. None of our observations made herein shall bind the Tribunal to which this case is remitted. 3. After remand, the Commissioner once again reiterated the conclusion of his earlier order which compelled the Assessee to approach the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as Tribunal) again challenging the order of the Commissioner. The finding of the Commissioner was that the huge amount of customers booking advances were used to meet their working capital requirements as well as were partly invested in deposits/securities. On that basis, he concluded that the interest, dividends and capital gains from such investment enabled them to meet the working capital requirements which resulted in lowering their capital borrowings. 4. The Tribunal, after re-examining the entire material that was produced before it by the Assessee, noted that the overall effect of the deposit on the financial position of the company or its profitability had no direct relevance to the dispute. It found that for excise valuation, the relevant consideration was as to whether the deposits had the effect of lowering the sale prices of the motorcycles or whether the sale prices were normal sale prices unaffected by the deposits. After going through the material that was produced, it answered the aforesaid question in the negative which is manifest in the following order: 15. From the materials on record and the analysis provided by the costing expert, we are clear in our mind that deposits were not a relevant factor in the pricing of the motorcycles. The average sales realization and average cost at annexure II of the report show that there is considerable gap between sales realization and manufacturing cost of the motorcycles. This gap also varies vastly from year to year. From the highest per motorcycle loss of Rs. 771.21 in 1988-89 the highest profit of Rs. 1122.00 in 1990-91. This is despite the rise of the sale price of a motorcycle from about Rs. 10,000/- to about Rs. 19,000/- during the relevant period. The year to year position is also not any different. The price was revised upwards by about Rs. 900 in 1986-87; but its effect was entirely negative on the bottom line. From a profit of about Rs. 184 in 1985-86 per motorcycle, there was a loss of about Rs. 460 per motorcycle in 1986-87. An upward price revision of over Rs. 1600/- in 1989-90 only helped reduce the loss by Rs. 587/- and could not yield a positive margin. From these, it is clear that company did not follow a cost-plus profit approach while pricing the motorcycles. This also confirms the submission of the learned Senior Counsel that the prices were market driven and motorcycle manufacturers could not follow a cost of production plus reasonable profit pricing policy. 5. It is clear from the above that each and every aspect of the issue is examined, on the basis of which finding is arrived at that the price of the motorcycle manufactured by it were market driven and it did not follow a cost of production plus reasonable profit pricing policy. These are finding of facts which are arrived on the analysis of the evidence produced before it and do not call for any interference. | 0[ds]5. It is clear from the above that each and every aspect of the issue is examined, on the basis of which finding is arrived at that the price of the motorcycle manufactured by it were market driven and it did not follow a cost of production plus reasonable profit pricing policy. These are finding of facts which are arrived on the analysis of the evidence produced before it and do not call for any interference. | 0 | 1,540 | 84 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
which Rs. 28.90 crore was invested in various securities/deposits leaving a balance of Rs. 4.42 crore (see Schedule 4). The said schedule further indicates utilization of capital gains and interest income to reduce the liability under the said head. That, the said Schedule 4 indicated not only liquidation of liabilities under the head customers advances by utilization of income on investments from such advances, they also indicated flow-back of the benefits from the customers to the Assessee. Moreover, the income from such investments was shown under the head Sales & Other Income. The said Other Income included interest on deposits, profit on sale of units and income from units (schedule 10). Even the Report of the Directors under the head Financial Reports show that the profits of the company have been based on implication of Sales with Other Incomes. For example, for the year 1985-86, Sales & Other Incomes were of Rs. 49.20 crore (rounded to 0) out of which Income from Sales was Rs. 45.02 crore (Round to 0) whereas Rs. 4.06 crore was on account of other Income. Therefore, according to the adjudicating authority, the total income (Sales & Other Income) contributed to the profits which had a direct impact on pricing. According to the adjudicating authority the said Other Income had contributed to the pricing. That, but for the said other Income, it was not possible for the company to sell the motorcycles at a price lower than the unit cost of production. Lastly, the adjudicating authority found on facts that since interest paid at 9% to the customers was indicated as an expense, the income on the investments from the advances was includible in the assessable value. This aspect has also not been considered by the Tribunal. For the above reasons, we hold that the tribunal has disposed of the appeal before it in a most perfunctory manner without going into any figures at all but by merely on the statement made by counsel and on the basis of material which appears to have been produced first time before the Tribunal. We, therefore, set aside the order of the Tribunal and remand the matter back to the Tribunal. The Tribunal will consider in detail, if necessary by taking the help of a cost accountant and after looking into the accounts of the Respondent whether or not the advances or any part thereof have been used in the working capital and whether or not the advances received by the Respondent and/or the interest earned thereon have been used in the working capital and/or whether it has the effect of reducing the price of the motorcycle. The Tribunal to so decide on the material which was placed before the Commissioner and not to allow any additional documents/materials to be filed before it. None of our observations made herein shall bind the Tribunal to which this case is remitted. 3. After remand, the Commissioner once again reiterated the conclusion of his earlier order which compelled the Assessee to approach the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as Tribunal) again challenging the order of the Commissioner. The finding of the Commissioner was that the huge amount of customers booking advances were used to meet their working capital requirements as well as were partly invested in deposits/securities. On that basis, he concluded that the interest, dividends and capital gains from such investment enabled them to meet the working capital requirements which resulted in lowering their capital borrowings. 4. The Tribunal, after re-examining the entire material that was produced before it by the Assessee, noted that the overall effect of the deposit on the financial position of the company or its profitability had no direct relevance to the dispute. It found that for excise valuation, the relevant consideration was as to whether the deposits had the effect of lowering the sale prices of the motorcycles or whether the sale prices were normal sale prices unaffected by the deposits. After going through the material that was produced, it answered the aforesaid question in the negative which is manifest in the following order: 15. From the materials on record and the analysis provided by the costing expert, we are clear in our mind that deposits were not a relevant factor in the pricing of the motorcycles. The average sales realization and average cost at annexure II of the report show that there is considerable gap between sales realization and manufacturing cost of the motorcycles. This gap also varies vastly from year to year. From the highest per motorcycle loss of Rs. 771.21 in 1988-89 the highest profit of Rs. 1122.00 in 1990-91. This is despite the rise of the sale price of a motorcycle from about Rs. 10,000/- to about Rs. 19,000/- during the relevant period. The year to year position is also not any different. The price was revised upwards by about Rs. 900 in 1986-87; but its effect was entirely negative on the bottom line. From a profit of about Rs. 184 in 1985-86 per motorcycle, there was a loss of about Rs. 460 per motorcycle in 1986-87. An upward price revision of over Rs. 1600/- in 1989-90 only helped reduce the loss by Rs. 587/- and could not yield a positive margin. From these, it is clear that company did not follow a cost-plus profit approach while pricing the motorcycles. This also confirms the submission of the learned Senior Counsel that the prices were market driven and motorcycle manufacturers could not follow a cost of production plus reasonable profit pricing policy. 5. It is clear from the above that each and every aspect of the issue is examined, on the basis of which finding is arrived at that the price of the motorcycle manufactured by it were market driven and it did not follow a cost of production plus reasonable profit pricing policy. These are finding of facts which are arrived on the analysis of the evidence produced before it and do not call for any interference.
### Response:
0
### Explanation:
5. It is clear from the above that each and every aspect of the issue is examined, on the basis of which finding is arrived at that the price of the motorcycle manufactured by it were market driven and it did not follow a cost of production plus reasonable profit pricing policy. These are finding of facts which are arrived on the analysis of the evidence produced before it and do not call for any interference.
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Gunendra Prasad Sen Gupta Vs. Union of India and Others | Thereafter the appellant was transferred to the Northern Region in November, 1976. After he joined his post in the Northern Region, the appellant realised that some of his juniors had been promoted to higher positions during the period wh en he had been working in the Eastern Region. He, therefore, made a representation on September 4, 1978 to the Managing Director of the Corporation that his cases for promotion to the higher cadre should be considered with effect from the date on which his immediate junior had been promoted. He made a further representation to the Personnel manager of the Corporation, on August 27, 1979 making a similar request. On January 20, 1980, he wrote to the Manager (Establishment) of the Corporation about his grievance and on January 30, 1980 to the Zonal Manager (North) of the Corporation. As these representations yielded no result, the appellant filed a writ petition under Article 226 of the Constitution before the High Court of Delhi in C.W.P. No. 371/81. That petition was dismissed in limine by the High Court of Delhi on March 11, 1981. This appeal by special leave is preferred against the aforesaid order of the High Court.The case of the appellant is that since he had been reposted to the Northern Region with the seniority which he hold before he was transferred to the Eastern Region, the Corporation should consider his case for promotion to the higher cadre as on the date on which his immediate junior was promote d and if he is found fit he should be given such promotion and placed above his immediate junior in the seniority list. He also claims that he should be accorded all consequential benefits.2. In this Court, the Corporation has filed a counter affidavit the deponent of which is Shri Madhusudan, Deputy Manager (Admn.), of the Corporation. In the said counter affidavit, it is admitted that before the appellant was re-transferred to the Northern Region, he had been given an assurance that his seniority in the Northern Region prior to his transfer to the Eastern Region would be restored. It is further stated that the case of the appellant was placed before the Zonal Promotion Committee of the Corporation at its meeting held on December 5, 1977 for considering his case for promotion to the post of Assistant Manager (Depot) against 1970 panel wherein his juniors were empanelled. As the Confidential Reports relating to the appellant for the years 1966 to 1968 were not available for assessment of his suitability, the Zonal Promotion Committee deferred his case but the appellant was, however, empanelled against 1976 panel on the basis of the available reports. The Confidential Reports for the years 1966 t o 1968 were later on traced and the case of the appellant was again placed before the Zonal Promotion Committee at its meeting held in May, 1979 for considering his claim for inclusion in the 1970 panel. Thereupon the Zonal Promotion Committee passed a cryptic resolution to the effect that `on the basis of records of his service, his case cannot be reopened. It is contended on behalf of the Corporation that since the promotion in question one to be made on the basis of selection, the appellant is not entitled to any relief. It may be mentioned here that the appellant was not informed by the Corporation that the Zonal Promotion Committee had found him unsuitable for being included in the 1970 panel. The records pertaining to t he proceedings of the Zonal Promotion Committee are not also placed before us. The resolution passed by the Zonal Promotion Committee does not convey the meaning which the Corporation wants to attribute to it viz. that the Zonal Promotion Committee had found on a consideration of the relevant Confidential Reports that the appellant was unsuitable for being included in the 1970 panel. The resolution passed by the Zonal Promotion Committee means that it was not willing to re open the case of the appellant on the basis of his service records. The resolution does not show that the Zonal Promotion Committee had in fact considered the suitability of the appellant for promotion to a higher post at the time when his juniors wer e empanelled for purposes of promotion. If it had done so, the Zonal Promotion Committee would have recorded in its resolution that the appellant had been found to be unsuitable for promotion during the relevant time. It appears t hat the Zonal Promotion Committee had not considered the case of the appellant in the year 1977 in accordance with law. As mentioned earlier when the case of the appellant came up before the Zonal Promotion Committee for the first time o n December 5, 1977, it deferred the consideration of the case of the appellant on the ground that the relevant Confidential Reports were not available. Having thus deferred the consideration of the case of the appellant on that occasion, the Zonal Promotion Committee should have considered the case of the appellant when the relevant Confidential Reports were placed before it and passed an appropriate resolution instead of remarking that the case of the appellant could not be reopened. The reopening of a case arises only when it has been once considered and a decision is taken thereon. Since we have no material before us to show that there has been such a consideration earlier, the resolution of the Zonal Promotion Committee passed in May, 1979 stating that case of the appellant could not be reopened has to be treated as an ineffective one in the eye of law. It is, therefore, difficult to accept the submission made on behalf on the Corporation that the case of the appellant had been duly considered by the Zonal Promotion Committee for the purpose of including him in the 1970 panel. In these circumstances, we have no option but to issue a direction of the Corporation to consider the case of the appellant for being included in the 1970 panel. W | 1[ds]Having thus deferred the consideration of the case of the appellant on that occasion, the Zonal Promotion Committee should have considered the case of the appellant when the relevant Confidential Reports were placed before it and passed an appropriate resolution instead of remarking that the case of the appellant could not be reopened. The reopening of a case arises only when it has been once considered and a decision is taken thereon. Since we have no material before us to show that there has been such a consideration earlier, the resolution of the Zonal Promotion Committee passed in May, 1979 stating that case of the appellant could not be reopened has to be treated as an ineffective one in the eye of law. It is, therefore, difficult to accept the submission made on behalf on the Corporation that the case of the appellant had been duly considered by the Zonal Promotion Committee for the purpose of including him in the 1970 panel. In these circumstances, we have no option but to issue a direction of the Corporation to consider the case of the appellant for being included in the 1970 panel. We accordingly allow this appeal and issue a direction to the Corporation to consider the case of the appellant for promotion as on the date on which his immediate junior in the Northern Region in the year 1972, that is, Respondent No. 13 was promoted and if on such consideration the appellant is found suitable for promotion to promote him to the higher cadre and place him above such immediate junior in higher cadre. If the appellant is so promoted, the Corporation shall also give him all consequential benefits but he would not be entitled to any arrears of salary (the difference between the salary of the higher post and salary he had actually drawn) upto the date on which he rejoined his duties in the post in the Northern Region after he was retransferred. | 1 | 1,689 | 349 | ### 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.
### Input:
Thereafter the appellant was transferred to the Northern Region in November, 1976. After he joined his post in the Northern Region, the appellant realised that some of his juniors had been promoted to higher positions during the period wh en he had been working in the Eastern Region. He, therefore, made a representation on September 4, 1978 to the Managing Director of the Corporation that his cases for promotion to the higher cadre should be considered with effect from the date on which his immediate junior had been promoted. He made a further representation to the Personnel manager of the Corporation, on August 27, 1979 making a similar request. On January 20, 1980, he wrote to the Manager (Establishment) of the Corporation about his grievance and on January 30, 1980 to the Zonal Manager (North) of the Corporation. As these representations yielded no result, the appellant filed a writ petition under Article 226 of the Constitution before the High Court of Delhi in C.W.P. No. 371/81. That petition was dismissed in limine by the High Court of Delhi on March 11, 1981. This appeal by special leave is preferred against the aforesaid order of the High Court.The case of the appellant is that since he had been reposted to the Northern Region with the seniority which he hold before he was transferred to the Eastern Region, the Corporation should consider his case for promotion to the higher cadre as on the date on which his immediate junior was promote d and if he is found fit he should be given such promotion and placed above his immediate junior in the seniority list. He also claims that he should be accorded all consequential benefits.2. In this Court, the Corporation has filed a counter affidavit the deponent of which is Shri Madhusudan, Deputy Manager (Admn.), of the Corporation. In the said counter affidavit, it is admitted that before the appellant was re-transferred to the Northern Region, he had been given an assurance that his seniority in the Northern Region prior to his transfer to the Eastern Region would be restored. It is further stated that the case of the appellant was placed before the Zonal Promotion Committee of the Corporation at its meeting held on December 5, 1977 for considering his case for promotion to the post of Assistant Manager (Depot) against 1970 panel wherein his juniors were empanelled. As the Confidential Reports relating to the appellant for the years 1966 to 1968 were not available for assessment of his suitability, the Zonal Promotion Committee deferred his case but the appellant was, however, empanelled against 1976 panel on the basis of the available reports. The Confidential Reports for the years 1966 t o 1968 were later on traced and the case of the appellant was again placed before the Zonal Promotion Committee at its meeting held in May, 1979 for considering his claim for inclusion in the 1970 panel. Thereupon the Zonal Promotion Committee passed a cryptic resolution to the effect that `on the basis of records of his service, his case cannot be reopened. It is contended on behalf of the Corporation that since the promotion in question one to be made on the basis of selection, the appellant is not entitled to any relief. It may be mentioned here that the appellant was not informed by the Corporation that the Zonal Promotion Committee had found him unsuitable for being included in the 1970 panel. The records pertaining to t he proceedings of the Zonal Promotion Committee are not also placed before us. The resolution passed by the Zonal Promotion Committee does not convey the meaning which the Corporation wants to attribute to it viz. that the Zonal Promotion Committee had found on a consideration of the relevant Confidential Reports that the appellant was unsuitable for being included in the 1970 panel. The resolution passed by the Zonal Promotion Committee means that it was not willing to re open the case of the appellant on the basis of his service records. The resolution does not show that the Zonal Promotion Committee had in fact considered the suitability of the appellant for promotion to a higher post at the time when his juniors wer e empanelled for purposes of promotion. If it had done so, the Zonal Promotion Committee would have recorded in its resolution that the appellant had been found to be unsuitable for promotion during the relevant time. It appears t hat the Zonal Promotion Committee had not considered the case of the appellant in the year 1977 in accordance with law. As mentioned earlier when the case of the appellant came up before the Zonal Promotion Committee for the first time o n December 5, 1977, it deferred the consideration of the case of the appellant on the ground that the relevant Confidential Reports were not available. Having thus deferred the consideration of the case of the appellant on that occasion, the Zonal Promotion Committee should have considered the case of the appellant when the relevant Confidential Reports were placed before it and passed an appropriate resolution instead of remarking that the case of the appellant could not be reopened. The reopening of a case arises only when it has been once considered and a decision is taken thereon. Since we have no material before us to show that there has been such a consideration earlier, the resolution of the Zonal Promotion Committee passed in May, 1979 stating that case of the appellant could not be reopened has to be treated as an ineffective one in the eye of law. It is, therefore, difficult to accept the submission made on behalf on the Corporation that the case of the appellant had been duly considered by the Zonal Promotion Committee for the purpose of including him in the 1970 panel. In these circumstances, we have no option but to issue a direction of the Corporation to consider the case of the appellant for being included in the 1970 panel. W
### Response:
1
### Explanation:
Having thus deferred the consideration of the case of the appellant on that occasion, the Zonal Promotion Committee should have considered the case of the appellant when the relevant Confidential Reports were placed before it and passed an appropriate resolution instead of remarking that the case of the appellant could not be reopened. The reopening of a case arises only when it has been once considered and a decision is taken thereon. Since we have no material before us to show that there has been such a consideration earlier, the resolution of the Zonal Promotion Committee passed in May, 1979 stating that case of the appellant could not be reopened has to be treated as an ineffective one in the eye of law. It is, therefore, difficult to accept the submission made on behalf on the Corporation that the case of the appellant had been duly considered by the Zonal Promotion Committee for the purpose of including him in the 1970 panel. In these circumstances, we have no option but to issue a direction of the Corporation to consider the case of the appellant for being included in the 1970 panel. We accordingly allow this appeal and issue a direction to the Corporation to consider the case of the appellant for promotion as on the date on which his immediate junior in the Northern Region in the year 1972, that is, Respondent No. 13 was promoted and if on such consideration the appellant is found suitable for promotion to promote him to the higher cadre and place him above such immediate junior in higher cadre. If the appellant is so promoted, the Corporation shall also give him all consequential benefits but he would not be entitled to any arrears of salary (the difference between the salary of the higher post and salary he had actually drawn) upto the date on which he rejoined his duties in the post in the Northern Region after he was retransferred.
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KAYALULLA PARAMBATH MOIDU HAJI Vs. NAMBOODIYIL VINODAN | said property. Per contra, it is the claim of the respondent-defendant that the property shown in the margin of the written statement to an extent of 52 ½ cents belongs to the respondent-defendant and that the appellant- plaintiff was illegally claiming right over the said property. It is his specific case that the property is neither included in the assignment deed nor in the purchase certificate produced by the appellant-plaintiff. It is his further case that the said property belonged to his father Othenan by virtue of assignment from Puthiyottil Kanaran. It is his case that the title of Puthiyottil Kanaran under Exhibit-A15 is referable to Exhibit-A14 i.e. Document No. 2987 of 1924. It is the specific case of the respondent-defendant that after the death of his father, his mother and children applied for purchase certificate by filing Application being O.A. No. 7014 of 1976 to purchase the Jenmam right under Section 72 of the Kerala Land Reforms Act, 1963. It is his case that the Land Tribunal allowed the said application on 9th May 1977. Thereafter, the partition took place between the wife and children of Othenan in the year 1999. 16. The learned trial court in its order has observed that the survey number shown in the plaint schedule is R.S. 28/1A and the survey number of the property claimed by the respondent- defendant in the margin of the written statement is R.S. 30/1. It has further observed that from the report of the Advocate Commissioner it would reveal that the correct survey number of the disputed property would be either R.S. 119/1 or 119/2. However, the learned trial judge observed that the survey number does not have much relevance in the identification of the disputed property. 17. The learned Appellate Court, while dismissing the appeal, though observed that on inspection, the Advocate Commissioner could see some portion of a revetment in between the plots A and B which has been marked in Exhibit- C1 Plan. It goes on to observe that the said revetment cannot be treated as physical demarcation or boundary because the Advocate Commissioner is definite that he could not see anything to indicate that there had been such a boundary or revetment and that it was impossible to put up such a revetment throughout the length from east to west because it was a sloping rocky area wherein such a revetment cannot be put up. The learned Appellate Court further observed that when the plot A is admittedly in the possession of the appellant- plaintiff, the only finding possible is that the disputed plot B also is in his possession. The learned Appellate Court further observed that if the respondent-defendant claims title over the disputed property, then the only remedy available to him, is to recover it under the law. It goes on to observe that in the suit for injunction simpliciter, the only material issue is whether the appellant-plaintiff has got actual and exclusive possession over the entire plaint schedule property including the disputed portion. 18. It could thus clearly be seen that this is not a case where the appellant-plaintiff can be said to have a clear title over the suit property or that there is no cloud on appellant-plaintiffs title over the suit property. There is a serious dispute between the appellant-plaintiff and respondent-defendant with regard not only to title over the suit property but also its identification, which cannot be decided unless the entire documentary as well as oral evidence is appreciated in a full-fledged trial. 19. We find that the present case would be covered by clause (b) of paragraph 21 of the judgment of this Court in Anathula Sudhakar (supra). We find that, in the present case, the question of de jure possession has to be established on the basis of the title over the property. Since the said property is a vacant site, the issue of title would directly and substantially arise for consideration, inasmuch as without the finding thereon, it will not be possible to decide the issue of possession. As observed in clause (c) of paragraph 21 of the judgment cited supra, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in the suit for mere injunction. We do not find that the present case would fall in exception carved out in clause (d) in paragraph 21 of the judgment cited supra inasmuch as the matter involved cannot be said to be simple and straightforward wherein the Court would decide upon the issue regarding title, even in the suit for injunction. 20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and Another (2019) 17 SCC 692 : 11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction. 21. Another aspect which is required to be taken into consideration is that, in pursuance to the impugned judgment and order, the appellant-plaintiff has already amended the suit so as to claim a relief for declaration of title. A consequential amendment has also been made to the written statement by the respondent-defendant. In that view of the matter, it will be appropriate that the parties get their right adjudicated with regard to the declaration of title on merits. We therefore find no reason to interfere with the impugned judgment and order of the High Court. | 0[ds]11. The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar (supra) in paragraph 21, which read thus:-21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:(a) Where a cloud is raised over the plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202 ]). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.12. It could thus be seen that this Court in unequivocal terms has held that where the plaintiffs title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.13. No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.15. From the perusal of the pleadings, it could be seen that it is the case of the appellant-plaintiff that he derives the title to the suit property on the basis of registered assignment deed No. 110 of 1977.18. It could thus clearly be seen that this is not a case where the appellant-plaintiff can be said to have a clear title over the suit property or that there is no cloud on appellant-plaintiffs title over the suit property. There is a serious dispute between the appellant-plaintiff and respondent-defendant with regard not only to title over the suit property but also its identification, which cannot be decided unless the entire documentary as well as oral evidence is appreciated in a full-fledged trial.19. We find that the present case would be covered by clause (b) of paragraph 21 of the judgment of this Court in Anathula Sudhakar (supra). We find that, in the present case, the question of de jure possession has to be established on the basis of the title over the property. Since the said property is a vacant site, the issue of title would directly and substantially arise for consideration, inasmuch as without the finding thereon, it will not be possible to decide the issue of possession. As observed in clause (c) of paragraph 21 of the judgment cited supra, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in the suit for mere injunction. We do not find that the present case would fall in exception carved out in clause (d) in paragraph 21 of the judgment cited supra inasmuch as the matter involved cannot be said to be simple and straightforward wherein the Court would decide upon the issue regarding title, even in the suit for injunction.20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and Another (2019) 17 SCC 692 :11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.21. Another aspect which is required to be taken into consideration is that, in pursuance to the impugned judgment and order, the appellant-plaintiff has already amended the suit so as to claim a relief for declaration of title. A consequential amendment has also been made to the written statement by the respondent-defendant. In that view of the matter, it will be appropriate that the parties get their right adjudicated with regard to the declaration of title on merits. We therefore find no reason to interfere with the impugned judgment and order of the High Court. | 0 | 3,445 | 1,319 | ### Instruction:
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said property. Per contra, it is the claim of the respondent-defendant that the property shown in the margin of the written statement to an extent of 52 ½ cents belongs to the respondent-defendant and that the appellant- plaintiff was illegally claiming right over the said property. It is his specific case that the property is neither included in the assignment deed nor in the purchase certificate produced by the appellant-plaintiff. It is his further case that the said property belonged to his father Othenan by virtue of assignment from Puthiyottil Kanaran. It is his case that the title of Puthiyottil Kanaran under Exhibit-A15 is referable to Exhibit-A14 i.e. Document No. 2987 of 1924. It is the specific case of the respondent-defendant that after the death of his father, his mother and children applied for purchase certificate by filing Application being O.A. No. 7014 of 1976 to purchase the Jenmam right under Section 72 of the Kerala Land Reforms Act, 1963. It is his case that the Land Tribunal allowed the said application on 9th May 1977. Thereafter, the partition took place between the wife and children of Othenan in the year 1999. 16. The learned trial court in its order has observed that the survey number shown in the plaint schedule is R.S. 28/1A and the survey number of the property claimed by the respondent- defendant in the margin of the written statement is R.S. 30/1. It has further observed that from the report of the Advocate Commissioner it would reveal that the correct survey number of the disputed property would be either R.S. 119/1 or 119/2. However, the learned trial judge observed that the survey number does not have much relevance in the identification of the disputed property. 17. The learned Appellate Court, while dismissing the appeal, though observed that on inspection, the Advocate Commissioner could see some portion of a revetment in between the plots A and B which has been marked in Exhibit- C1 Plan. It goes on to observe that the said revetment cannot be treated as physical demarcation or boundary because the Advocate Commissioner is definite that he could not see anything to indicate that there had been such a boundary or revetment and that it was impossible to put up such a revetment throughout the length from east to west because it was a sloping rocky area wherein such a revetment cannot be put up. The learned Appellate Court further observed that when the plot A is admittedly in the possession of the appellant- plaintiff, the only finding possible is that the disputed plot B also is in his possession. The learned Appellate Court further observed that if the respondent-defendant claims title over the disputed property, then the only remedy available to him, is to recover it under the law. It goes on to observe that in the suit for injunction simpliciter, the only material issue is whether the appellant-plaintiff has got actual and exclusive possession over the entire plaint schedule property including the disputed portion. 18. It could thus clearly be seen that this is not a case where the appellant-plaintiff can be said to have a clear title over the suit property or that there is no cloud on appellant-plaintiffs title over the suit property. There is a serious dispute between the appellant-plaintiff and respondent-defendant with regard not only to title over the suit property but also its identification, which cannot be decided unless the entire documentary as well as oral evidence is appreciated in a full-fledged trial. 19. We find that the present case would be covered by clause (b) of paragraph 21 of the judgment of this Court in Anathula Sudhakar (supra). We find that, in the present case, the question of de jure possession has to be established on the basis of the title over the property. Since the said property is a vacant site, the issue of title would directly and substantially arise for consideration, inasmuch as without the finding thereon, it will not be possible to decide the issue of possession. As observed in clause (c) of paragraph 21 of the judgment cited supra, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in the suit for mere injunction. We do not find that the present case would fall in exception carved out in clause (d) in paragraph 21 of the judgment cited supra inasmuch as the matter involved cannot be said to be simple and straightforward wherein the Court would decide upon the issue regarding title, even in the suit for injunction. 20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and Another (2019) 17 SCC 692 : 11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction. 21. Another aspect which is required to be taken into consideration is that, in pursuance to the impugned judgment and order, the appellant-plaintiff has already amended the suit so as to claim a relief for declaration of title. A consequential amendment has also been made to the written statement by the respondent-defendant. In that view of the matter, it will be appropriate that the parties get their right adjudicated with regard to the declaration of title on merits. We therefore find no reason to interfere with the impugned judgment and order of the High Court.
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case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202 ]). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.12. It could thus be seen that this Court in unequivocal terms has held that where the plaintiffs title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.13. No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.15. From the perusal of the pleadings, it could be seen that it is the case of the appellant-plaintiff that he derives the title to the suit property on the basis of registered assignment deed No. 110 of 1977.18. It could thus clearly be seen that this is not a case where the appellant-plaintiff can be said to have a clear title over the suit property or that there is no cloud on appellant-plaintiffs title over the suit property. There is a serious dispute between the appellant-plaintiff and respondent-defendant with regard not only to title over the suit property but also its identification, which cannot be decided unless the entire documentary as well as oral evidence is appreciated in a full-fledged trial.19. We find that the present case would be covered by clause (b) of paragraph 21 of the judgment of this Court in Anathula Sudhakar (supra). We find that, in the present case, the question of de jure possession has to be established on the basis of the title over the property. Since the said property is a vacant site, the issue of title would directly and substantially arise for consideration, inasmuch as without the finding thereon, it will not be possible to decide the issue of possession. As observed in clause (c) of paragraph 21 of the judgment cited supra, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in the suit for mere injunction. We do not find that the present case would fall in exception carved out in clause (d) in paragraph 21 of the judgment cited supra inasmuch as the matter involved cannot be said to be simple and straightforward wherein the Court would decide upon the issue regarding title, even in the suit for injunction.20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and Another (2019) 17 SCC 692 :11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.21. Another aspect which is required to be taken into consideration is that, in pursuance to the impugned judgment and order, the appellant-plaintiff has already amended the suit so as to claim a relief for declaration of title. A consequential amendment has also been made to the written statement by the respondent-defendant. In that view of the matter, it will be appropriate that the parties get their right adjudicated with regard to the declaration of title on merits. We therefore find no reason to interfere with the impugned judgment and order of the High Court.
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A. Subair Vs. State Of Kerala | We were taken through the evidence of PW-10 and, in our considered view, his evidence suffers from serious infirmities. The Special Judge as well as the High court were not even clear about the place where PW-10 has positioned himself. He was not within the hearing range that he could hear the conversation that is said to have taken place between the complainant and the appellant. The defence of the appellant was that the complainant attempted to thrust the currency notes into his pocket. PW-10 stated that the currency notes (M.O. 1 series) were handed over by the complainant and accepted by the appellant through the counter/window but admittedly the complainant was found inside the office room when PW-12 reached. If the amount had already been handed over by the complainant to the appellant through the counter/window, where was an occasion for the complainant to be inside the office room where the appellant was said to be sitting. This casts serious doubt about the prosecution case and, more particularly, the evidence of PW-10 that the amount was handed over by the complainant from outside the window and accepted by the appellant while sitting inside the room. 17. The High Court noticed: "But why was CW-1 (complainant) found inside the office room? Though such a specific version has not at all been given by the prosecution, probabilities unmistakably suggest that the presence of complainant inside the room obviously must have been necessarily to sign the acknowledgment on Ext. P-23(a). Specific evidence, I repeat is not available on the point." Strangely, the High Court made out a new case in favour of prosecution although it was not stated by PW-10 nor anyone that the complainant entered the room, after handing over money to the accused, to sign the acknowledgement on the register [Ext. P-23(a)]. As a matter of fact the presence of the complainant inside the room renders the evidence of PW-10 highly doubtful. 18. In our view, with such interested evidence of PW-10, who is a police constable and subordinate to PW-12, it would be not only unsafe but dangerous to rest conviction upon his testimony.19. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.20. The High Court drew presumption under Section 20 of the Act for charge under Section 7. Based on that, it was held that the prosecution has proved the offence punishable under Section 7 of the Act. 21. Section 20 of the Act, 1988 reads thus:- "20. Presumption where public servant accepts gratification other than legal remuneration. –(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.(2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration ) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn." 22. Sub-Section (3) is a "non-obstante clause". It provides that where the gratification is trivial and the Court is of opinion that no inference of corruption may fairly be drawn, it may decline to draw the presumption as referred to in sub-Sections (1) and (2). In other words, the Court is not bound to draw a presumption under Section 20 where the alleged gratification is too trivial. In a case such as this an inference of corruption may not be fairly drawn as the alleged demand was of Rs. 25/- only. In our view, the High Court was not justified in drawing the presumption under Section 20 and holding that offence punishable under Section 7 of the Act was proved. 23. Mere recovery of currency notes (Rs. 20/- and Rs.5/-) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt. | 1[ds]8. Insofar as Section 13 (1)(d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.Pertinently, Manaf (complainant) has not been tendered in evidence by the prosecution.(IO) in his entire deposition has not stated a word as to why Manaf was not examined or why it was not possible to tender him in evidence. In the absence of examination of the complainant, there is no substantive evidence to prove the factum of demand. The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification ofof the complainant. We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for theof the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the Court.is concerned, he did not fully support the case of prosecution. He deposed that he had an ear attack two months before recording of his deposition and due to the illness and the treatment, he could not recollect the details of the incident. He also stated that he was suffering from depressive psychosis. His evidence does not help the case of the prosecution at all. Thus, the evidence of two independent witnesses does not advance the prosecution case.16. As a matter of fact, the Special Judge as well as the High Court heavily relied upon the deposition ofin support of the prosecution case. We were taken through the evidence ofand, in our considered view, his evidence suffers from serious infirmities. The Special Judge as well as the High court were not even clear about the place wherehas positioned himself. He was not within the hearing range that he could hear the conversation that is said to have taken place between the complainant and the appellant. The defence of the appellant was that the complainant attempted to thrust the currency notes into his pocket.stated that the currency notes (M.O. 1 series) were handed over by the complainant and accepted by the appellant through the counter/window but admittedly the complainant was found inside the office room whenreached. If the amount had already been handed over by the complainant to the appellant through the counter/window, where was an occasion for the complainant to be inside the office room where the appellant was said to be sitting. This casts serious doubt about the prosecution case and, more particularly, the evidence ofthat the amount was handed over by the complainant from outside the window and accepted by the appellant while sitting inside the room.In our view, with such interested evidence ofwho is a police constable and subordinate toit would be not only unsafe but dangerous to rest conviction upon his testimony.19. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.20. The High Court drew presumption under Section 20 of the Act for charge under Section 7. Based on that, it was held that the prosecution has proved the offence punishable under Section 7 of the Act.Mere recovery of currency notes (Rs. 20/) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt. | 1 | 3,516 | 920 | ### Instruction:
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We were taken through the evidence of PW-10 and, in our considered view, his evidence suffers from serious infirmities. The Special Judge as well as the High court were not even clear about the place where PW-10 has positioned himself. He was not within the hearing range that he could hear the conversation that is said to have taken place between the complainant and the appellant. The defence of the appellant was that the complainant attempted to thrust the currency notes into his pocket. PW-10 stated that the currency notes (M.O. 1 series) were handed over by the complainant and accepted by the appellant through the counter/window but admittedly the complainant was found inside the office room when PW-12 reached. If the amount had already been handed over by the complainant to the appellant through the counter/window, where was an occasion for the complainant to be inside the office room where the appellant was said to be sitting. This casts serious doubt about the prosecution case and, more particularly, the evidence of PW-10 that the amount was handed over by the complainant from outside the window and accepted by the appellant while sitting inside the room. 17. The High Court noticed: "But why was CW-1 (complainant) found inside the office room? Though such a specific version has not at all been given by the prosecution, probabilities unmistakably suggest that the presence of complainant inside the room obviously must have been necessarily to sign the acknowledgment on Ext. P-23(a). Specific evidence, I repeat is not available on the point." Strangely, the High Court made out a new case in favour of prosecution although it was not stated by PW-10 nor anyone that the complainant entered the room, after handing over money to the accused, to sign the acknowledgement on the register [Ext. P-23(a)]. As a matter of fact the presence of the complainant inside the room renders the evidence of PW-10 highly doubtful. 18. In our view, with such interested evidence of PW-10, who is a police constable and subordinate to PW-12, it would be not only unsafe but dangerous to rest conviction upon his testimony.19. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.20. The High Court drew presumption under Section 20 of the Act for charge under Section 7. Based on that, it was held that the prosecution has proved the offence punishable under Section 7 of the Act. 21. Section 20 of the Act, 1988 reads thus:- "20. Presumption where public servant accepts gratification other than legal remuneration. –(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.(2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration ) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn." 22. Sub-Section (3) is a "non-obstante clause". It provides that where the gratification is trivial and the Court is of opinion that no inference of corruption may fairly be drawn, it may decline to draw the presumption as referred to in sub-Sections (1) and (2). In other words, the Court is not bound to draw a presumption under Section 20 where the alleged gratification is too trivial. In a case such as this an inference of corruption may not be fairly drawn as the alleged demand was of Rs. 25/- only. In our view, the High Court was not justified in drawing the presumption under Section 20 and holding that offence punishable under Section 7 of the Act was proved. 23. Mere recovery of currency notes (Rs. 20/- and Rs.5/-) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt.
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8. Insofar as Section 13 (1)(d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.Pertinently, Manaf (complainant) has not been tendered in evidence by the prosecution.(IO) in his entire deposition has not stated a word as to why Manaf was not examined or why it was not possible to tender him in evidence. In the absence of examination of the complainant, there is no substantive evidence to prove the factum of demand. The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification ofof the complainant. We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for theof the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the Court.is concerned, he did not fully support the case of prosecution. He deposed that he had an ear attack two months before recording of his deposition and due to the illness and the treatment, he could not recollect the details of the incident. He also stated that he was suffering from depressive psychosis. His evidence does not help the case of the prosecution at all. Thus, the evidence of two independent witnesses does not advance the prosecution case.16. As a matter of fact, the Special Judge as well as the High Court heavily relied upon the deposition ofin support of the prosecution case. We were taken through the evidence ofand, in our considered view, his evidence suffers from serious infirmities. The Special Judge as well as the High court were not even clear about the place wherehas positioned himself. He was not within the hearing range that he could hear the conversation that is said to have taken place between the complainant and the appellant. The defence of the appellant was that the complainant attempted to thrust the currency notes into his pocket.stated that the currency notes (M.O. 1 series) were handed over by the complainant and accepted by the appellant through the counter/window but admittedly the complainant was found inside the office room whenreached. If the amount had already been handed over by the complainant to the appellant through the counter/window, where was an occasion for the complainant to be inside the office room where the appellant was said to be sitting. This casts serious doubt about the prosecution case and, more particularly, the evidence ofthat the amount was handed over by the complainant from outside the window and accepted by the appellant while sitting inside the room.In our view, with such interested evidence ofwho is a police constable and subordinate toit would be not only unsafe but dangerous to rest conviction upon his testimony.19. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.20. The High Court drew presumption under Section 20 of the Act for charge under Section 7. Based on that, it was held that the prosecution has proved the offence punishable under Section 7 of the Act.Mere recovery of currency notes (Rs. 20/) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt.
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Rani Choudhury Vs. Lt. Col. Suraj Jit Choudhury | that it was improperly constituted is by mere analogy to be treated as a decree. I am unable to reconcile either in principle or in theory why an order rejecting a plaint should stand on a different footing from orders of dismissal for default, and yet one is a decree and the other is not. It is true that an order of rejection of a plaint has been expressly included in the definition of a decree but the legislature has included it and no analogy can be drawn therefrom . The question whether an adjudication is an order or decree is to be tested not by general principles, but by the expressions of the Code, and those words are to be construed in their plain and obvious sense."The learned Judge further held at p. 835:-"Here the position was that the plaintiff had got a decree as against the defendants in respect of a certain share; one of the defendants viz., the defendant No. 1, had preferred the appeal; excepting the question as to whether the appeal was maintainable in the absence of the minors, the heirs of the defendants No. 6, no other question was gone into, and in fact none could be litigated, and that is more important is what the rights of the defendant No. 4 were as against the plaintiff or whether the ex- parte decree passed against him was a good or valid one, or whether it should stand at all, could scarcely be determined in that appeal.There is no authority for the proposition that under circumstances such as these, the ex-parte decree can possibly be said to have merged in the decree by passed the appellate Court."13. It may be noticed that in neither of these two decisions there was or could be any occasion for interpreting the Explanation which came to be incorporated years later and these two decisions have mainly proceeded on the basis of merger of the decree pass ed by the Trial Court with the decree of the Appellate Court.The words used in Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal on merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal. The Explanation speaks of "the appeal has been disposed of on any ground other then the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that disposal of the appeal may be on any ground and the withdrawal of on appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal, and, the disposal of the appeal from the ex-parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation. If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decree of the Trial Court with the decree of the Appellate Court, it would not have been necessary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt, because the disposal of an appeal on the ground of withdrawal would not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree of the Appellate Court. The legislature could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words, "on the disposal of an appeal on any ground other than the ground that the appellant has withdrawn the appeal. The words used, "disposal of the appeal on any ground other than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same being dismissed for non- prosecution, Though in the case of such disposal of the appeal there will be no effective adjudication of the appeal on merits and the disposal of the appeal may not have the effect of the decree of the Trial Court appealed against being merged with any decree of the Appellate Court on the disposal of the appeal.The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner of doubt that when an appeal from the ex-parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal b y the appellant, the explanation is attracted, and the application for setting aside the ex-parte decree becomes in-competent after the disposal of the appeal and cannot be entertained.14. As in our view, the application for setting aside the ex-par te decree does not lie and cannot be entertained, in view of the provisions contained in the Explanation, it does not become necessary for us to go into the merits of the application to consider whether sufficient cause had been shown by the respondent for his nonappearance at the hearing at the date fixed and also for not preferring the application with n the time prescribed.15. | 1[ds]Order 9, rule 13 makes provision for the setting aside of an ex-parte decree against the defendant. It lays down the con ditions and also the procedure for the setting aside of an ex-parte decree. The Explanation was introduced into this provision by theCode of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) and it has come into force from 1.2 1977. The proc eeding by the wife was initiated on 1.9.1979 and the ex-parte decree of divorce in her favour was passed on 6.12.1979. The application by the husband has been made for setting aside this ex-parte decree. The Explanation, therefore, operates; the r eal question being whether in the facts and circumstances of this case, the bar created by the Explanation to the setting aside of an ex-parte decree is attracted to the presentplain reading of the Explanation clearly indicates t hat if any appeal against an ex-parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex-parte decree under order 9, rule 13 of the Code will be entertained. The words used in the Explanation are clear and unambiguous. The language used in the explanation clearly suggests that where there has been an appeal against a decree passed ex-parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under order 9, rule 13 of the Code for setting aside the ex-parte decree. An appeal may be disposed of on various grounds. It may be disposed of after proper hearing on merits and this is usually the normal way of disposal of an appeal. An appeal may be disposed of also for non prosecution thereof. Though the dismissal of an appeal on the ground of non prosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for non-prosecution results in the disposal thereof. An appeal may also be dismissed on the ground of limitation, if condonation of delay in filing the appeal is not allowed by the Court. An appeal may also be liable to be dismissed for non compliance with any condition relating to the filing of the appeal and also for other reasons. An appellant is also entitled to withdraw the appeal and the withdrawal of the appea l also results in the disposal of the appeal, though in such a case no merits of the appeal are adjudicated upon. The language used in the Explanation makes it clear that the withdrawal of an appeal is considered to be disposal of the appeal, a s contemplated in the Explanation. It is significant to note that though an appeal may be disposed of on very many grounds the Legislature has thought it fit to provide in the Explanation that only when an appeal against an ex-parte decree is dispo sed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of an application under order 9, rule 13 of the Code for setting aside the ex-parte decree will not apply. The Legislature must be presumed to kno w that there are various ways of disposal of an appeal. The Legislature has, however, thought it fit to provide that when an appeal has been preferred against an ex-parte decree, the disposal of the appeal on any ground excepting the solita ry ground of disposal of the appeal by withdrawal of the same by the appellant, will create a bar to the maintainability of an application under Order 9, rule 13 of theCode of Civil Procedure. By specifically providing in the Explanation that t he disposal of any appeal from the ex- parte decree on any ground other than the solitary ground of withdrawal of the appeal by the appellant, the legislative intent is made manifestly clear that in all other cases of the disposal of the appeal on a ny other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under order 9, rule 13 and no application will lie under order 9, rule 13 for the setting aside of an ex-parte decree. Wi thdrawal of an appeal by an appellant does not result in any adjudication on merits. Even then, the withdrawal of an appeal is still considered to be a disposal of the appeal; and the disposal of an appeal only on this ground of withdrawal of the appe al by the appellant, it is made clear in the Explanation, will not create any bar to the maintainability of the application under order 9, rule 13 of theCode of Civil Procedure. On a proper interpretation of the explanation we are of the opinion t hat where there has been an appeal against an ex- parte decree and the appeal has not been withdrawn by the appellant and has been disposed of on any ground, the application under order 9, rule 13 of theCode of Civil Procedure will not lie and cannot be entertained.In the instant case, an appeal had admittedly been filed against the ex-parte decree. The appeal was beyond time. The appellant had not withdrawn the appeal. The appellant had filed an application for condonation of delay in preferring the appeal. The application for condonation of delay had been rejected by the Court and the appeal had been dismissed an the ground of limitation. The dismissal of the appeal on the ground of limitation resulted in dis posal of the appeal though not on merits. The appeal filed against the ex-parte decree was, therefore, disposed of on grounds other than the ground that the appellant had withdrawn the appeal. The application under order 9, rule 13 after the dis posal of the appeal, therefore, became incompetent in view of the provisions contained in the Explanation and could not therefore be entertained by the Court. The view expressed by the High Court must, therefore. be held to bewords used in Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal on merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal. The Explanation speaks of "the appeal has been disposed of on any ground other then the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that disposal of the appeal may be on any ground and the withdrawal of on appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal, and, the disposal of the appeal from the ex-parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation. If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decree of the Trial Court with the decree of the Appellate Court, it would not have been necessary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt, because the disposal of an appeal on the ground of withdrawal would not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree of the Appellate Court. The legislature could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words, "on the disposal of an appeal on any ground other than the ground that the appellant has withdrawn the appeal. The words used, "disposal of the appeal on any ground other than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same being dismissed for non- prosecution, Though in the case of such disposal of the appeal there will be no effective adjudication of the appeal on merits and the disposal of the appeal may not have the effect of the decree of the Trial Court appealed against being merged with any decree of the Appellate Court on the disposal of the appeal.The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner of doubt that when an appeal from the ex-parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal b y the appellant, the explanation is attracted, and the application for setting aside the ex-parte decree becomes in-competent after the disposal of the appeal and cannot bein our view, the application for setting aside the ex-par te decree does not lie and cannot be entertained, in view of the provisions contained in the Explanation, it does not become necessary for us to go into the merits of the application to consider whether sufficient cause had been shown by the respondent for his nonappearance at the hearing at the date fixed and also for not preferring the application with n the time prescribed. | 1 | 7,045 | 1,781 | ### Instruction:
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that it was improperly constituted is by mere analogy to be treated as a decree. I am unable to reconcile either in principle or in theory why an order rejecting a plaint should stand on a different footing from orders of dismissal for default, and yet one is a decree and the other is not. It is true that an order of rejection of a plaint has been expressly included in the definition of a decree but the legislature has included it and no analogy can be drawn therefrom . The question whether an adjudication is an order or decree is to be tested not by general principles, but by the expressions of the Code, and those words are to be construed in their plain and obvious sense."The learned Judge further held at p. 835:-"Here the position was that the plaintiff had got a decree as against the defendants in respect of a certain share; one of the defendants viz., the defendant No. 1, had preferred the appeal; excepting the question as to whether the appeal was maintainable in the absence of the minors, the heirs of the defendants No. 6, no other question was gone into, and in fact none could be litigated, and that is more important is what the rights of the defendant No. 4 were as against the plaintiff or whether the ex- parte decree passed against him was a good or valid one, or whether it should stand at all, could scarcely be determined in that appeal.There is no authority for the proposition that under circumstances such as these, the ex-parte decree can possibly be said to have merged in the decree by passed the appellate Court."13. It may be noticed that in neither of these two decisions there was or could be any occasion for interpreting the Explanation which came to be incorporated years later and these two decisions have mainly proceeded on the basis of merger of the decree pass ed by the Trial Court with the decree of the Appellate Court.The words used in Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal on merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal. The Explanation speaks of "the appeal has been disposed of on any ground other then the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that disposal of the appeal may be on any ground and the withdrawal of on appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal, and, the disposal of the appeal from the ex-parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation. If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decree of the Trial Court with the decree of the Appellate Court, it would not have been necessary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt, because the disposal of an appeal on the ground of withdrawal would not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree of the Appellate Court. The legislature could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words, "on the disposal of an appeal on any ground other than the ground that the appellant has withdrawn the appeal. The words used, "disposal of the appeal on any ground other than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same being dismissed for non- prosecution, Though in the case of such disposal of the appeal there will be no effective adjudication of the appeal on merits and the disposal of the appeal may not have the effect of the decree of the Trial Court appealed against being merged with any decree of the Appellate Court on the disposal of the appeal.The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner of doubt that when an appeal from the ex-parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal b y the appellant, the explanation is attracted, and the application for setting aside the ex-parte decree becomes in-competent after the disposal of the appeal and cannot be entertained.14. As in our view, the application for setting aside the ex-par te decree does not lie and cannot be entertained, in view of the provisions contained in the Explanation, it does not become necessary for us to go into the merits of the application to consider whether sufficient cause had been shown by the respondent for his nonappearance at the hearing at the date fixed and also for not preferring the application with n the time prescribed.15.
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a ny other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under order 9, rule 13 and no application will lie under order 9, rule 13 for the setting aside of an ex-parte decree. Wi thdrawal of an appeal by an appellant does not result in any adjudication on merits. Even then, the withdrawal of an appeal is still considered to be a disposal of the appeal; and the disposal of an appeal only on this ground of withdrawal of the appe al by the appellant, it is made clear in the Explanation, will not create any bar to the maintainability of the application under order 9, rule 13 of theCode of Civil Procedure. On a proper interpretation of the explanation we are of the opinion t hat where there has been an appeal against an ex- parte decree and the appeal has not been withdrawn by the appellant and has been disposed of on any ground, the application under order 9, rule 13 of theCode of Civil Procedure will not lie and cannot be entertained.In the instant case, an appeal had admittedly been filed against the ex-parte decree. The appeal was beyond time. The appellant had not withdrawn the appeal. The appellant had filed an application for condonation of delay in preferring the appeal. The application for condonation of delay had been rejected by the Court and the appeal had been dismissed an the ground of limitation. The dismissal of the appeal on the ground of limitation resulted in dis posal of the appeal though not on merits. The appeal filed against the ex-parte decree was, therefore, disposed of on grounds other than the ground that the appellant had withdrawn the appeal. The application under order 9, rule 13 after the dis posal of the appeal, therefore, became incompetent in view of the provisions contained in the Explanation and could not therefore be entertained by the Court. The view expressed by the High Court must, therefore. be held to bewords used in Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal on merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal. The Explanation speaks of "the appeal has been disposed of on any ground other then the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that disposal of the appeal may be on any ground and the withdrawal of on appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal, and, the disposal of the appeal from the ex-parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation. If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decree of the Trial Court with the decree of the Appellate Court, it would not have been necessary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt, because the disposal of an appeal on the ground of withdrawal would not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree of the Appellate Court. The legislature could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words, "on the disposal of an appeal on any ground other than the ground that the appellant has withdrawn the appeal. The words used, "disposal of the appeal on any ground other than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same being dismissed for non- prosecution, Though in the case of such disposal of the appeal there will be no effective adjudication of the appeal on merits and the disposal of the appeal may not have the effect of the decree of the Trial Court appealed against being merged with any decree of the Appellate Court on the disposal of the appeal.The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner of doubt that when an appeal from the ex-parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal b y the appellant, the explanation is attracted, and the application for setting aside the ex-parte decree becomes in-competent after the disposal of the appeal and cannot bein our view, the application for setting aside the ex-par te decree does not lie and cannot be entertained, in view of the provisions contained in the Explanation, it does not become necessary for us to go into the merits of the application to consider whether sufficient cause had been shown by the respondent for his nonappearance at the hearing at the date fixed and also for not preferring the application with n the time prescribed.
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Sarla Performance Fibers Ltd Vs. C.C.E.C.,Vapi | cabled or fancy yarn of chapter 50 to 55 but may be distinguished from them by the characteristic of gimped yarn that the core does not itself undergo a twisting with the cover threads. In gimped yarn, the yarn forming the loop is wrapped around the core yarn and is held on place by binder or tie yarn. The manufacture requires two distinct twisting operation after the yarn is first made, it is twisted opposite direction to establish the desired effect. It may have the loops formed by a very soft and slackly twisted yarn. These yarns falls under Chapter Heading 56.06 of the Tariff as special yarns. In view of the above, and in view of the fact that the yarn forming the loop is not wrapped around the core yarn is not held in place by a binder or the tie yarn like in gimped yarn and loops are not formed by twisted yarn. These yarns viz. Polyester/Nylon covered yarn can not fall under Chapter heading 56.06 of the Central Excise Tariff Act, 1985.8. It therefore appears that Air mingled yarns manufactured by M/s. Sarla Polyester Ltd. comprise a Polyester Yarn (Polyester) or Nylon Yarn (Polyamide) air mingled with Lycra/Spandex (polyurethane). The assessee using lycra or spandex as core yarn and covering the same with polyester or nylon yarn, a non elastic multi filament yarn of Polyester/Nylon is fed through an air jet with stretched lycra/spandex. In the air jet, due to compressed air, the filaments of polyester/nylon get intermingled with that of Lycra/Spandex. The resulting yarn would therefore merit classification based on the principle of pre-dominance of textile material used. Since the air mingled yarn contain more polyester or nylon by weight vis-a-vis Lycra/Spandex such yarns merit classification under Chapter Sub Heading No. 5402.61 or 5402.62 as Synthetic Filament Yarn of Nylon or Polyester respectively. This classification is decided by virtue of Section Note 2(A) to section XI covering chapter 50 to 63 of the first schedule to Central Excise Tariff Act, 1985. Since M/s. Sarla Polyester Ltd., Silvassa are having intermingling machinery at their manufacturing unit, they are adopting the intermingling/interlacing process for covering lycra/spandex. Further the unit does not have facility to manufacture spun yarn and cannot manufacture crimped yarn. The unit has the air mingling machinery capable of producing air mingled yarn only. Therefore yarn manufactured by them cannot be classified Crimped Yarn under CH. Heading no.56.06 of CET. The interlaced/intermingled yarn manufactured by undertaking air mingling operation is to be classified by resorting to section note 2(a) to section XI i.e. by principle of pre-dominance of textile material used. The goods manufactured by M/s. Sarla Polyester Ltd. would therefore fall under chapter Heading no.5402.61 and 5402.62 as Nylon and Polyester respectively predominate in weight over lycra/spandex."14. In nutshell, having regard to the use of Nylon and Lycra in the ratio of 90:10, the classification was proposed on the principle of pre-dominance of textile material used. The Order-in-Original was passed by the Assessing Authority, taking note of the dominance of Polyester or Nylon yarn in the manufacturing of the said product. The Assessing Authority also referred to tests reports from Man Made Textile Research Association (MANTRA) which also supported the version of the Revenue. Contention of the assessees that the product should be covered under Chapter Heading 56.06 was turned down by the Assessing Officer in the following manner:"28. The assessee has claimed the classification of their covering yarn manufactured by way of attachment by applying pressurized air in Air Jet machine under Chapter Sub-heading 56.06 of Central Excise Tariff. Accordingly, on perusal of said entry in Central Excise tariff, it is seen that Chapter Sub-heading No. 56.06 covered gimped yarn, and strop and the like of heading No. 54.04 or 54.05, gimped (other than those of Heading No.56.05 and gimped horse hair); chenille yarn (including flock chenille yarn); lop wale yarn.Since the assessee has claimed polyester and Nylon covering yarn as gimped yarn under Chapter Sub-heading 56.06 of Central Excise Tariff, it may be mentioned here that as per the Explanatory Notes to HSN, Gimped yarn are composed of core, usually of one or more textile yarns, around which other yarns are wound spirally. In gimped yarn, the yarn forming the loop is wrapped around the core yarn and is held in place by binder or tie yarn. However as per the test report of MANTRA, Surat, which has not been challenged or disputed by the assessee, the polyester or Nylon yarn did not wound spirally and even did not wrapped around the Lycra/Spandex (elastoemeric) yarn or it was not held in place by a binder or tie yarn. It was merely attached with each other due to pressurized air by way of technique of intermingling. Therefore the yarns in question cannot be said to be composed of core of yarns. And as such it is not gimped yarn."15. The Appellate Authority while affirming the order of the Assessing Officer also referred to Rule 3(a) of the Rules of Interpretation as per which the heading which provides the most specific description is to be preferred to the heading providing a more general description. The Tribunal has revisited the entire issue taking into consideration all the aspects of the matter and in the light of tests reports of MANTRA, affirmed the findings of the Authorities below that the products manufactured by assessees are nothing but air mingled yarn and, therefore, cannot be classified under Chapter No. 56 in view of the fact that it does not contain a core around which another yarn has been woven. Thus, a categorical finding is arrived at that the core does not itself undergo twisting with covered threads. On the basis of the aforesaid concurrent finding of the Authorities below rejecting the contentions of the assessees that the product in question was a gimped yarn, supported with cogent and valid reasons, we do not find any merit in any of the contentions raised by the appellants before us. | 0[ds]13. At the outset, it may be pointed out that there is no dispute that two yarns are used in the manufacture of the product, namely, Nylon and Lycra. At the same time, however, it is also an admitted fact that in Polyester Covered Yarn, the percentage of Lycra is only nine to ten and it is Polyester/Nylon which isused ranging from 91% to 93%. Taking note of these facts and definition of gimped yarn in Explanation (A) to Chapter Heading 56.00 under Section XI of Explanatory note to HSN, it was stated in the show cause notice that the product could not be treated as gimped yarn.In nutshell, having regard to the use of Nylon and Lycra in the ratio of 90:10, the classification was proposed on the principle ofof textile material used. Thewas passed by the Assessing Authority, taking note of the dominance of Polyester or Nylon yarn in the manufacturing of the said product. The Assessing Authority also referred to tests reports from Man Made Textile Research Association (MANTRA) which also supported the version of the Revenue.The Appellate Authority while affirming the order of the Assessing Officer also referred to Rule 3(a) of the Rules of Interpretation as per which the heading which provides the most specific description is to be preferred to the heading providing a more general description. The Tribunal has revisited the entire issue taking into consideration all the aspects of the matter and in the light of tests reports of MANTRA, affirmed the findings of the Authorities below that the products manufactured by assessees are nothing but air mingled yarn and, therefore, cannot be classified under Chapter No. 56 in view of the fact that it does not contain a core around which another yarn has been woven. Thus, a categorical finding is arrived at that the core does not itself undergo twisting with covered threads. On the basis of the aforesaid concurrent finding of the Authorities below rejecting the contentions of the assessees that the product in question was a gimped yarn, supported with cogent and valid reasons, we do not find any merit in any of the contentions raised by the appellants before | 0 | 2,966 | 401 | ### 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:
cabled or fancy yarn of chapter 50 to 55 but may be distinguished from them by the characteristic of gimped yarn that the core does not itself undergo a twisting with the cover threads. In gimped yarn, the yarn forming the loop is wrapped around the core yarn and is held on place by binder or tie yarn. The manufacture requires two distinct twisting operation after the yarn is first made, it is twisted opposite direction to establish the desired effect. It may have the loops formed by a very soft and slackly twisted yarn. These yarns falls under Chapter Heading 56.06 of the Tariff as special yarns. In view of the above, and in view of the fact that the yarn forming the loop is not wrapped around the core yarn is not held in place by a binder or the tie yarn like in gimped yarn and loops are not formed by twisted yarn. These yarns viz. Polyester/Nylon covered yarn can not fall under Chapter heading 56.06 of the Central Excise Tariff Act, 1985.8. It therefore appears that Air mingled yarns manufactured by M/s. Sarla Polyester Ltd. comprise a Polyester Yarn (Polyester) or Nylon Yarn (Polyamide) air mingled with Lycra/Spandex (polyurethane). The assessee using lycra or spandex as core yarn and covering the same with polyester or nylon yarn, a non elastic multi filament yarn of Polyester/Nylon is fed through an air jet with stretched lycra/spandex. In the air jet, due to compressed air, the filaments of polyester/nylon get intermingled with that of Lycra/Spandex. The resulting yarn would therefore merit classification based on the principle of pre-dominance of textile material used. Since the air mingled yarn contain more polyester or nylon by weight vis-a-vis Lycra/Spandex such yarns merit classification under Chapter Sub Heading No. 5402.61 or 5402.62 as Synthetic Filament Yarn of Nylon or Polyester respectively. This classification is decided by virtue of Section Note 2(A) to section XI covering chapter 50 to 63 of the first schedule to Central Excise Tariff Act, 1985. Since M/s. Sarla Polyester Ltd., Silvassa are having intermingling machinery at their manufacturing unit, they are adopting the intermingling/interlacing process for covering lycra/spandex. Further the unit does not have facility to manufacture spun yarn and cannot manufacture crimped yarn. The unit has the air mingling machinery capable of producing air mingled yarn only. Therefore yarn manufactured by them cannot be classified Crimped Yarn under CH. Heading no.56.06 of CET. The interlaced/intermingled yarn manufactured by undertaking air mingling operation is to be classified by resorting to section note 2(a) to section XI i.e. by principle of pre-dominance of textile material used. The goods manufactured by M/s. Sarla Polyester Ltd. would therefore fall under chapter Heading no.5402.61 and 5402.62 as Nylon and Polyester respectively predominate in weight over lycra/spandex."14. In nutshell, having regard to the use of Nylon and Lycra in the ratio of 90:10, the classification was proposed on the principle of pre-dominance of textile material used. The Order-in-Original was passed by the Assessing Authority, taking note of the dominance of Polyester or Nylon yarn in the manufacturing of the said product. The Assessing Authority also referred to tests reports from Man Made Textile Research Association (MANTRA) which also supported the version of the Revenue. Contention of the assessees that the product should be covered under Chapter Heading 56.06 was turned down by the Assessing Officer in the following manner:"28. The assessee has claimed the classification of their covering yarn manufactured by way of attachment by applying pressurized air in Air Jet machine under Chapter Sub-heading 56.06 of Central Excise Tariff. Accordingly, on perusal of said entry in Central Excise tariff, it is seen that Chapter Sub-heading No. 56.06 covered gimped yarn, and strop and the like of heading No. 54.04 or 54.05, gimped (other than those of Heading No.56.05 and gimped horse hair); chenille yarn (including flock chenille yarn); lop wale yarn.Since the assessee has claimed polyester and Nylon covering yarn as gimped yarn under Chapter Sub-heading 56.06 of Central Excise Tariff, it may be mentioned here that as per the Explanatory Notes to HSN, Gimped yarn are composed of core, usually of one or more textile yarns, around which other yarns are wound spirally. In gimped yarn, the yarn forming the loop is wrapped around the core yarn and is held in place by binder or tie yarn. However as per the test report of MANTRA, Surat, which has not been challenged or disputed by the assessee, the polyester or Nylon yarn did not wound spirally and even did not wrapped around the Lycra/Spandex (elastoemeric) yarn or it was not held in place by a binder or tie yarn. It was merely attached with each other due to pressurized air by way of technique of intermingling. Therefore the yarns in question cannot be said to be composed of core of yarns. And as such it is not gimped yarn."15. The Appellate Authority while affirming the order of the Assessing Officer also referred to Rule 3(a) of the Rules of Interpretation as per which the heading which provides the most specific description is to be preferred to the heading providing a more general description. The Tribunal has revisited the entire issue taking into consideration all the aspects of the matter and in the light of tests reports of MANTRA, affirmed the findings of the Authorities below that the products manufactured by assessees are nothing but air mingled yarn and, therefore, cannot be classified under Chapter No. 56 in view of the fact that it does not contain a core around which another yarn has been woven. Thus, a categorical finding is arrived at that the core does not itself undergo twisting with covered threads. On the basis of the aforesaid concurrent finding of the Authorities below rejecting the contentions of the assessees that the product in question was a gimped yarn, supported with cogent and valid reasons, we do not find any merit in any of the contentions raised by the appellants before us.
### Response:
0
### Explanation:
13. At the outset, it may be pointed out that there is no dispute that two yarns are used in the manufacture of the product, namely, Nylon and Lycra. At the same time, however, it is also an admitted fact that in Polyester Covered Yarn, the percentage of Lycra is only nine to ten and it is Polyester/Nylon which isused ranging from 91% to 93%. Taking note of these facts and definition of gimped yarn in Explanation (A) to Chapter Heading 56.00 under Section XI of Explanatory note to HSN, it was stated in the show cause notice that the product could not be treated as gimped yarn.In nutshell, having regard to the use of Nylon and Lycra in the ratio of 90:10, the classification was proposed on the principle ofof textile material used. Thewas passed by the Assessing Authority, taking note of the dominance of Polyester or Nylon yarn in the manufacturing of the said product. The Assessing Authority also referred to tests reports from Man Made Textile Research Association (MANTRA) which also supported the version of the Revenue.The Appellate Authority while affirming the order of the Assessing Officer also referred to Rule 3(a) of the Rules of Interpretation as per which the heading which provides the most specific description is to be preferred to the heading providing a more general description. The Tribunal has revisited the entire issue taking into consideration all the aspects of the matter and in the light of tests reports of MANTRA, affirmed the findings of the Authorities below that the products manufactured by assessees are nothing but air mingled yarn and, therefore, cannot be classified under Chapter No. 56 in view of the fact that it does not contain a core around which another yarn has been woven. Thus, a categorical finding is arrived at that the core does not itself undergo twisting with covered threads. On the basis of the aforesaid concurrent finding of the Authorities below rejecting the contentions of the assessees that the product in question was a gimped yarn, supported with cogent and valid reasons, we do not find any merit in any of the contentions raised by the appellants before
|
Kelukutty & Ors Vs. Mammad & Ors | appeals. Kelus widow Manikka and his daughter Ichira as well as his brother Chekku died prior to 1944 long before the institution of the suits from which these appeals arise.4. It is not necessary to go into the history of the long litigation. As mentioned earlier, the only question for decision is as to who were the legal heirs of Kelu. It is now established that the suit properties are the self-acquired properties of Kelu. There is no dispute about it now. The High Court came to the conclusion that under the Makkathayam rule, Chandu succeeded to the estate of Kelu in preference to his wife, daughter and daughters children. The said conclusion is challenged in these appeals.5. The contesting parties are Hindus. As mentioned earlier, they are governed by Makkathayam rule. If the Hindu law as in force in South India had governed the succession with which we are concerned, the wife of Kelu should have succeeded to the estate of her husband in preference to the other heirs. The claims of the son and daughter of Ichira could come in only later. Therefore the principal question that we have to decide is whether the wife of Kelu succeeded to the estate of Kelu on his death.6. Mr. S. T. Desai appearing for the appellants contended that Makkathayam rule being a rule of customary law can only derogate the ordinary Hindu law to the extent it is satisfactorily established; in other respect the ordinary Hindu law should prevail; the contesting respondents having not established by positive evidence the claim put forward by them i.e. that Chandu was a preferential heir to Kelu, they must fail. On the other hand it was contended by Mr. Rama Reddy on behalf of the respondents that Kelu was governed by a customary law i.e. Makkathayam law and not by ordinary Hindu law. Hence all that we have to see is whether the customary law pleaded is well established on the basis of the decisions of courts. According to him the custom pleaded is of a community and not of any family. He urged that the custom in question to the extent relevant for our present purpose is well settled.7. The law relating to Thiyyas of the former Calicut Taluk had come up for decision before the Madras High Court in several cases. The approach to be adopted in speckling out the same is laid down in the decision of the Madras High Court in (Parambarathil) Pattukkayal Chakkutti and Others v. Kothembra Chandukutti (AIR 1927 Mad 877 .). Therein the Court observed :"We think the Makkathayam Thiyyas are governed by what is called the customary law and that when a question arises as to what is the rule of law governing them on any particular matter what we have to see is what is the rule of customary law obtaining amongst them in that matter and in cases which are not sufficiently governed by prior decisions, the question will have to be determined with reference to the evidence in the case."8. In Parichan v. Perachi and Others (ILR 15 Mad 281.), the High Court of Madras came to the conclusion that a community following Makkathayam rule must not be taken to be necessarily governed by the Hindu low of inheritance with all its incidents. On the basis of the evidence in that case, the court held that when a member of the Thiyya community in Calicut following that rule alleged and proved a custom that undivided brother succeeded to the self-acquired property in preference to widows, the court must give effect to it. Therein the competition was between the widow and the brother of the deceased who was a member of an undivided Tarwad and the property in dispute was the self-acquisition of the deceased.9. In Rama Menon v. Chathunni (ILR 17 Mad 184.), the High Court of Madras held that the ordinary rule of Marummakkattayam against compulsory partition is equally applicable to Tiyans who follow Makkathayam, no customs to the contrary having been made out.10. In Imbichi Kandan and Others v. Imbichi Pennu and Others (ILR 19 Mad 1.), the High Court held that on the death of a Thiyya of South Malabar following Makkathayam rule of inheritance, his mother, widow and daughter are entitled to succeed to his self-acquired properties in preference to his fathers divided brothers. In the course of the judgment, this is what the learned judges observed :"The decision of the subordinate Judge is entirely in accordance with the principles laid down in Parichan v. Perachi and Raman Menon v. Chathunni (supra). It has been decided that the rule of impartibility applies to Makkathayam Tiyans of Calicut, and in Parichan v. Perachi (supra) following the principle that self-acquired property lapses to the tarwad, it was held that the undivided brother succeeded in preference to the widow. But the case is quite different when the brothers are divided and have no community of interest as in this case. Here it is found that the only property in which plaintiffs and Kelukutti ever had a common interest is in the family burying place, which will certainly not constitute them an undivided tarwad. That being so, the mother, wife and daughter of Changaran who certainly belong to his tarwad are preferential heirs to his uncle who did not belong to his tarwad at all and had no community of interest with him."11. From these decisions it is clear that Thiyyas of former Calicut Taluk were governed by the customary law known as Makkathayam. Further as per the Makkathayam rule of inheritance an undivided brother of a deceased person succeeded to the self-acquired property of the deceased in preference to the wife and daughter of the deceased. If that is so the daughters son who comes after them under the general Hindu law cannot have a superior claim unless a custom to that effect is pleaded and proved. Such a custom is neither pleaded nor proved.12. No other contention was raised before us. | 0[ds]2. Before going into that question we may dispose of the contention advanced on behalf of the appellants that there is no satisfactory evidence to show that Chandu was the undivided brother of Kelu. The pleadings in this case proceed on the footing that Chandu and Kelu were the members of an undivided family. The evidence also discloses that fact. The judgments of the courts below proceed on that basis. Hence the appellants cannot now be permitted to raise the contention in this Court that Chandu is not proved to be the undivided brother of Kelu. In considering the question formulated above, we shall proceed on the basis that Kelu and Chandu were the members of an undivided family.The law relating to Thiyyas of the former Calicut Taluk had come up for decision before the Madras High Court in several cases. The approach to be adopted in speckling out the same is laid down in the decision of the Madras High Court in (Parambarathil) Pattukkayal Chakkutti and Others v. Kothembra Chandukutti (AIR 1927 Mad 877 .). Therein the Court observedthink the Makkathayam Thiyyas are governed by what is called the customary law and that when a question arises as to what is the rule of law governing them on any particular matter what we have to see is what is the rule of customary law obtaining amongst them in that matter and in cases which are not sufficiently governed by prior decisions, the question will have to be determined with reference to the evidence in the case.In Parichan v. Perachi and Others (ILR 15 Mad 281.), the High Court of Madras came to the conclusion that a community following Makkathayam rule must not be taken to be necessarily governed by the Hindu low of inheritance with all its incidents. On the basis of the evidence in that case, the court held that when a member of the Thiyya community in Calicut following that rule alleged and proved a custom that undivided brother succeeded to the self-acquired property in preference to widows, the court must give effect to it. Therein the competition was between the widow and the brother of the deceased who was a member of an undivided Tarwad and the property in dispute was the self-acquisition of the deceased.9. In Rama Menon v. Chathunni (ILR 17 Mad 184.), the High Court of Madras held that the ordinary rule of Marummakkattayam against compulsory partition is equally applicable to Tiyans who follow Makkathayam, no customs to the contrary having been made out.10. In Imbichi Kandan and Others v. Imbichi Pennu and Others (ILR 19 Mad 1.), the High Court held that on the death of a Thiyya of South Malabar following Makkathayam rule of inheritance, his mother, widow and daughter are entitled to succeed to his self-acquired properties in preference to his fathers divided brothers. In the course of the judgment, this is what the learned judges observeddecision of the subordinate Judge is entirely in accordance with the principles laid down in Parichan v. Perachi and Raman Menon v. Chathunni (supra). It has been decided that the rule of impartibility applies to Makkathayam Tiyans of Calicut, and in Parichan v. Perachi (supra) following the principle that self-acquired property lapses to the tarwad, it was held that the undivided brother succeeded in preference to the widow. But the case is quite different when the brothers are divided and have no community of interest as in this case. Here it is found that the only property in which plaintiffs and Kelukutti ever had a common interest is in the family burying place, which will certainly not constitute them an undivided tarwad. That being so, the mother, wife and daughter of Changaran who certainly belong to his tarwad are preferential heirs to his uncle who did not belong to his tarwad at all and had no community of interest with him.From these decisions it is clear that Thiyyas of former Calicut Taluk were governed by the customary law known as Makkathayam. Further as per the Makkathayam rule of inheritance an undivided brother of a deceased person succeeded to the self-acquired property of the deceased in preference to the wife and daughter of the deceased. If that is so the daughters son who comes after them under the general Hindu law cannot have a superior claim unless a custom to that effect is pleaded and proved. Such a custom is neither pleaded nor proved. | 0 | 1,337 | 799 | ### 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:
appeals. Kelus widow Manikka and his daughter Ichira as well as his brother Chekku died prior to 1944 long before the institution of the suits from which these appeals arise.4. It is not necessary to go into the history of the long litigation. As mentioned earlier, the only question for decision is as to who were the legal heirs of Kelu. It is now established that the suit properties are the self-acquired properties of Kelu. There is no dispute about it now. The High Court came to the conclusion that under the Makkathayam rule, Chandu succeeded to the estate of Kelu in preference to his wife, daughter and daughters children. The said conclusion is challenged in these appeals.5. The contesting parties are Hindus. As mentioned earlier, they are governed by Makkathayam rule. If the Hindu law as in force in South India had governed the succession with which we are concerned, the wife of Kelu should have succeeded to the estate of her husband in preference to the other heirs. The claims of the son and daughter of Ichira could come in only later. Therefore the principal question that we have to decide is whether the wife of Kelu succeeded to the estate of Kelu on his death.6. Mr. S. T. Desai appearing for the appellants contended that Makkathayam rule being a rule of customary law can only derogate the ordinary Hindu law to the extent it is satisfactorily established; in other respect the ordinary Hindu law should prevail; the contesting respondents having not established by positive evidence the claim put forward by them i.e. that Chandu was a preferential heir to Kelu, they must fail. On the other hand it was contended by Mr. Rama Reddy on behalf of the respondents that Kelu was governed by a customary law i.e. Makkathayam law and not by ordinary Hindu law. Hence all that we have to see is whether the customary law pleaded is well established on the basis of the decisions of courts. According to him the custom pleaded is of a community and not of any family. He urged that the custom in question to the extent relevant for our present purpose is well settled.7. The law relating to Thiyyas of the former Calicut Taluk had come up for decision before the Madras High Court in several cases. The approach to be adopted in speckling out the same is laid down in the decision of the Madras High Court in (Parambarathil) Pattukkayal Chakkutti and Others v. Kothembra Chandukutti (AIR 1927 Mad 877 .). Therein the Court observed :"We think the Makkathayam Thiyyas are governed by what is called the customary law and that when a question arises as to what is the rule of law governing them on any particular matter what we have to see is what is the rule of customary law obtaining amongst them in that matter and in cases which are not sufficiently governed by prior decisions, the question will have to be determined with reference to the evidence in the case."8. In Parichan v. Perachi and Others (ILR 15 Mad 281.), the High Court of Madras came to the conclusion that a community following Makkathayam rule must not be taken to be necessarily governed by the Hindu low of inheritance with all its incidents. On the basis of the evidence in that case, the court held that when a member of the Thiyya community in Calicut following that rule alleged and proved a custom that undivided brother succeeded to the self-acquired property in preference to widows, the court must give effect to it. Therein the competition was between the widow and the brother of the deceased who was a member of an undivided Tarwad and the property in dispute was the self-acquisition of the deceased.9. In Rama Menon v. Chathunni (ILR 17 Mad 184.), the High Court of Madras held that the ordinary rule of Marummakkattayam against compulsory partition is equally applicable to Tiyans who follow Makkathayam, no customs to the contrary having been made out.10. In Imbichi Kandan and Others v. Imbichi Pennu and Others (ILR 19 Mad 1.), the High Court held that on the death of a Thiyya of South Malabar following Makkathayam rule of inheritance, his mother, widow and daughter are entitled to succeed to his self-acquired properties in preference to his fathers divided brothers. In the course of the judgment, this is what the learned judges observed :"The decision of the subordinate Judge is entirely in accordance with the principles laid down in Parichan v. Perachi and Raman Menon v. Chathunni (supra). It has been decided that the rule of impartibility applies to Makkathayam Tiyans of Calicut, and in Parichan v. Perachi (supra) following the principle that self-acquired property lapses to the tarwad, it was held that the undivided brother succeeded in preference to the widow. But the case is quite different when the brothers are divided and have no community of interest as in this case. Here it is found that the only property in which plaintiffs and Kelukutti ever had a common interest is in the family burying place, which will certainly not constitute them an undivided tarwad. That being so, the mother, wife and daughter of Changaran who certainly belong to his tarwad are preferential heirs to his uncle who did not belong to his tarwad at all and had no community of interest with him."11. From these decisions it is clear that Thiyyas of former Calicut Taluk were governed by the customary law known as Makkathayam. Further as per the Makkathayam rule of inheritance an undivided brother of a deceased person succeeded to the self-acquired property of the deceased in preference to the wife and daughter of the deceased. If that is so the daughters son who comes after them under the general Hindu law cannot have a superior claim unless a custom to that effect is pleaded and proved. Such a custom is neither pleaded nor proved.12. No other contention was raised before us.
### Response:
0
### Explanation:
2. Before going into that question we may dispose of the contention advanced on behalf of the appellants that there is no satisfactory evidence to show that Chandu was the undivided brother of Kelu. The pleadings in this case proceed on the footing that Chandu and Kelu were the members of an undivided family. The evidence also discloses that fact. The judgments of the courts below proceed on that basis. Hence the appellants cannot now be permitted to raise the contention in this Court that Chandu is not proved to be the undivided brother of Kelu. In considering the question formulated above, we shall proceed on the basis that Kelu and Chandu were the members of an undivided family.The law relating to Thiyyas of the former Calicut Taluk had come up for decision before the Madras High Court in several cases. The approach to be adopted in speckling out the same is laid down in the decision of the Madras High Court in (Parambarathil) Pattukkayal Chakkutti and Others v. Kothembra Chandukutti (AIR 1927 Mad 877 .). Therein the Court observedthink the Makkathayam Thiyyas are governed by what is called the customary law and that when a question arises as to what is the rule of law governing them on any particular matter what we have to see is what is the rule of customary law obtaining amongst them in that matter and in cases which are not sufficiently governed by prior decisions, the question will have to be determined with reference to the evidence in the case.In Parichan v. Perachi and Others (ILR 15 Mad 281.), the High Court of Madras came to the conclusion that a community following Makkathayam rule must not be taken to be necessarily governed by the Hindu low of inheritance with all its incidents. On the basis of the evidence in that case, the court held that when a member of the Thiyya community in Calicut following that rule alleged and proved a custom that undivided brother succeeded to the self-acquired property in preference to widows, the court must give effect to it. Therein the competition was between the widow and the brother of the deceased who was a member of an undivided Tarwad and the property in dispute was the self-acquisition of the deceased.9. In Rama Menon v. Chathunni (ILR 17 Mad 184.), the High Court of Madras held that the ordinary rule of Marummakkattayam against compulsory partition is equally applicable to Tiyans who follow Makkathayam, no customs to the contrary having been made out.10. In Imbichi Kandan and Others v. Imbichi Pennu and Others (ILR 19 Mad 1.), the High Court held that on the death of a Thiyya of South Malabar following Makkathayam rule of inheritance, his mother, widow and daughter are entitled to succeed to his self-acquired properties in preference to his fathers divided brothers. In the course of the judgment, this is what the learned judges observeddecision of the subordinate Judge is entirely in accordance with the principles laid down in Parichan v. Perachi and Raman Menon v. Chathunni (supra). It has been decided that the rule of impartibility applies to Makkathayam Tiyans of Calicut, and in Parichan v. Perachi (supra) following the principle that self-acquired property lapses to the tarwad, it was held that the undivided brother succeeded in preference to the widow. But the case is quite different when the brothers are divided and have no community of interest as in this case. Here it is found that the only property in which plaintiffs and Kelukutti ever had a common interest is in the family burying place, which will certainly not constitute them an undivided tarwad. That being so, the mother, wife and daughter of Changaran who certainly belong to his tarwad are preferential heirs to his uncle who did not belong to his tarwad at all and had no community of interest with him.From these decisions it is clear that Thiyyas of former Calicut Taluk were governed by the customary law known as Makkathayam. Further as per the Makkathayam rule of inheritance an undivided brother of a deceased person succeeded to the self-acquired property of the deceased in preference to the wife and daughter of the deceased. If that is so the daughters son who comes after them under the general Hindu law cannot have a superior claim unless a custom to that effect is pleaded and proved. Such a custom is neither pleaded nor proved.
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YATINKUMAR JASUBHAI PATEL Vs. STATE OF GUJARAT | (supra) has reiterated the scheme of ?Institutional Preference? as framed in Dr. Pradeep Jain (supra) and has approved the ?Institutional Preference? confined to 50% of the total number of open seats. In that decision, this Court also took note of the subsequent decision in the case of Dinesh Kumar (Dr.) (II) v. Motilal Nehru Medical College, reported in (1986) 3 SCC 727 fixing the ?Institutional Preference? to the extent of 25%. However, after taking note of the said decision, this Court has reiterated the scheme framed in Dr. Pradeep Jain (supra) providing ?Institutional Preference? confined to 50% of the total number of open seats. In the case of Saurabh Dwivedi (supra), this Court has again approved the ?Institutional Preference?. Thus, right from 1971 onwards till 2017, consistently this Court has approved and/or permitted the ?Institutional Preference? in the Post Graduate Medical Courses.However, it is the case on behalf of the petitioners that in view of the introduction of the NEET Scheme and in view of Section 10D of the MCI Act, by which admissions are to be given on the basis of the merit in the NEET, such an ?Institutional Preference? would not be permissible. It is required to be noted that introduction of the NEET has, as such, nothing to do with any preference/Institutional Preference, more particularly the ?Institutional Preference? as approved by this Court time and again. The purpose and object of the introduction of the NEET was to conduct a uniform entrance examination for all medical educational institutions at the under-graduate level or post- graduate level and admissions at the under-graduate level and post-graduate level are to be given solely on the basis of the merits and/or marks obtained in the NEET examination only. It is required to be noted that earlier the respective universities including the Gujarat University used to hold examination for post-graduate admission to medical courses and now instead of such tests by the Gujarat University/concerned universities, merit is to be determined on the basis of the NEET examination results only and admissions are required to be given on the basis of such merits or marks obtained in NEET. The only obligation by virtue of introduction of NEET is that, once centralized admission test is conducted, the State, its agencies, universities and institutions cannot hold any separate test for the purpose of admission to Post-Graduate and PG and Diploma Courses and such seats are to be filled up by the State agencies, universities/institutions for preparing merit list as per the score obtained by the applicants in NEET examination and therefore by introduction of the NEET, Section 10D of the MCI, Act has been amended, consequently amendment to the Post-Graduate Education Regulations, 2000, admission to Post Graduate Courses are made providing for solely on the basis of the score secured by the candidates seeking admission based on centralized examination, i.e., NEET.10.4 Even while giving admissions in the State quota/institutional reservation quota, still the admissions are required to be given on the basis of the merits determined on the basis of the NEET examination results. Under the circumstances, introduction of the NEET Scheme, as such, has nothing to do with the ?Institutional Preference?. Therefore, the change by introduction of the NEET Scheme shall not affect the Institutional Preference/Reservation as approved by this Court from time to time in catena of decisions, more particularly the decisions referred to hereinabove. Under the guise of introduction of the NEET Scheme, the petitioners cannot be permitted to re-agitate and/or re-open the issue with respect to Institutional Preference which has been approved and settled by this Court in catena of decisions, more particularly the decisions referred to hereinabove.11. Now so far as the submission on behalf of the petitioners that if the 50% seats are reserved for State quota and if institutional preference/reservation is permitted to the extent of 50% of the total number of open seats, in that case, not a single seat in the State quota shall be available and therefore the percentage of Institutional Preference may be reduced to the extent of 25% or so is concerned, at the outset, it is required to be noted that as such the Institutional Preference to the extent of 50% of the total number of open seats has been approved by this Court in catena of decisions, more particularly the decisions referred to hereinabove. The decision of this Court in the case of Dinesh Kumar (Dr. )(II) (supra) permitting 25% Institutional Preference has been distinguished by a Constitution Bench of this Court in the case of Saurabh Chaudri(supra). Therefore, once the Institutional Preference to the extent of 50% of the total number of open seats has held to be permissible, in that case, thereafter it will be for the appropriate authority/State to consider how much percentage seats are to be reserved for Institutional Preference/Reservation. It will be in the realm of a policy decision and this Court cannot substitute the same, unless it is held to be arbitrary and/or mala fide and/or not permissible. As observed hereinabove, a five Judge Bench of this Court in the case of Saurabh Chaudri (supra) has categorically allowed/permitted/approved the Institutional Preference/Reservation in the post graduate medical courses to the extent of 50% of the total number of open seats.12. Therefore, for the reasons stated above and considering the decisions of this Court in the cases of Dr. Pradeep Jain (supra); a Constitution Bench decision of this Court in the case of Saurabh Chaudri (supra); and Saurabh Dwivedi (supra), Institutional Preference to the extent of 50% is approved and it is observed and held that introduction of the NEET Scheme shall not affect such Institutional Preference/Reservation. Such a regulation providing 50% Institutional Preference/Reservation shall not be in any way ultra vires to Section 10D of the MCI Act. Even otherwise, as observed hereinabove, even in the case of Institutional Preference/Reservation, the admissions in the post graduate courses are to be given on the basis of the merits and marks obtained in the NEET examination result only. | 0[ds]Thus, right from 1971 onwards till 2017, consistently this Court has approved and/or permitted the ?Institutional Preference? in the Post Graduate Medical Courses.However, it is the case on behalf of the petitioners that in view of the introduction of the NEET Scheme and in view of Section 10D of the MCI Act, by which admissions are to be given on the basis of the merit in the NEET, such an ?Institutional Preference? would not be permissible. It is required to be noted that introduction of the NEET has, as such, nothing to do with any preference/Institutional Preference, more particularly the ?Institutional Preference? as approved by this Court time and again. The purpose and object of the introduction of the NEET was to conduct a uniform entrance examination for all medical educational institutions at the under-graduate level or post- graduate level and admissions at the under-graduate level and post-graduate level are to be given solely on the basis of the merits and/or marks obtained in the NEET examination only. It is required to be noted that earlier the respective universities including the Gujarat University used to hold examination for post-graduate admission to medical courses and now instead of such tests by the Gujarat University/concerned universities, merit is to be determined on the basis of the NEET examination results only and admissions are required to be given on the basis of such merits or marks obtained in NEET. The only obligation by virtue of introduction of NEET is that, once centralized admission test is conducted, the State, its agencies, universities and institutions cannot hold any separate test for the purpose of admission to Post-Graduate and PG and Diploma Courses and such seats are to be filled up by the State agencies, universities/institutions for preparing merit list as per the score obtained by the applicants in NEET examination and therefore by introduction of the NEET, Section 10D of the MCI, Act has been amended, consequently amendment to the Post-Graduate Education Regulations, 2000, admission to Post Graduate Courses are made providing for solely on the basis of the score secured by the candidates seeking admission based on centralized examination, i.e., NEET.10.4 Even while giving admissions in the State quota/institutional reservation quota, still the admissions are required to be given on the basis of the merits determined on the basis of the NEET examination results. Under the circumstances, introduction of the NEET Scheme, as such, has nothing to do with the ?Institutional Preference?. Therefore, the change by introduction of the NEET Scheme shall not affect the Institutional Preference/Reservation as approved by this Court from time to time in catena of decisions, more particularly the decisions referred to hereinabove. Under the guise of introduction of the NEET Scheme, the petitioners cannot be permitted to re-agitate and/or re-open the issue with respect to Institutional Preference which has been approved and settled by this Court in catena of decisions, more particularly the decisions referred to hereinabove.11. Now so far as the submission on behalf of the petitioners that if the 50% seats are reserved for State quota and if institutional preference/reservation is permitted to the extent of 50% of the total number of open seats, in that case, not a single seat in the State quota shall be available and therefore the percentage of Institutional Preference may be reduced to the extent of 25% or so is concerned, at the outset, it is required to be noted that as such the Institutional Preference to the extent of 50% of the total number of open seats has been approved by this Court in catena of decisions, more particularly the decisions referred to hereinabove. The decision of this Court in the case of Dinesh Kumar (Dr. )(II) (supra) permitting 25% Institutional Preference has been distinguished by a Constitution Bench of this Court in the case of Saurabh Chaudri(supra). Therefore, once the Institutional Preference to the extent of 50% of the total number of open seats has held to be permissible, in that case, thereafter it will be for the appropriate authority/State to consider how much percentage seats are to be reserved for Institutional Preference/Reservation. It will be in the realm of a policy decision and this Court cannot substitute the same, unless it is held to be arbitrary and/or mala fide and/or not permissible. As observed hereinabove, a five Judge Bench of this Court in the case of Saurabh Chaudri (supra) has categorically allowed/permitted/approved the Institutional Preference/Reservation in the post graduate medical courses to the extent of 50% of the total number of open seats.12. Therefore, for the reasons stated above and considering the decisions of this Court in the cases of Dr. Pradeep Jain (supra); a Constitution Bench decision of this Court in the case of Saurabh Chaudri (supra); and Saurabh Dwivedi (supra), Institutional Preference to the extent of 50% is approved and it is observed and held that introduction of the NEET Scheme shall not affect such Institutional Preference/Reservation. Such a regulation providing 50% Institutional Preference/Reservation shall not be in any way ultra vires to Section 10D of the MCI Act. Even otherwise, as observed hereinabove, even in the case of Institutional Preference/Reservation, the admissions in the post graduate courses are to be given on the basis of the merits and marks obtained in the NEET examination result only. | 0 | 3,814 | 984 | ### 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:
(supra) has reiterated the scheme of ?Institutional Preference? as framed in Dr. Pradeep Jain (supra) and has approved the ?Institutional Preference? confined to 50% of the total number of open seats. In that decision, this Court also took note of the subsequent decision in the case of Dinesh Kumar (Dr.) (II) v. Motilal Nehru Medical College, reported in (1986) 3 SCC 727 fixing the ?Institutional Preference? to the extent of 25%. However, after taking note of the said decision, this Court has reiterated the scheme framed in Dr. Pradeep Jain (supra) providing ?Institutional Preference? confined to 50% of the total number of open seats. In the case of Saurabh Dwivedi (supra), this Court has again approved the ?Institutional Preference?. Thus, right from 1971 onwards till 2017, consistently this Court has approved and/or permitted the ?Institutional Preference? in the Post Graduate Medical Courses.However, it is the case on behalf of the petitioners that in view of the introduction of the NEET Scheme and in view of Section 10D of the MCI Act, by which admissions are to be given on the basis of the merit in the NEET, such an ?Institutional Preference? would not be permissible. It is required to be noted that introduction of the NEET has, as such, nothing to do with any preference/Institutional Preference, more particularly the ?Institutional Preference? as approved by this Court time and again. The purpose and object of the introduction of the NEET was to conduct a uniform entrance examination for all medical educational institutions at the under-graduate level or post- graduate level and admissions at the under-graduate level and post-graduate level are to be given solely on the basis of the merits and/or marks obtained in the NEET examination only. It is required to be noted that earlier the respective universities including the Gujarat University used to hold examination for post-graduate admission to medical courses and now instead of such tests by the Gujarat University/concerned universities, merit is to be determined on the basis of the NEET examination results only and admissions are required to be given on the basis of such merits or marks obtained in NEET. The only obligation by virtue of introduction of NEET is that, once centralized admission test is conducted, the State, its agencies, universities and institutions cannot hold any separate test for the purpose of admission to Post-Graduate and PG and Diploma Courses and such seats are to be filled up by the State agencies, universities/institutions for preparing merit list as per the score obtained by the applicants in NEET examination and therefore by introduction of the NEET, Section 10D of the MCI, Act has been amended, consequently amendment to the Post-Graduate Education Regulations, 2000, admission to Post Graduate Courses are made providing for solely on the basis of the score secured by the candidates seeking admission based on centralized examination, i.e., NEET.10.4 Even while giving admissions in the State quota/institutional reservation quota, still the admissions are required to be given on the basis of the merits determined on the basis of the NEET examination results. Under the circumstances, introduction of the NEET Scheme, as such, has nothing to do with the ?Institutional Preference?. Therefore, the change by introduction of the NEET Scheme shall not affect the Institutional Preference/Reservation as approved by this Court from time to time in catena of decisions, more particularly the decisions referred to hereinabove. Under the guise of introduction of the NEET Scheme, the petitioners cannot be permitted to re-agitate and/or re-open the issue with respect to Institutional Preference which has been approved and settled by this Court in catena of decisions, more particularly the decisions referred to hereinabove.11. Now so far as the submission on behalf of the petitioners that if the 50% seats are reserved for State quota and if institutional preference/reservation is permitted to the extent of 50% of the total number of open seats, in that case, not a single seat in the State quota shall be available and therefore the percentage of Institutional Preference may be reduced to the extent of 25% or so is concerned, at the outset, it is required to be noted that as such the Institutional Preference to the extent of 50% of the total number of open seats has been approved by this Court in catena of decisions, more particularly the decisions referred to hereinabove. The decision of this Court in the case of Dinesh Kumar (Dr. )(II) (supra) permitting 25% Institutional Preference has been distinguished by a Constitution Bench of this Court in the case of Saurabh Chaudri(supra). Therefore, once the Institutional Preference to the extent of 50% of the total number of open seats has held to be permissible, in that case, thereafter it will be for the appropriate authority/State to consider how much percentage seats are to be reserved for Institutional Preference/Reservation. It will be in the realm of a policy decision and this Court cannot substitute the same, unless it is held to be arbitrary and/or mala fide and/or not permissible. As observed hereinabove, a five Judge Bench of this Court in the case of Saurabh Chaudri (supra) has categorically allowed/permitted/approved the Institutional Preference/Reservation in the post graduate medical courses to the extent of 50% of the total number of open seats.12. Therefore, for the reasons stated above and considering the decisions of this Court in the cases of Dr. Pradeep Jain (supra); a Constitution Bench decision of this Court in the case of Saurabh Chaudri (supra); and Saurabh Dwivedi (supra), Institutional Preference to the extent of 50% is approved and it is observed and held that introduction of the NEET Scheme shall not affect such Institutional Preference/Reservation. Such a regulation providing 50% Institutional Preference/Reservation shall not be in any way ultra vires to Section 10D of the MCI Act. Even otherwise, as observed hereinabove, even in the case of Institutional Preference/Reservation, the admissions in the post graduate courses are to be given on the basis of the merits and marks obtained in the NEET examination result only.
### Response:
0
### Explanation:
Thus, right from 1971 onwards till 2017, consistently this Court has approved and/or permitted the ?Institutional Preference? in the Post Graduate Medical Courses.However, it is the case on behalf of the petitioners that in view of the introduction of the NEET Scheme and in view of Section 10D of the MCI Act, by which admissions are to be given on the basis of the merit in the NEET, such an ?Institutional Preference? would not be permissible. It is required to be noted that introduction of the NEET has, as such, nothing to do with any preference/Institutional Preference, more particularly the ?Institutional Preference? as approved by this Court time and again. The purpose and object of the introduction of the NEET was to conduct a uniform entrance examination for all medical educational institutions at the under-graduate level or post- graduate level and admissions at the under-graduate level and post-graduate level are to be given solely on the basis of the merits and/or marks obtained in the NEET examination only. It is required to be noted that earlier the respective universities including the Gujarat University used to hold examination for post-graduate admission to medical courses and now instead of such tests by the Gujarat University/concerned universities, merit is to be determined on the basis of the NEET examination results only and admissions are required to be given on the basis of such merits or marks obtained in NEET. The only obligation by virtue of introduction of NEET is that, once centralized admission test is conducted, the State, its agencies, universities and institutions cannot hold any separate test for the purpose of admission to Post-Graduate and PG and Diploma Courses and such seats are to be filled up by the State agencies, universities/institutions for preparing merit list as per the score obtained by the applicants in NEET examination and therefore by introduction of the NEET, Section 10D of the MCI, Act has been amended, consequently amendment to the Post-Graduate Education Regulations, 2000, admission to Post Graduate Courses are made providing for solely on the basis of the score secured by the candidates seeking admission based on centralized examination, i.e., NEET.10.4 Even while giving admissions in the State quota/institutional reservation quota, still the admissions are required to be given on the basis of the merits determined on the basis of the NEET examination results. Under the circumstances, introduction of the NEET Scheme, as such, has nothing to do with the ?Institutional Preference?. Therefore, the change by introduction of the NEET Scheme shall not affect the Institutional Preference/Reservation as approved by this Court from time to time in catena of decisions, more particularly the decisions referred to hereinabove. Under the guise of introduction of the NEET Scheme, the petitioners cannot be permitted to re-agitate and/or re-open the issue with respect to Institutional Preference which has been approved and settled by this Court in catena of decisions, more particularly the decisions referred to hereinabove.11. Now so far as the submission on behalf of the petitioners that if the 50% seats are reserved for State quota and if institutional preference/reservation is permitted to the extent of 50% of the total number of open seats, in that case, not a single seat in the State quota shall be available and therefore the percentage of Institutional Preference may be reduced to the extent of 25% or so is concerned, at the outset, it is required to be noted that as such the Institutional Preference to the extent of 50% of the total number of open seats has been approved by this Court in catena of decisions, more particularly the decisions referred to hereinabove. The decision of this Court in the case of Dinesh Kumar (Dr. )(II) (supra) permitting 25% Institutional Preference has been distinguished by a Constitution Bench of this Court in the case of Saurabh Chaudri(supra). Therefore, once the Institutional Preference to the extent of 50% of the total number of open seats has held to be permissible, in that case, thereafter it will be for the appropriate authority/State to consider how much percentage seats are to be reserved for Institutional Preference/Reservation. It will be in the realm of a policy decision and this Court cannot substitute the same, unless it is held to be arbitrary and/or mala fide and/or not permissible. As observed hereinabove, a five Judge Bench of this Court in the case of Saurabh Chaudri (supra) has categorically allowed/permitted/approved the Institutional Preference/Reservation in the post graduate medical courses to the extent of 50% of the total number of open seats.12. Therefore, for the reasons stated above and considering the decisions of this Court in the cases of Dr. Pradeep Jain (supra); a Constitution Bench decision of this Court in the case of Saurabh Chaudri (supra); and Saurabh Dwivedi (supra), Institutional Preference to the extent of 50% is approved and it is observed and held that introduction of the NEET Scheme shall not affect such Institutional Preference/Reservation. Such a regulation providing 50% Institutional Preference/Reservation shall not be in any way ultra vires to Section 10D of the MCI Act. Even otherwise, as observed hereinabove, even in the case of Institutional Preference/Reservation, the admissions in the post graduate courses are to be given on the basis of the merits and marks obtained in the NEET examination result only.
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Mahabir Beopar Mandal Limited Vs. Forward Market Commission | RAY, C.J.1. Civil Appeals Nos. 873 and 1425 are by certificate under Article 133(1) of the Constitution of India and Civil Appeal No. 1748 is by special leave.2. These appeals turn on the question whether the Commission described as the Forward Market Commission under the Forward Contract (Regulation) Act, 1952, can impose conditions under section 14-A and Section 14-B on the commodities in respect of which business can be carried on by persons who apply for registration.3. This Court in Union of India &Anr. v. M/s. Rajdhani Grains and Jaggery Exchange Ltd . &Ors. (1975 Supp. S.C.R.1) dealt with this specific question and came to the conclusion that the specification of the commodities in respect of which the business can be carried on is a condition concerned wit h the regulation and control of the business relating to forward contracts. It is idle to suggest that the Commission in granting certificate of registration to carry on business will not be competent to specify the commodities in which the persons asking for registration will deal.4. Another contention was raised before us that the provisions contained in Section 4 of the Forward Contract (Regulation) Act-1952 do not confer power on the Commission to impose conditions. This contention is also repelled by the decision of this Court to which reference has already been made. It has been held in that case that the Commission a lone is vested with power to impose conditions in regard to commodities in respect of which forward contracts can be entered into by a particular association. Sections 15 to 18 of the Act do not clash with the power of the Commission to impose conditions in respect of commodities in which business of forward contract can be carried on.Another contention was advanced before us that with regard to the recognised associations the Com mission had no power to impose conditions with regard to commodities in which they deal. This contention is also answered by the decision of this Court (supra). Further the provisions contained in Chapter III- A specifically deal with registration of all associations concerned with regulation and control of forward contracts and the power of the Commission to grant or refuse such certificate of registration.5. All contentions advanced by the appellants are already answered by the decision of this Court (supra) and the observations made herein. | 0[ds]All contentions advanced by the appellants are already answered by the decision of this Court (supra) and the observations madecontention is also repelled by the decision of this Court to which reference has already been made. It has been held in that case that the Commission a lone is vested with power to impose conditions in regard to commodities in respect of which forward contracts can be entered into by a particular association. Sections 15 to 18 of the Act do not clash with the power of the Commission to impose conditions in respect of commodities in which business of forward contract can be carriedcontention is also answered by the decision of this Court (supra). Further the provisions contained in Chapter IIIA specifically deal with registration of all associations concerned with regulation and control of forward contracts and the power of the Commission to grant or refuse such certificate of registration.5.All contentions advanced by the appellants are already answered by the decision of this Court (supra) and the observations made | 0 | 426 | 183 | ### 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:
RAY, C.J.1. Civil Appeals Nos. 873 and 1425 are by certificate under Article 133(1) of the Constitution of India and Civil Appeal No. 1748 is by special leave.2. These appeals turn on the question whether the Commission described as the Forward Market Commission under the Forward Contract (Regulation) Act, 1952, can impose conditions under section 14-A and Section 14-B on the commodities in respect of which business can be carried on by persons who apply for registration.3. This Court in Union of India &Anr. v. M/s. Rajdhani Grains and Jaggery Exchange Ltd . &Ors. (1975 Supp. S.C.R.1) dealt with this specific question and came to the conclusion that the specification of the commodities in respect of which the business can be carried on is a condition concerned wit h the regulation and control of the business relating to forward contracts. It is idle to suggest that the Commission in granting certificate of registration to carry on business will not be competent to specify the commodities in which the persons asking for registration will deal.4. Another contention was raised before us that the provisions contained in Section 4 of the Forward Contract (Regulation) Act-1952 do not confer power on the Commission to impose conditions. This contention is also repelled by the decision of this Court to which reference has already been made. It has been held in that case that the Commission a lone is vested with power to impose conditions in regard to commodities in respect of which forward contracts can be entered into by a particular association. Sections 15 to 18 of the Act do not clash with the power of the Commission to impose conditions in respect of commodities in which business of forward contract can be carried on.Another contention was advanced before us that with regard to the recognised associations the Com mission had no power to impose conditions with regard to commodities in which they deal. This contention is also answered by the decision of this Court (supra). Further the provisions contained in Chapter III- A specifically deal with registration of all associations concerned with regulation and control of forward contracts and the power of the Commission to grant or refuse such certificate of registration.5. All contentions advanced by the appellants are already answered by the decision of this Court (supra) and the observations made herein.
### Response:
0
### Explanation:
All contentions advanced by the appellants are already answered by the decision of this Court (supra) and the observations madecontention is also repelled by the decision of this Court to which reference has already been made. It has been held in that case that the Commission a lone is vested with power to impose conditions in regard to commodities in respect of which forward contracts can be entered into by a particular association. Sections 15 to 18 of the Act do not clash with the power of the Commission to impose conditions in respect of commodities in which business of forward contract can be carriedcontention is also answered by the decision of this Court (supra). Further the provisions contained in Chapter IIIA specifically deal with registration of all associations concerned with regulation and control of forward contracts and the power of the Commission to grant or refuse such certificate of registration.5.All contentions advanced by the appellants are already answered by the decision of this Court (supra) and the observations made
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Central Bank of India Vs. Asian Global Ltd. and Ors | of holding a particular office since law would assume so. It was submitted that while correctly holding that to fasten liability on a Director it has to be proved that such Director was responsible to the Company and was in charge of its affairs and that such fact would have to be pleaded and proved, the High Court had erred in holding that the pleadings in paragraphs 12 and 21 of the complaint fell short of sufficient averments required to be made in a complaint under Section 138 read with Section 141 of the 1881 Act.9. It was submitted that the decision of this Court in S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr. ((2005) 8 SCC 89 ), did not affect the Banks case, since it had been stated in the complaint in clear and unambiguous terms that the respondents as Directors of the Company were liable for its acts and that such an allegation could be proved by leading evidence, which stage was yet to arrive when the High Court quashed the complaint and discharged the accused. It was submitted that the impugned order of the High Court was liable to be set aside and the matter was liable to be remanded to the Trial Court for being proceeded with from the stage when the complaint was quashed.10. Apart from the above submissions, a further submission was made on behalf of the Bank to the effect that since the cheques which were issued in favour of the Bank had been handed over by the Respondent No.1 for collection and had been dishonoured, the Bank had become the holder of the cheques in due course and were, therefore, entitled to proceed against the Respondent No.1. 11. The submissions made on behalf of the Petitioner Bank were strongly opposed on behalf of the respondents and it was submitted that having regard to the decision of this Court in S.M.S. Pharmaceuticals Ltd.s case (supra) which was later followed in N.K. Wahi vs. Shekhar Singh & Ors. ((2007) 9 SCC 481 ), there was no scope to urge that the ingredients of a complaint against the respondents had been satisfied by the averments made in paragraphs 12 and 21 of the complaint.12. As far as the second limb of the submissions made on behalf of the Bank was concerned, it was submitted that the same was an argument of desperation as the cheques in question had been drawn by the Respondent No.3 on its own Bank which had dishonoured the cheques. Except for presenting the cheques to the Bank for collection, the Respondent No.1 had no other role to play in the dishonour thereof. 13. We have carefully considered the submissions made on behalf of the respective parties and we are unable to persuade ourselves to differ with the judgment and order of the High Court. The judgment in S.M.S. Pharmaceuticals Ltd.s case (supra), which was relied upon by the High Court, while interpreting the provisions of sub-section (1) of Section 141 of the 1881 Act, made it very clear that unless a specific averment was made in the complaint that at the time when the offence was committed, the person accused was in charge of and responsible for the conduct of the business of the Company, the requirements of Section 141 would not be satisfied. It was further held that while a Managing Director or a Joint Director of the Company would be admittedly in charge of the Company and responsible to the Company for the conduct of its business, the same yardstick would not apply to a Director. The position of a signatory to a cheque would be different in terms of Sub-section (2) of Section 141 of the 1881 Act. That, of course, is not the fact in this case.14. The law as laid down in S.M.S. Pharmaceuticals Ltd. s case (supra) has been consistently followed and as late as in 2007, this Court in the case of N.K. Wahis case (supra), while considering the question of vicarious liability of a Director of a Company, reiterated the sentiments expressed in S.M.S. Pharmaceuticals Ltd.s case (supra) that merely being a Director would not make a person liable for an offence that may have been committed by the Company. For launching a prosecution against the Directors of a Company under Section 138 read with Section 141 of the 1881 Act, there had to be a specific allegation in the complaint in regard to the part played by them in the transaction in question. It was also laid down that the allegations had to be clear and unambiguous showing that the Directors were in charge of and responsible for the business of the Company. This was done to discourage frivolous litigation and to prevent abuse of the process of Court and from embarking on a fishing expedition to try and unearth material against the Director concerned.15. In this case, save and except for the statement that the Respondents, Mr. Rajiv Jain and Sarla Jain and some of the other accused, were Directors of the accused Companies and were responsible and liable for the acts of the said Companies, no specific allegation has been made against any of them. The question of proving a fact which had not been mentioned in the complaint did not, therefore, arise in the facts of this case. This has prompted the High Court to observe that the Bank had relied on the mistaken presumption that as Directors, Rajiv Jain, Sarla Jain and the other Directors were vicariously liable for the acts of the Company. Admittedly, except for the aforesaid statement, no other material has been disclosed in the complaint to make out a case against the respondents that they had been in charge of the affairs of the Company and were responsible for its action. The High Court, therefore, rightly held that in the absence of any specific charge against the Respondents, the complaint was liable to be quashed and the respondents were liable to be discharged. | 0[ds]13. We have carefully considered the submissions made on behalf of the respective parties and we are unable to persuade ourselves to differ with the judgment and order of the High Court. The judgment in S.M.S. Pharmaceuticals Ltd.s case (supra), which was relied upon by the High Court, while interpreting the provisions of(1) of Section 141 of the 1881 Act, made it very clear that unless a specific averment was made in the complaint that at the time when the offence was committed, the person accused was in charge of and responsible for the conduct of the business of the Company, the requirements of Section 141 would not be satisfied. It was further held that while a Managing Director or a Joint Director of the Company would be admittedly in charge of the Company and responsible to the Company for the conduct of its business, the same yardstick would not apply to a Director. The position of a signatory to a cheque would be different in terms of(2) of Section 141 of the 1881 Act. That, of course, is not the fact in this case.14. The law as laid down in S.M.S. Pharmaceuticals Ltd. s case (supra) has been consistently followed and as late as in 2007, this Court in the case of N.K. Wahis case (supra), while considering the question of vicarious liability of a Director of a Company, reiterated the sentiments expressed in S.M.S. Pharmaceuticals Ltd.s case (supra) that merely being a Director would not make a person liable for an offence that may have been committed by the Company. For launching a prosecution against the Directors of a Company under Section 138 read with Section 141 of the 1881 Act, there had to be a specific allegation in the complaint in regard to the part played by them in the transaction in question. It was also laid down that the allegations had to be clear and unambiguous showing that the Directors were in charge of and responsible for the business of the Company. This was done to discourage frivolous litigation and to prevent abuse of the process of Court and from embarking on a fishing expedition to try and unearth material against the Director concerned.15. In this case, save and except for the statement that the Respondents, Mr. Rajiv Jain and Sarla Jain and some of the other accused, were Directors of the accused Companies and were responsible and liable for the acts of the said Companies, no specific allegation has been made against any of them. The question of proving a fact which had not been mentioned in the complaint did not, therefore, arise in the facts of this case. This has prompted the High Court to observe that the Bank had relied on the mistaken presumption that as Directors, Rajiv Jain, Sarla Jain and the other Directors were vicariously liable for the acts of the Company. Admittedly, except for the aforesaid statement, no other material has been disclosed in the complaint to make out a case against the respondents that they had been in charge of the affairs of the Company and were responsible for its action. The High Court, therefore, rightly held that in the absence of any specific charge against the Respondents, the complaint was liable to be quashed and the respondents were liable to be discharged. | 0 | 2,090 | 616 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
of holding a particular office since law would assume so. It was submitted that while correctly holding that to fasten liability on a Director it has to be proved that such Director was responsible to the Company and was in charge of its affairs and that such fact would have to be pleaded and proved, the High Court had erred in holding that the pleadings in paragraphs 12 and 21 of the complaint fell short of sufficient averments required to be made in a complaint under Section 138 read with Section 141 of the 1881 Act.9. It was submitted that the decision of this Court in S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr. ((2005) 8 SCC 89 ), did not affect the Banks case, since it had been stated in the complaint in clear and unambiguous terms that the respondents as Directors of the Company were liable for its acts and that such an allegation could be proved by leading evidence, which stage was yet to arrive when the High Court quashed the complaint and discharged the accused. It was submitted that the impugned order of the High Court was liable to be set aside and the matter was liable to be remanded to the Trial Court for being proceeded with from the stage when the complaint was quashed.10. Apart from the above submissions, a further submission was made on behalf of the Bank to the effect that since the cheques which were issued in favour of the Bank had been handed over by the Respondent No.1 for collection and had been dishonoured, the Bank had become the holder of the cheques in due course and were, therefore, entitled to proceed against the Respondent No.1. 11. The submissions made on behalf of the Petitioner Bank were strongly opposed on behalf of the respondents and it was submitted that having regard to the decision of this Court in S.M.S. Pharmaceuticals Ltd.s case (supra) which was later followed in N.K. Wahi vs. Shekhar Singh & Ors. ((2007) 9 SCC 481 ), there was no scope to urge that the ingredients of a complaint against the respondents had been satisfied by the averments made in paragraphs 12 and 21 of the complaint.12. As far as the second limb of the submissions made on behalf of the Bank was concerned, it was submitted that the same was an argument of desperation as the cheques in question had been drawn by the Respondent No.3 on its own Bank which had dishonoured the cheques. Except for presenting the cheques to the Bank for collection, the Respondent No.1 had no other role to play in the dishonour thereof. 13. We have carefully considered the submissions made on behalf of the respective parties and we are unable to persuade ourselves to differ with the judgment and order of the High Court. The judgment in S.M.S. Pharmaceuticals Ltd.s case (supra), which was relied upon by the High Court, while interpreting the provisions of sub-section (1) of Section 141 of the 1881 Act, made it very clear that unless a specific averment was made in the complaint that at the time when the offence was committed, the person accused was in charge of and responsible for the conduct of the business of the Company, the requirements of Section 141 would not be satisfied. It was further held that while a Managing Director or a Joint Director of the Company would be admittedly in charge of the Company and responsible to the Company for the conduct of its business, the same yardstick would not apply to a Director. The position of a signatory to a cheque would be different in terms of Sub-section (2) of Section 141 of the 1881 Act. That, of course, is not the fact in this case.14. The law as laid down in S.M.S. Pharmaceuticals Ltd. s case (supra) has been consistently followed and as late as in 2007, this Court in the case of N.K. Wahis case (supra), while considering the question of vicarious liability of a Director of a Company, reiterated the sentiments expressed in S.M.S. Pharmaceuticals Ltd.s case (supra) that merely being a Director would not make a person liable for an offence that may have been committed by the Company. For launching a prosecution against the Directors of a Company under Section 138 read with Section 141 of the 1881 Act, there had to be a specific allegation in the complaint in regard to the part played by them in the transaction in question. It was also laid down that the allegations had to be clear and unambiguous showing that the Directors were in charge of and responsible for the business of the Company. This was done to discourage frivolous litigation and to prevent abuse of the process of Court and from embarking on a fishing expedition to try and unearth material against the Director concerned.15. In this case, save and except for the statement that the Respondents, Mr. Rajiv Jain and Sarla Jain and some of the other accused, were Directors of the accused Companies and were responsible and liable for the acts of the said Companies, no specific allegation has been made against any of them. The question of proving a fact which had not been mentioned in the complaint did not, therefore, arise in the facts of this case. This has prompted the High Court to observe that the Bank had relied on the mistaken presumption that as Directors, Rajiv Jain, Sarla Jain and the other Directors were vicariously liable for the acts of the Company. Admittedly, except for the aforesaid statement, no other material has been disclosed in the complaint to make out a case against the respondents that they had been in charge of the affairs of the Company and were responsible for its action. The High Court, therefore, rightly held that in the absence of any specific charge against the Respondents, the complaint was liable to be quashed and the respondents were liable to be discharged.
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13. We have carefully considered the submissions made on behalf of the respective parties and we are unable to persuade ourselves to differ with the judgment and order of the High Court. The judgment in S.M.S. Pharmaceuticals Ltd.s case (supra), which was relied upon by the High Court, while interpreting the provisions of(1) of Section 141 of the 1881 Act, made it very clear that unless a specific averment was made in the complaint that at the time when the offence was committed, the person accused was in charge of and responsible for the conduct of the business of the Company, the requirements of Section 141 would not be satisfied. It was further held that while a Managing Director or a Joint Director of the Company would be admittedly in charge of the Company and responsible to the Company for the conduct of its business, the same yardstick would not apply to a Director. The position of a signatory to a cheque would be different in terms of(2) of Section 141 of the 1881 Act. That, of course, is not the fact in this case.14. The law as laid down in S.M.S. Pharmaceuticals Ltd. s case (supra) has been consistently followed and as late as in 2007, this Court in the case of N.K. Wahis case (supra), while considering the question of vicarious liability of a Director of a Company, reiterated the sentiments expressed in S.M.S. Pharmaceuticals Ltd.s case (supra) that merely being a Director would not make a person liable for an offence that may have been committed by the Company. For launching a prosecution against the Directors of a Company under Section 138 read with Section 141 of the 1881 Act, there had to be a specific allegation in the complaint in regard to the part played by them in the transaction in question. It was also laid down that the allegations had to be clear and unambiguous showing that the Directors were in charge of and responsible for the business of the Company. This was done to discourage frivolous litigation and to prevent abuse of the process of Court and from embarking on a fishing expedition to try and unearth material against the Director concerned.15. In this case, save and except for the statement that the Respondents, Mr. Rajiv Jain and Sarla Jain and some of the other accused, were Directors of the accused Companies and were responsible and liable for the acts of the said Companies, no specific allegation has been made against any of them. The question of proving a fact which had not been mentioned in the complaint did not, therefore, arise in the facts of this case. This has prompted the High Court to observe that the Bank had relied on the mistaken presumption that as Directors, Rajiv Jain, Sarla Jain and the other Directors were vicariously liable for the acts of the Company. Admittedly, except for the aforesaid statement, no other material has been disclosed in the complaint to make out a case against the respondents that they had been in charge of the affairs of the Company and were responsible for its action. The High Court, therefore, rightly held that in the absence of any specific charge against the Respondents, the complaint was liable to be quashed and the respondents were liable to be discharged.
|
K. S. Ramamurthi Reddiar Vs. The Chief Commissioner,Pondicherry & Anr | This clearly implies that the quasi-judicial authority was not under the control of the Government of India like an executive or administrative authority and therefore it was not possible for this Court to issue a direction to the Government of India to direct a quasi- judicial authority to give effect to the decision of this Court "by the exercise of their powers of control over the authority outside the territory of India". It follows from these observations in the majority decision in that case that the control envisaged by the words "under the control of the Government of India" in Art. 12 is not the control which arises out of mere appointment, payment and the right to take disciplinary action; the control envisaged under Art. 12 is a control of the functions of the authorities concerned, and the right of the Government of India by virtue of that control to give directions to the authority to function in a particular manner with respect to such functions. Now if the authorities were administrative or executive the control of the Government of India would not only be by virtue of appointment, payment and disciplinary action, but it would also extend to directing the authority to carry out its functions in a particular manner and a purely executive or administrative authority can always be directed by the Government of India under which it is functioning to act in a particular manner with respect to its functions. This, however, cannot be said of a quasi- judicial or judicial authority even though the Government of India may have appointed the authority and may be paying it and may have the right to take disciplinary action against it in certain eventualities. It was not open to the Government of India to control the functions of a quasi-judicial or judicial authority and direct it to decide a particular matter before it in a particular way. It seems to us therefore that the control envisaged under Art. 12 is control of the functions of the authorities and it is only when the Government of India can control the function of an authority that it can be said that the authority is under the control of the Government of India. Such control is possible in the case of a purely executive or administrative authority; it is impossible in the case of a quasi-judicial or judicial authority, for in the very nature of things, where rule of law prevails, it is not open to the Government, be it the Government of India or the Government of a State, to direct a quasi-judicial or judicial authority to decide a particular matter before it in a particular manner. Therefore, this being the nature of the control which the Government of India must exercise in order that an authority functioning outside the territory of India may be said to be an authority under the control of the Government of India within the meaning of Art. 12, a quasi-judicial or judicial authority cannot be said to be an authority under the control of the Government of India within this meaning.We are therefore of opinion that the Appellate authority being quasi-judicial could not be directed by the Government of India to decide a particular matter before it in a particular manner and therefore it cannot be said that it is an authority under the control of the Government of India. As we have already indicated, this follows from the reasoning of the majority in Masthan Sahibs Case (1), though it was not decided specifically as such in that case. We are therefore of opinion that judicial or quasi-.judicial authorities functioning in territories administered by the Government of India but outside the territory of India cannot be said to be authorities under the control of the Government of India within the meaning of Art. 12, and therefore Art. 12 would not apply to such authorities functioning outside the territory of India. Consequently it would not be open to this Court to issue a writ under Art. 32 read with Art. 12 against a quasi-.judicial authority outside the territory of India even though that authority might have been appointed by the Government of India, might be paid by the Government of India or the Government of India might have the power of disciplinary action against it. The Appellate Authority being a quasijudicial authority would thus not be under the control of the Government of India within the meaning of Art. 12. Therefore it would not have been open to this Court to issue a writ against the order under challenge when it was passed. In consequence it is not open to this Court now that Pondicherry has become part of India to issue a writ to the Appellate Authority with respect to an order passed by it before Pondicherry became part of India, as the Constitution for this purpose is not retrospective.10. The matter can be looked at in another way. Art. 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Therefore it is only when the State as defined in Art. 12 (for there is nothing in the context of Art. 15 to require otherwise) discriminates, that a citizen can complain of the breach of Art. 15 and ask for relief from this Court under Art. 32. We have however held that the Chief Commissioner being a quasi-judicial authority was not under the control of the Government of India within the meaning of Art. 12. Therefore, he could not be the State within that Article. If so, it follows that the discrimination (assuming there was any) was by an authority which was not the State. The protection of Art. 1.5 is against discrimination by "the State." The petitioner therefore would not be entitled to any protection under Art. 15 against the Chief Commissioner at the time the impugned order was made. That is another reason why the present petition must fail. | 0[ds]Therefore, the interpretation put forward on behalf of the respondents seems to us to be correct both gramatically and otherwise. "All local or other authorities" would thus be of two kinds, namely, (i) those within the territory of India, and (ii) those under the control of the Government of India. In the latter case there is no qualification that they should be within the territory of India. It is enough if they are under the control of the Government of India wherever they may be. We are therefore of opinion that no writ could issue to the appellate authority at the time when the order under challenge was passed, unless it could be called "other authority under the control of the Government of India Further, , there can be no doubt that if no writ could issue to the Appellate Authority at the time the order was passed, no writ could issue now after Pondicherry has become part of the territory of India, for that would be giving retrospective operation to the Constitution for this purpose which obviously cannot be done: (see Janardan Reddy v. the State([1950] S.C.R. 940. )).The next question is whether a judicial or quasijudicial authority outside the territory of India but within the territory under the administration of the Government of India can be said to be under the control of the Government of India. For this purpose we have to find out the meaning of the words "under the control of the Government of India" as used in Art. 12. It is submitted on behalf of the petitioner that if an authority is appointed by the Government of India, is paid by the Government of India and is liable to disciplinary action by the Government of India, it would be an authority "under the control of the Government of India". It is urged that as the Chief Commissioner, who is the appellate Authority, was appointed by the Government of India, was paid by the Government of India and was under the disciplinary control of the Government of India, he would be an authority under the control of the Government of India and this court would therefore have been entitled to issue a writ against him even when the order was passed and therefore all the more so, , when Pondicherry is now within the territory ofwe have already indicated, this follows from the reasoning of the majority in Masthan Sahibs Case (1), though it was not decided specifically as such in that case. We are therefore of opinion that judicial or quasi-.judicial authorities functioning in territories administered by the Government of India but outside the territory of India cannot be said to be authorities under the control of the Government of India within the meaning of Art. 12, and therefore Art. 12 would not apply to such authorities functioning outside the territory of India. Consequently it would not be open to this Court to issue a writ under Art. 32 read with Art. 12 against a quasi-.judicial authority outside the territory of India even though that authority might have been appointed by the Government of India, might be paid by the Government of India or the Government of India might have the power of disciplinary action against it. The Appellate Authority being a quasijudicial authority would thus not be under the control of the Government of India within the meaning of Art. 12. Therefore it would not have been open to this Court to issue a writ against the order under challenge when it was passed. In consequence it is not open to this Court now that Pondicherry has become part of India to issue a writ to the Appellate Authority with respect to an order passed by it before Pondicherry became part of India, as the Constitution for this purpose is notmatter can be looked at in another way. Art. 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Therefore it is only when the State as defined in Art. 12 (for there is nothing in the context of Art. 15 to require otherwise) discriminates, that a citizen can complain of the breach of Art. 15 and ask for relief from this Court under Art. 32. We have however held that the Chief Commissioner being a quasi-judicial authority was not under the control of the Government of India within the meaning of Art. 12. Therefore, he could not be the State within that Article. If so, it follows that the discrimination (assuming there was any) was by an authority which was not the State. The protection of Art. 1.5 is against discrimination by "the State." The petitioner therefore would not be entitled to any protection under Art. 15 against the Chief Commissioner at the time the impugned order was made. That is another reason why the present petition must fail. | 0 | 4,624 | 918 | ### 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:
This clearly implies that the quasi-judicial authority was not under the control of the Government of India like an executive or administrative authority and therefore it was not possible for this Court to issue a direction to the Government of India to direct a quasi- judicial authority to give effect to the decision of this Court "by the exercise of their powers of control over the authority outside the territory of India". It follows from these observations in the majority decision in that case that the control envisaged by the words "under the control of the Government of India" in Art. 12 is not the control which arises out of mere appointment, payment and the right to take disciplinary action; the control envisaged under Art. 12 is a control of the functions of the authorities concerned, and the right of the Government of India by virtue of that control to give directions to the authority to function in a particular manner with respect to such functions. Now if the authorities were administrative or executive the control of the Government of India would not only be by virtue of appointment, payment and disciplinary action, but it would also extend to directing the authority to carry out its functions in a particular manner and a purely executive or administrative authority can always be directed by the Government of India under which it is functioning to act in a particular manner with respect to its functions. This, however, cannot be said of a quasi- judicial or judicial authority even though the Government of India may have appointed the authority and may be paying it and may have the right to take disciplinary action against it in certain eventualities. It was not open to the Government of India to control the functions of a quasi-judicial or judicial authority and direct it to decide a particular matter before it in a particular way. It seems to us therefore that the control envisaged under Art. 12 is control of the functions of the authorities and it is only when the Government of India can control the function of an authority that it can be said that the authority is under the control of the Government of India. Such control is possible in the case of a purely executive or administrative authority; it is impossible in the case of a quasi-judicial or judicial authority, for in the very nature of things, where rule of law prevails, it is not open to the Government, be it the Government of India or the Government of a State, to direct a quasi-judicial or judicial authority to decide a particular matter before it in a particular manner. Therefore, this being the nature of the control which the Government of India must exercise in order that an authority functioning outside the territory of India may be said to be an authority under the control of the Government of India within the meaning of Art. 12, a quasi-judicial or judicial authority cannot be said to be an authority under the control of the Government of India within this meaning.We are therefore of opinion that the Appellate authority being quasi-judicial could not be directed by the Government of India to decide a particular matter before it in a particular manner and therefore it cannot be said that it is an authority under the control of the Government of India. As we have already indicated, this follows from the reasoning of the majority in Masthan Sahibs Case (1), though it was not decided specifically as such in that case. We are therefore of opinion that judicial or quasi-.judicial authorities functioning in territories administered by the Government of India but outside the territory of India cannot be said to be authorities under the control of the Government of India within the meaning of Art. 12, and therefore Art. 12 would not apply to such authorities functioning outside the territory of India. Consequently it would not be open to this Court to issue a writ under Art. 32 read with Art. 12 against a quasi-.judicial authority outside the territory of India even though that authority might have been appointed by the Government of India, might be paid by the Government of India or the Government of India might have the power of disciplinary action against it. The Appellate Authority being a quasijudicial authority would thus not be under the control of the Government of India within the meaning of Art. 12. Therefore it would not have been open to this Court to issue a writ against the order under challenge when it was passed. In consequence it is not open to this Court now that Pondicherry has become part of India to issue a writ to the Appellate Authority with respect to an order passed by it before Pondicherry became part of India, as the Constitution for this purpose is not retrospective.10. The matter can be looked at in another way. Art. 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Therefore it is only when the State as defined in Art. 12 (for there is nothing in the context of Art. 15 to require otherwise) discriminates, that a citizen can complain of the breach of Art. 15 and ask for relief from this Court under Art. 32. We have however held that the Chief Commissioner being a quasi-judicial authority was not under the control of the Government of India within the meaning of Art. 12. Therefore, he could not be the State within that Article. If so, it follows that the discrimination (assuming there was any) was by an authority which was not the State. The protection of Art. 1.5 is against discrimination by "the State." The petitioner therefore would not be entitled to any protection under Art. 15 against the Chief Commissioner at the time the impugned order was made. That is another reason why the present petition must fail.
### Response:
0
### Explanation:
Therefore, the interpretation put forward on behalf of the respondents seems to us to be correct both gramatically and otherwise. "All local or other authorities" would thus be of two kinds, namely, (i) those within the territory of India, and (ii) those under the control of the Government of India. In the latter case there is no qualification that they should be within the territory of India. It is enough if they are under the control of the Government of India wherever they may be. We are therefore of opinion that no writ could issue to the appellate authority at the time when the order under challenge was passed, unless it could be called "other authority under the control of the Government of India Further, , there can be no doubt that if no writ could issue to the Appellate Authority at the time the order was passed, no writ could issue now after Pondicherry has become part of the territory of India, for that would be giving retrospective operation to the Constitution for this purpose which obviously cannot be done: (see Janardan Reddy v. the State([1950] S.C.R. 940. )).The next question is whether a judicial or quasijudicial authority outside the territory of India but within the territory under the administration of the Government of India can be said to be under the control of the Government of India. For this purpose we have to find out the meaning of the words "under the control of the Government of India" as used in Art. 12. It is submitted on behalf of the petitioner that if an authority is appointed by the Government of India, is paid by the Government of India and is liable to disciplinary action by the Government of India, it would be an authority "under the control of the Government of India". It is urged that as the Chief Commissioner, who is the appellate Authority, was appointed by the Government of India, was paid by the Government of India and was under the disciplinary control of the Government of India, he would be an authority under the control of the Government of India and this court would therefore have been entitled to issue a writ against him even when the order was passed and therefore all the more so, , when Pondicherry is now within the territory ofwe have already indicated, this follows from the reasoning of the majority in Masthan Sahibs Case (1), though it was not decided specifically as such in that case. We are therefore of opinion that judicial or quasi-.judicial authorities functioning in territories administered by the Government of India but outside the territory of India cannot be said to be authorities under the control of the Government of India within the meaning of Art. 12, and therefore Art. 12 would not apply to such authorities functioning outside the territory of India. Consequently it would not be open to this Court to issue a writ under Art. 32 read with Art. 12 against a quasi-.judicial authority outside the territory of India even though that authority might have been appointed by the Government of India, might be paid by the Government of India or the Government of India might have the power of disciplinary action against it. The Appellate Authority being a quasijudicial authority would thus not be under the control of the Government of India within the meaning of Art. 12. Therefore it would not have been open to this Court to issue a writ against the order under challenge when it was passed. In consequence it is not open to this Court now that Pondicherry has become part of India to issue a writ to the Appellate Authority with respect to an order passed by it before Pondicherry became part of India, as the Constitution for this purpose is notmatter can be looked at in another way. Art. 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Therefore it is only when the State as defined in Art. 12 (for there is nothing in the context of Art. 15 to require otherwise) discriminates, that a citizen can complain of the breach of Art. 15 and ask for relief from this Court under Art. 32. We have however held that the Chief Commissioner being a quasi-judicial authority was not under the control of the Government of India within the meaning of Art. 12. Therefore, he could not be the State within that Article. If so, it follows that the discrimination (assuming there was any) was by an authority which was not the State. The protection of Art. 1.5 is against discrimination by "the State." The petitioner therefore would not be entitled to any protection under Art. 15 against the Chief Commissioner at the time the impugned order was made. That is another reason why the present petition must fail.
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Anglo-French Textile Co. Ltd Vs. Commissioner Of Income-Tax,Madras | Raichur even though the manufactured oil was sold in Bombay and the price was received there, and accordingly, that part of the profits derived from sales in Bombay which was attributable to the manufacture of the oil in Raichur was exempt from excess profits tax under the proviso to S. 5 of the Act, Reference in this case was made to the decision of the House of Lords in -In re Commrs. of Taxation v. Kirk, (1900) AC 588, wherein it was held that where income was in part derived from the extration of ore from the soil of New South Wales Colony, and from the conversion in the latter Colony of the crude ore into a merchantable product, this income was assessable under the New South Wales Land and Income-tax Assessment Act of 1895, S. 15, sub-ss. 3 and 4, notwithstanding that the finished products were sold exclusively outside the colony, Lord Davey while delivering the judgment of the privy Council observed as follows : "It appears to their Lordships that there are four processes in the earning or production of this income - (1) the extraction of the ore from the soil; (2) the conversion of the crude ore into a merchantable product, which is a manufacturing process; (3) the sale of the merchantable product; (4) the receipt of the moneys arising from the sale All these processes are necessary stages which terminate in money, and the income is the money resulting less the expenses attendant on all the stages. The first process seems to their Lordships clearly within sub-s., (3), and the second or manufacturing process, if non within the meaning of trade in sub-s. (1), is certainly included in the words any other source whatever in sub-s. (4). So far as relates to these two processes, therefore, their Lordships think that the income was earned and arising and accruing in New South Wales." On a parity of reasoning, it can well be said in this case that the profits accrue of arise to the appellant from three business processes or operations, those being (1) the purchase of cotton in British India; (2) its conversion by the process of manufacture in Pondicherry, into yarn or cloth; and (3) the sale of the merchantable product, and those have to be apportioned between these three operations. The same line at reasoning was adopted by the Madras High Court in -Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Commr. of Income-tax. Madras, 1950-18 ITR 423 (Mad). There it was held that the purchase of raw materials by the managing agents in British India would be an operation within the meaning of S. 42 (3) and it was reasonable to attribute a portion of the profits to such purchases in British India.(7) After a careful consideration of the decided cases on the subject and in view of the insertion of S. 42 (3) in the Act of 1922 by the amending Act of 1939, we have reached the conclusion that in the present state of the law there is hardly any scope for maintaining the view contended for by the learned counsel for the appellant and we therefore agree with the High Court in repelling it. While maintaining the view taken by the High Court in the case we wish to point out that it is not every business activity of a manufacturer that comes within the expression "operation" to which the provisions of S. 42 (3) are attracted. These provisions have no application unless according to the known and accepted business notions and usages the particular activity is regarded as a well defined business operation. Activities which are non well defined or are of a casual or isolated character would non ordinarily fall within the ambit of this rule. Distribution of profits on different business operations or activities ought only to be made for sufficient and cogent reasons and the observations made here are limited in the facts and circumstances of this case. In a case where all that may be known is that a few transactions of purchase of raw materials have taken place in British India, it could non ordinarily be said that the isolated acts were in their nature "operations" within the meaning of that expression. In this case the raw materials were purchased systematically and habitually through an established agency having special skill and competency in selecting the goods to be purchased and fixing the time and place of purchase. Such activity appears to us to be well within the import of the term "operation" as used in S. 42 (3) of the Act. It is non in the nature of an isolated transaction of purchase of raw materials. The first contention of the assessee is therefore negatived.(8) The learned counsel argued in a rathar half-hearted manner that there was no business connection of the assessee in British India. This contention does not require serious consideration. An isolated transaction between a non-resident and a resident in British India without any course of dealings such as might fairly be described as a business connection does not attract the application of S. 42, but when there is a continuity of business relationship between the person in British India who helps to make the profits and the person outside British India who receives or realizes the profit, such relationship does constitute a business connection. In this case there was a regular agency established in British India for the purchase of the entire raw materials required for the manufacture abroad and the agent was chosen by reason of his skill, reputation and experience in the line of trade. The terms of the agency stated in the earlier part of this judgment fully establish that Messrs. Best and Co. Ltd., were carrying on something almost akin to the business of a managing agency in India of the foreign company and the latter certainly had a connection with this agency. We therefore negative this contention of the learned counsel as well. | 0[ds](7) After a careful consideration of the decided cases on the subject and in view of the insertion of S. 42 (3) in the Act of 1922 by the amending Act of 1939, we have reached the conclusion that in the present state of the law there is hardly any scope for maintaining the view contended for by the learned counsel for the appellant and we therefore agree with the High Court in repelling it. While maintaining the view taken by the High Court in the case we wish to point out that it is not every business activity of a manufacturer that comes within the expression "operation" to which the provisions of S. 42 (3) are attracted. These provisions have no application unless according to the known and accepted business notions and usages the particular activity is regarded as a well defined business operation. Activities which are non well defined or are of a casual or isolated character would non ordinarily fall within the ambit of this rule. Distribution of profits on different business operations or activities ought only to be made for sufficient and cogent reasons and the observations made here are limited in the facts and circumstances of this case. In a case where all that may be known is that a few transactions of purchase of raw materials have taken place in British India, it could non ordinarily be said that the isolated acts were in their nature "operations" within the meaning of that expression. In this case the raw materials were purchased systematically and habitually through an established agency having special skill and competency in selecting the goods to be purchased and fixing the time and place of purchase. Such activity appears to us to be well within the import of the term "operation" as used in S. 42 (3) of the Act. It is non in the nature of an isolated transaction of purchase of raw materials. The first contention of the assessee is thereforecontention does not require serious consideration. An isolated transaction between aand a resident in British India without any course of dealings such as might fairly be described as a business connection does not attract the application of S. 42, but when there is a continuity of business relationship between the person in British India who helps to make the profits and the person outside British India who receives or realizes the profit, such relationship does constitute a business connection. In this case there was a regular agency established in British India for the purchase of the entire raw materials required for the manufacture abroad and the agent was chosen by reason of his skill, reputation and experience in the line of trade. The terms of the agency stated in the earlier part of this judgment fully establish that Messrs. Best and Co. Ltd., were carrying on something almost akin to the business of a managing agency in India of the foreign company and the latter certainly had a connection with this agency. We therefore negative this contention of the learned counsel as well. | 0 | 2,941 | 551 | ### 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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Raichur even though the manufactured oil was sold in Bombay and the price was received there, and accordingly, that part of the profits derived from sales in Bombay which was attributable to the manufacture of the oil in Raichur was exempt from excess profits tax under the proviso to S. 5 of the Act, Reference in this case was made to the decision of the House of Lords in -In re Commrs. of Taxation v. Kirk, (1900) AC 588, wherein it was held that where income was in part derived from the extration of ore from the soil of New South Wales Colony, and from the conversion in the latter Colony of the crude ore into a merchantable product, this income was assessable under the New South Wales Land and Income-tax Assessment Act of 1895, S. 15, sub-ss. 3 and 4, notwithstanding that the finished products were sold exclusively outside the colony, Lord Davey while delivering the judgment of the privy Council observed as follows : "It appears to their Lordships that there are four processes in the earning or production of this income - (1) the extraction of the ore from the soil; (2) the conversion of the crude ore into a merchantable product, which is a manufacturing process; (3) the sale of the merchantable product; (4) the receipt of the moneys arising from the sale All these processes are necessary stages which terminate in money, and the income is the money resulting less the expenses attendant on all the stages. The first process seems to their Lordships clearly within sub-s., (3), and the second or manufacturing process, if non within the meaning of trade in sub-s. (1), is certainly included in the words any other source whatever in sub-s. (4). So far as relates to these two processes, therefore, their Lordships think that the income was earned and arising and accruing in New South Wales." On a parity of reasoning, it can well be said in this case that the profits accrue of arise to the appellant from three business processes or operations, those being (1) the purchase of cotton in British India; (2) its conversion by the process of manufacture in Pondicherry, into yarn or cloth; and (3) the sale of the merchantable product, and those have to be apportioned between these three operations. The same line at reasoning was adopted by the Madras High Court in -Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Commr. of Income-tax. Madras, 1950-18 ITR 423 (Mad). There it was held that the purchase of raw materials by the managing agents in British India would be an operation within the meaning of S. 42 (3) and it was reasonable to attribute a portion of the profits to such purchases in British India.(7) After a careful consideration of the decided cases on the subject and in view of the insertion of S. 42 (3) in the Act of 1922 by the amending Act of 1939, we have reached the conclusion that in the present state of the law there is hardly any scope for maintaining the view contended for by the learned counsel for the appellant and we therefore agree with the High Court in repelling it. While maintaining the view taken by the High Court in the case we wish to point out that it is not every business activity of a manufacturer that comes within the expression "operation" to which the provisions of S. 42 (3) are attracted. These provisions have no application unless according to the known and accepted business notions and usages the particular activity is regarded as a well defined business operation. Activities which are non well defined or are of a casual or isolated character would non ordinarily fall within the ambit of this rule. Distribution of profits on different business operations or activities ought only to be made for sufficient and cogent reasons and the observations made here are limited in the facts and circumstances of this case. In a case where all that may be known is that a few transactions of purchase of raw materials have taken place in British India, it could non ordinarily be said that the isolated acts were in their nature "operations" within the meaning of that expression. In this case the raw materials were purchased systematically and habitually through an established agency having special skill and competency in selecting the goods to be purchased and fixing the time and place of purchase. Such activity appears to us to be well within the import of the term "operation" as used in S. 42 (3) of the Act. It is non in the nature of an isolated transaction of purchase of raw materials. The first contention of the assessee is therefore negatived.(8) The learned counsel argued in a rathar half-hearted manner that there was no business connection of the assessee in British India. This contention does not require serious consideration. An isolated transaction between a non-resident and a resident in British India without any course of dealings such as might fairly be described as a business connection does not attract the application of S. 42, but when there is a continuity of business relationship between the person in British India who helps to make the profits and the person outside British India who receives or realizes the profit, such relationship does constitute a business connection. In this case there was a regular agency established in British India for the purchase of the entire raw materials required for the manufacture abroad and the agent was chosen by reason of his skill, reputation and experience in the line of trade. The terms of the agency stated in the earlier part of this judgment fully establish that Messrs. Best and Co. Ltd., were carrying on something almost akin to the business of a managing agency in India of the foreign company and the latter certainly had a connection with this agency. We therefore negative this contention of the learned counsel as well.
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(7) After a careful consideration of the decided cases on the subject and in view of the insertion of S. 42 (3) in the Act of 1922 by the amending Act of 1939, we have reached the conclusion that in the present state of the law there is hardly any scope for maintaining the view contended for by the learned counsel for the appellant and we therefore agree with the High Court in repelling it. While maintaining the view taken by the High Court in the case we wish to point out that it is not every business activity of a manufacturer that comes within the expression "operation" to which the provisions of S. 42 (3) are attracted. These provisions have no application unless according to the known and accepted business notions and usages the particular activity is regarded as a well defined business operation. Activities which are non well defined or are of a casual or isolated character would non ordinarily fall within the ambit of this rule. Distribution of profits on different business operations or activities ought only to be made for sufficient and cogent reasons and the observations made here are limited in the facts and circumstances of this case. In a case where all that may be known is that a few transactions of purchase of raw materials have taken place in British India, it could non ordinarily be said that the isolated acts were in their nature "operations" within the meaning of that expression. In this case the raw materials were purchased systematically and habitually through an established agency having special skill and competency in selecting the goods to be purchased and fixing the time and place of purchase. Such activity appears to us to be well within the import of the term "operation" as used in S. 42 (3) of the Act. It is non in the nature of an isolated transaction of purchase of raw materials. The first contention of the assessee is thereforecontention does not require serious consideration. An isolated transaction between aand a resident in British India without any course of dealings such as might fairly be described as a business connection does not attract the application of S. 42, but when there is a continuity of business relationship between the person in British India who helps to make the profits and the person outside British India who receives or realizes the profit, such relationship does constitute a business connection. In this case there was a regular agency established in British India for the purchase of the entire raw materials required for the manufacture abroad and the agent was chosen by reason of his skill, reputation and experience in the line of trade. The terms of the agency stated in the earlier part of this judgment fully establish that Messrs. Best and Co. Ltd., were carrying on something almost akin to the business of a managing agency in India of the foreign company and the latter certainly had a connection with this agency. We therefore negative this contention of the learned counsel as well.
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China Cotton Exporters Vs. Beharilal Ramcharan Cottonmills Ltd | default on the part of the supplier or to a circumstance beyond his control.13. Turning now to the facts of the case we find that the defendant had made two contracts with its Italian suppliers - one contract for 200,000 lbs. of cotton for August, 1950, shipment which it is said was later extended to September, 1950; another contract of August 4, 1950, for 300,000 lbs. for November/December, 1950. The defendant had also a contract with the plaintiff company of July 22, 1950, for sale of 40,000 lbs. August shipment- later converted to November/December shipment. In October, 1950, 50,000 lbs. out of the first contract with the Italian supplies arrived; out of this 40,000 was delivered to the plaintiff company in satisfaction of the earlier contract and 10,000 was delivered in satisfaction of this second contract - the contract now in suit. Under the contract for 300,000 lbs. the buyer (the defendant) received 70,000 lbs. of goods. Of this nothing was given to the plaintiff company and so, 40,000 lbs. remained undelivered. The question is had the defendant a contract under which it could, provided the contract was not broken, obtain the goods in time to honour its agreement to sell October/November shipment of goods.14. The learned Attorney-General complains that the courts below totally left out of consideration the sellers (the appellants) earlier contract with Italian suppliers and says that that, at least, was an adequate contract. There would be force in this argument if at the time the breach took place, that is, the last date under which shipment could be made under the contract in suit, the defendant would have been entitled to obtain goods, under that earlier contract. But that is not the position. In any case the earlier contract was cancelled at the end of September ; so that at the time of the breach the seller was not entitled to receive any goods under that contract.15. We come next to the sellers November/December shipment contract with its Italian suppliers. The courts below have pointed out that under such a contract, the Italian suppliers were entitled to delay shipment till the last day of December. If that be the position the seller would not, on the last day by which the goods under its contract ought to have been supplied viz., December 15, 1950, after adding 15 days under Cl. 7, have any contract under which it would have been entitled to receive goods in sufficient time. The learned Attorney-General has, however, contended that under the contract which the defendant had with its Italian suppliers, the Italian suppliers would be bound to spread the supply over the period, November/December and thus bound to ship 40,000 lbs. at least well before the December, 15.16. The great difficulty in the way of this argument is that the defendants contract with its Italian suppliers has not been produced and we do not know the terms of that contract. In Bilasiram Thakursidas v. Ezekiel Abraham, ILR 43 Cal 305 : (AIR 1917 Cal 721) (FB) from which the learned counsel sought assistance the term of shipment in the contract was "shipments to be made by steamers during July-December, 1914 - shipment in any month by one or more steamers." This was clearly an instalment contract and on the construction of that contract the court held that the buyer had the right to demand delivery of goods by separate shipments spread over the months from July to December. In Phoenix Mills Ltd. v. Madhavdas Rupchand and Co., 24 Bom LR 142 the question arose whether the plaintiff-sellers had committed a breach by not giving delivery where the terms of delivery were :- "200 bales No. 20s and 20 1/2s Ring October-November, 1913, and 50 bales No. 6 1/2 s Mule yarn as manufactured." It was further mentioned in the contract that the buyers agreed to take delivery of the bales from time to time as they are ready. It was in view of these terms that Mr. Justice Macleod held that "the court can only consider the parties to have intended, when they signed that contract, that delivery should be asked for and given during October-November of two hundred bales, delivery being asked for the reasonable quantities at a time during the period of delivery."17. These decisions are in line with the English law in this matter as stated by Benjamin on Sale, 8th Edition, at p. 724 thus :-"Where the amount of instalments is not specified, the prima facie rule would seem to be that the deliveries should be rateably distributed over the contract period."18. The learned author goes on to say that "if it can be gathered from the terms of the contract or the circumstances that rateable deliveries were not intended, it then becomes a question for the jury whether the tender of or demand for, delivery is a reasonable one."19. Quite clearly however the question whether delivery should be spread over the period arises only in case of instalment contracts. There is nothing however before us to show that the defendants contract with its Italian suppliers was an instalment contract. Even though the proprietor of the defendants Italian supplier was examined he said nothing which would even tend to show that the contract between him and the defendant was an instalment contract. In the absence of the contract or any other circumstances justifying a conclusion that it was instalment contract it is not possible to accept the contention of the learned Attorney-General that the defendants Italian suppliers would be bound to spread the supply over the period October/November, 1950.20. There is thus no escape from the conclusion that the defendant has failed to establish its case that it had an adequate contract with its Italian suppliers, which if not broken, would put it in possession of 40,000 lbs. of cotton fibre before December 15, 1950.The defendant firm cannot therefore escape the liability for the damages for breach of the contract, by the failure to supply those goods. | 0[ds]6. We find thus that whatever may have been said earlier in the printed portion of the contract the parties took care, after specifying "October/November, 1950" as the date of shipment to make a definite condition in the remark column, on the important question whether the shipment date was being guaranteed or not and if so, to whatas we must, that in commercial contracts, time is ordinarily of the essence of the contract and giving the word "therefore" its natural, grammatical meaning, we must hold that what the parties intended was that to the extent that delay in shipment stands in the way of keeping to the shipment date October/November, 1950, this shipment date was not guaranteed; but with this exception shipment October/November, 1950, wasdo not consider this explanation of the use of "therefore" acceptable. If the parties intended that quite apart from delay in obtaining import licence, shipment date was not guaranteed, the natural way of expressing such intention - an intention contrary to the usual intention in commercial contracts of treating time as the essence of the contract - would be to say : "This contract is subject to import licence and the shipment date is not guaranteed.As we have already mentioned, the remarks column was filled in manuscript and consequently even if the terms in print by themselves might have justified a conclusion that the parties intended that the shipment date was not guaranteed, the intention expressed in the manuscript should prevail. We are not satisfied however that the terms in print would justify any such conclusion.The provisions of Cls. 7 and 9 do not affect the question.10. We are, therefore, of opinion that the courts below were right in thinking that the shipment time was guaranteed, and time was of the essence of theis not disputed that if there was any such adequate contract the defendant will not be liable for damages. It is equally clear that if there was no such contract, the defendant cannot escapethink that this proposition is not sound. Before the seller could be heard to say that the non-supply was due to default on the part of his suppliers or some other cause beyond his control the seller is bound to show that he himself did all in his power to ensure timely supply. He could do so by showing that he had made a contract under which he was entitled to obtain the supplies in good time. If under his contract with his own suppliers he was not so entitled but there was merely a chance of his getting the supplies in time to enable him to honour his contract the non-supply would clearly be due to his own default in not making a contract which would have so entitled him and not to a default on the part of the supplier or to a circumstance beyond hiswould be force in this argument if at the time the breach took place, that is, the last date under which shipment could be made under the contract in suit, the defendant would have been entitled to obtain goods, under that earlier contract. But that is not the position. In any case the earlier contract was cancelled at the end of September ; so that at the time of the breach the seller was not entitled to receive any goods under that contract.The great difficulty in the way of this argument is that the defendants contract with its Italian suppliers has not been produced and we do not know the terms of that contract.Quite clearly however the question whether delivery should be spread over the period arises only in case of instalment contracts. There is nothing however before us to show that the defendants contract with its Italian suppliers was an instalment contract. Even though the proprietor of the defendants Italian supplier was examined he said nothing which would even tend to show that the contract between him and the defendant was an instalment contract. In the absence of the contract or any other circumstances justifying a conclusion that it was instalment contract it is not possible to accept the contention of the learned Attorney-General that the defendants Italian suppliers would be bound to spread the supply over the period October/November, 1950.20. There is thus no escape from the conclusion that the defendant has failed to establish its case that it had an adequate contract with its Italian suppliers, which if not broken, would put it in possession of 40,000 lbs. of cotton fibre before December 15, 1950.The defendant firm cannot therefore escape the liability for the damages for breach of the contract, by the failure to supply those goods. | 0 | 3,111 | 837 | ### Instruction:
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default on the part of the supplier or to a circumstance beyond his control.13. Turning now to the facts of the case we find that the defendant had made two contracts with its Italian suppliers - one contract for 200,000 lbs. of cotton for August, 1950, shipment which it is said was later extended to September, 1950; another contract of August 4, 1950, for 300,000 lbs. for November/December, 1950. The defendant had also a contract with the plaintiff company of July 22, 1950, for sale of 40,000 lbs. August shipment- later converted to November/December shipment. In October, 1950, 50,000 lbs. out of the first contract with the Italian supplies arrived; out of this 40,000 was delivered to the plaintiff company in satisfaction of the earlier contract and 10,000 was delivered in satisfaction of this second contract - the contract now in suit. Under the contract for 300,000 lbs. the buyer (the defendant) received 70,000 lbs. of goods. Of this nothing was given to the plaintiff company and so, 40,000 lbs. remained undelivered. The question is had the defendant a contract under which it could, provided the contract was not broken, obtain the goods in time to honour its agreement to sell October/November shipment of goods.14. The learned Attorney-General complains that the courts below totally left out of consideration the sellers (the appellants) earlier contract with Italian suppliers and says that that, at least, was an adequate contract. There would be force in this argument if at the time the breach took place, that is, the last date under which shipment could be made under the contract in suit, the defendant would have been entitled to obtain goods, under that earlier contract. But that is not the position. In any case the earlier contract was cancelled at the end of September ; so that at the time of the breach the seller was not entitled to receive any goods under that contract.15. We come next to the sellers November/December shipment contract with its Italian suppliers. The courts below have pointed out that under such a contract, the Italian suppliers were entitled to delay shipment till the last day of December. If that be the position the seller would not, on the last day by which the goods under its contract ought to have been supplied viz., December 15, 1950, after adding 15 days under Cl. 7, have any contract under which it would have been entitled to receive goods in sufficient time. The learned Attorney-General has, however, contended that under the contract which the defendant had with its Italian suppliers, the Italian suppliers would be bound to spread the supply over the period, November/December and thus bound to ship 40,000 lbs. at least well before the December, 15.16. The great difficulty in the way of this argument is that the defendants contract with its Italian suppliers has not been produced and we do not know the terms of that contract. In Bilasiram Thakursidas v. Ezekiel Abraham, ILR 43 Cal 305 : (AIR 1917 Cal 721) (FB) from which the learned counsel sought assistance the term of shipment in the contract was "shipments to be made by steamers during July-December, 1914 - shipment in any month by one or more steamers." This was clearly an instalment contract and on the construction of that contract the court held that the buyer had the right to demand delivery of goods by separate shipments spread over the months from July to December. In Phoenix Mills Ltd. v. Madhavdas Rupchand and Co., 24 Bom LR 142 the question arose whether the plaintiff-sellers had committed a breach by not giving delivery where the terms of delivery were :- "200 bales No. 20s and 20 1/2s Ring October-November, 1913, and 50 bales No. 6 1/2 s Mule yarn as manufactured." It was further mentioned in the contract that the buyers agreed to take delivery of the bales from time to time as they are ready. It was in view of these terms that Mr. Justice Macleod held that "the court can only consider the parties to have intended, when they signed that contract, that delivery should be asked for and given during October-November of two hundred bales, delivery being asked for the reasonable quantities at a time during the period of delivery."17. These decisions are in line with the English law in this matter as stated by Benjamin on Sale, 8th Edition, at p. 724 thus :-"Where the amount of instalments is not specified, the prima facie rule would seem to be that the deliveries should be rateably distributed over the contract period."18. The learned author goes on to say that "if it can be gathered from the terms of the contract or the circumstances that rateable deliveries were not intended, it then becomes a question for the jury whether the tender of or demand for, delivery is a reasonable one."19. Quite clearly however the question whether delivery should be spread over the period arises only in case of instalment contracts. There is nothing however before us to show that the defendants contract with its Italian suppliers was an instalment contract. Even though the proprietor of the defendants Italian supplier was examined he said nothing which would even tend to show that the contract between him and the defendant was an instalment contract. In the absence of the contract or any other circumstances justifying a conclusion that it was instalment contract it is not possible to accept the contention of the learned Attorney-General that the defendants Italian suppliers would be bound to spread the supply over the period October/November, 1950.20. There is thus no escape from the conclusion that the defendant has failed to establish its case that it had an adequate contract with its Italian suppliers, which if not broken, would put it in possession of 40,000 lbs. of cotton fibre before December 15, 1950.The defendant firm cannot therefore escape the liability for the damages for breach of the contract, by the failure to supply those goods.
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6. We find thus that whatever may have been said earlier in the printed portion of the contract the parties took care, after specifying "October/November, 1950" as the date of shipment to make a definite condition in the remark column, on the important question whether the shipment date was being guaranteed or not and if so, to whatas we must, that in commercial contracts, time is ordinarily of the essence of the contract and giving the word "therefore" its natural, grammatical meaning, we must hold that what the parties intended was that to the extent that delay in shipment stands in the way of keeping to the shipment date October/November, 1950, this shipment date was not guaranteed; but with this exception shipment October/November, 1950, wasdo not consider this explanation of the use of "therefore" acceptable. If the parties intended that quite apart from delay in obtaining import licence, shipment date was not guaranteed, the natural way of expressing such intention - an intention contrary to the usual intention in commercial contracts of treating time as the essence of the contract - would be to say : "This contract is subject to import licence and the shipment date is not guaranteed.As we have already mentioned, the remarks column was filled in manuscript and consequently even if the terms in print by themselves might have justified a conclusion that the parties intended that the shipment date was not guaranteed, the intention expressed in the manuscript should prevail. We are not satisfied however that the terms in print would justify any such conclusion.The provisions of Cls. 7 and 9 do not affect the question.10. We are, therefore, of opinion that the courts below were right in thinking that the shipment time was guaranteed, and time was of the essence of theis not disputed that if there was any such adequate contract the defendant will not be liable for damages. It is equally clear that if there was no such contract, the defendant cannot escapethink that this proposition is not sound. Before the seller could be heard to say that the non-supply was due to default on the part of his suppliers or some other cause beyond his control the seller is bound to show that he himself did all in his power to ensure timely supply. He could do so by showing that he had made a contract under which he was entitled to obtain the supplies in good time. If under his contract with his own suppliers he was not so entitled but there was merely a chance of his getting the supplies in time to enable him to honour his contract the non-supply would clearly be due to his own default in not making a contract which would have so entitled him and not to a default on the part of the supplier or to a circumstance beyond hiswould be force in this argument if at the time the breach took place, that is, the last date under which shipment could be made under the contract in suit, the defendant would have been entitled to obtain goods, under that earlier contract. But that is not the position. In any case the earlier contract was cancelled at the end of September ; so that at the time of the breach the seller was not entitled to receive any goods under that contract.The great difficulty in the way of this argument is that the defendants contract with its Italian suppliers has not been produced and we do not know the terms of that contract.Quite clearly however the question whether delivery should be spread over the period arises only in case of instalment contracts. There is nothing however before us to show that the defendants contract with its Italian suppliers was an instalment contract. Even though the proprietor of the defendants Italian supplier was examined he said nothing which would even tend to show that the contract between him and the defendant was an instalment contract. In the absence of the contract or any other circumstances justifying a conclusion that it was instalment contract it is not possible to accept the contention of the learned Attorney-General that the defendants Italian suppliers would be bound to spread the supply over the period October/November, 1950.20. There is thus no escape from the conclusion that the defendant has failed to establish its case that it had an adequate contract with its Italian suppliers, which if not broken, would put it in possession of 40,000 lbs. of cotton fibre before December 15, 1950.The defendant firm cannot therefore escape the liability for the damages for breach of the contract, by the failure to supply those goods.
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RAMESHWAR DASS Vs. THE STATE OF PUNJAB STATE OF PUNJAB | hearing before the High Court, none appeared for the appellant. The High Court on hearing the State counsel partly allowed the appeal in favour of the landowner (appellant herein) in the light of the decision rendered in RFA No. 953 of 1994, Hari Singh and others vs. State of Punjab & Anr. decided on 01.07.2013 and enhanced the rate of compensation as was determined by the High Court in the case of Hari Singh (supra). The impugned order reads as under:“No one has appeared for the appellant.Learned counsel for the State very fairly submitted that the claim made in the present appeal is squarely covered by judgment of this Court in RFA No.953 of 1994 Hari Singh & Ors. vs. The State of Punjab & Anr. decided on 1.7.2013.For the reasons recorded in Hari Singh’s case (supra), the present appeal is disposed of in the same terms.”11. It is against this order, the appellant (landowner) has felt aggrieved and filed this appeal by way of special leave in this Court.12. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in partly allowing the appeal in the light of its earlier order dated 01.07.2013 passed in Hari Singh and others vs. State of Punjab & Anr. and other connected appeals (supra) or in other words, whether the appellant (landowner) is entitled to claim enhancement in the rate of compensation awarded by the High Court.13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.14. On perusal of the impugned order quoted above, it is clear that the main order was passed by the High Court in the lead appeal filed by another landowner -Hari Singh by which the High Court partly allowed the other several appeals filed by the landowners and has enhanced the compensation payable to the landowners in relation to their land situated in 9 different villages and, in consequence, has dismissed the appeals filed by the State against the award of the Reference Court.15. In other words, Hari Singh’s case (supra) also arose out of the same land acquisition proceedings out of which the present bunch of appeal arises. The appeal filed by Hari Singh was treated as the lead appeal by the High Court for determining the market rate of the land situated in 9 villages. By a common judgment dated 01.07.2013, the High Court partly allowed the landowners’ appeals, enhanced the rate of compensation and in consequence dismissed the States appeals.16. In Hari Singh’s case (supra), the High Court threadbare examined the issue of determination of market rate of the acquired land situated in each village (total 9) keeping in view the quality, location, and the distance of acquired land situated in 9 villages from Chandigarh. The High Court took note of the assessments made in relation to the lands situated at village Mehmudpur, Tehsil Sottal under the land acquisition notification dated 18.09.1985 and while providing for enhancement @ 10% for each year, enhanced the compensation for the acquisition in question that was made in the year 1988, for the lands situated at villages Matur, Matran, Siampur and Jandpur to Rs.2,50,000/-for Chahi with proportionate decrease for Barani and Gair Mumkin land. As regards the land situated at village Bhago Majra, the High Court made deduction to the extent of 20% keeping in view the nature of the land, its quality, location and distance from the city of Chandigarh and accordingly enhanced the rate of compensation as under:chart17. Learned counsel for the appellant (landowner), on the basis of the map of the site in question, argued that the land situated in village Bhago Majra with which we are concerned in these appeals has more potential as compared to the lands situated in other villages or in any event, according to learned counsel, it should have been made at par with the other lands where high rate has been determined. It was urged that the land situated in Bhago Majra is also near to Mohali and Chandigarh distance-wise and, therefore, the appellant is entitled to claim more compensation than what has been determined by the High Court in Hari Singh’s case (supra) or at least the appellant is entitled to claim the same compensation as has been granted to the landowners of the land which are situated in other villages.18. We find no merit in this submission. In our view, the High Court has taken into account all the aspects, such as location of each village, distance from the city of Chandigarh and its quality as was done by the LAO and then has worked out the rates of the lands situated in each village after giving appropriate deduction/escalation, as the case may be, which has varied from 10%, 20% and 25% depending upon the aforementioned factors.19. In our view, the aforementioned approach of the High Court which we have also examined on perusal of the site map cannot be faulted with. It is just and proper calling for no interference.20. The appellant failed to show that the Courts below did not consider any material piece of evidence which had bearing over the issue in question. Likewise, the appellant was also not able to show that the High Court committed any fundamental error in determining the market value of the land situated in 9 villages.21. On the other hand, we also find that the High Court has fixed appropriate rates for the lands situated in each of the 9 villages including Bhago Majra village after taking into account their location and the potentiality from all angles.22. Like the appellant, all other landowners whose land is situated in village Bhago Majra have also got the compensation at the uniform rate depending upon the quality of three classes of land. It is clear from the following chart indicating the respective rates awarded by the Land Acquisition Officer, Reference Court and the High Court qua the appellant’s land:chart | 0[ds]13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.14. On perusal of the impugned order quoted above, it is clear that the main order was passed by the High Court in the lead appeal filed by another landowner -Hari Singh by which the High Court partly allowed the other several appeals filed by the landowners and has enhanced the compensation payable to the landowners in relation to their land situated in 9 different villages and, in consequence, has dismissed the appeals filed by the State against the award of the Reference Court.15. In other words, Haricase (supra) also arose out of the same land acquisition proceedings out of which the present bunch of appeal arises. The appeal filed by Hari Singh was treated as the lead appeal by the High Court for determining the market rate of the land situated in 9 villages. By a common judgment dated 01.07.2013, the High Court partly allowed theappeals, enhanced the rate of compensation and in consequence dismissed the States appeals.We find no merit in this submission. In our view, the High Court has taken into account all the aspects, such as location of each village, distance from the city of Chandigarh and its quality as was done by the LAO and then has worked out the rates of the lands situated in each village after giving appropriate deduction/escalation, as the case may be, which has varied from 10%, 20% and 25% depending upon the aforementioned factors.19. In our view, the aforementioned approach of the High Court which we have also examined on perusal of the site map cannot be faulted with. It is just and proper calling for no interference.20. The appellant failed to show that the Courts below did not consider any material piece of evidence which had bearing over the issue in question. Likewise, the appellant was also not able to show that the High Court committed any fundamental error in determining the market value of the land situated in 9 villages.21. On the other hand, we also find that the High Court has fixed appropriate rates for the lands situated in each of the 9 villages including Bhago Majra village after taking into account their location and the potentiality from all angles.22. Like the appellant, all other landowners whose land is situated in village Bhago Majra have also got the compensation at the uniform rate depending upon the quality of three classes of land. It is clear from the following chart indicating the respective rates awarded by the Land Acquisition Officer, Reference Court and the High Court qua the | 0 | 1,632 | 486 | ### 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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hearing before the High Court, none appeared for the appellant. The High Court on hearing the State counsel partly allowed the appeal in favour of the landowner (appellant herein) in the light of the decision rendered in RFA No. 953 of 1994, Hari Singh and others vs. State of Punjab & Anr. decided on 01.07.2013 and enhanced the rate of compensation as was determined by the High Court in the case of Hari Singh (supra). The impugned order reads as under:“No one has appeared for the appellant.Learned counsel for the State very fairly submitted that the claim made in the present appeal is squarely covered by judgment of this Court in RFA No.953 of 1994 Hari Singh & Ors. vs. The State of Punjab & Anr. decided on 1.7.2013.For the reasons recorded in Hari Singh’s case (supra), the present appeal is disposed of in the same terms.”11. It is against this order, the appellant (landowner) has felt aggrieved and filed this appeal by way of special leave in this Court.12. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in partly allowing the appeal in the light of its earlier order dated 01.07.2013 passed in Hari Singh and others vs. State of Punjab & Anr. and other connected appeals (supra) or in other words, whether the appellant (landowner) is entitled to claim enhancement in the rate of compensation awarded by the High Court.13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.14. On perusal of the impugned order quoted above, it is clear that the main order was passed by the High Court in the lead appeal filed by another landowner -Hari Singh by which the High Court partly allowed the other several appeals filed by the landowners and has enhanced the compensation payable to the landowners in relation to their land situated in 9 different villages and, in consequence, has dismissed the appeals filed by the State against the award of the Reference Court.15. In other words, Hari Singh’s case (supra) also arose out of the same land acquisition proceedings out of which the present bunch of appeal arises. The appeal filed by Hari Singh was treated as the lead appeal by the High Court for determining the market rate of the land situated in 9 villages. By a common judgment dated 01.07.2013, the High Court partly allowed the landowners’ appeals, enhanced the rate of compensation and in consequence dismissed the States appeals.16. In Hari Singh’s case (supra), the High Court threadbare examined the issue of determination of market rate of the acquired land situated in each village (total 9) keeping in view the quality, location, and the distance of acquired land situated in 9 villages from Chandigarh. The High Court took note of the assessments made in relation to the lands situated at village Mehmudpur, Tehsil Sottal under the land acquisition notification dated 18.09.1985 and while providing for enhancement @ 10% for each year, enhanced the compensation for the acquisition in question that was made in the year 1988, for the lands situated at villages Matur, Matran, Siampur and Jandpur to Rs.2,50,000/-for Chahi with proportionate decrease for Barani and Gair Mumkin land. As regards the land situated at village Bhago Majra, the High Court made deduction to the extent of 20% keeping in view the nature of the land, its quality, location and distance from the city of Chandigarh and accordingly enhanced the rate of compensation as under:chart17. Learned counsel for the appellant (landowner), on the basis of the map of the site in question, argued that the land situated in village Bhago Majra with which we are concerned in these appeals has more potential as compared to the lands situated in other villages or in any event, according to learned counsel, it should have been made at par with the other lands where high rate has been determined. It was urged that the land situated in Bhago Majra is also near to Mohali and Chandigarh distance-wise and, therefore, the appellant is entitled to claim more compensation than what has been determined by the High Court in Hari Singh’s case (supra) or at least the appellant is entitled to claim the same compensation as has been granted to the landowners of the land which are situated in other villages.18. We find no merit in this submission. In our view, the High Court has taken into account all the aspects, such as location of each village, distance from the city of Chandigarh and its quality as was done by the LAO and then has worked out the rates of the lands situated in each village after giving appropriate deduction/escalation, as the case may be, which has varied from 10%, 20% and 25% depending upon the aforementioned factors.19. In our view, the aforementioned approach of the High Court which we have also examined on perusal of the site map cannot be faulted with. It is just and proper calling for no interference.20. The appellant failed to show that the Courts below did not consider any material piece of evidence which had bearing over the issue in question. Likewise, the appellant was also not able to show that the High Court committed any fundamental error in determining the market value of the land situated in 9 villages.21. On the other hand, we also find that the High Court has fixed appropriate rates for the lands situated in each of the 9 villages including Bhago Majra village after taking into account their location and the potentiality from all angles.22. Like the appellant, all other landowners whose land is situated in village Bhago Majra have also got the compensation at the uniform rate depending upon the quality of three classes of land. It is clear from the following chart indicating the respective rates awarded by the Land Acquisition Officer, Reference Court and the High Court qua the appellant’s land:chart
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0
### Explanation:
13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.14. On perusal of the impugned order quoted above, it is clear that the main order was passed by the High Court in the lead appeal filed by another landowner -Hari Singh by which the High Court partly allowed the other several appeals filed by the landowners and has enhanced the compensation payable to the landowners in relation to their land situated in 9 different villages and, in consequence, has dismissed the appeals filed by the State against the award of the Reference Court.15. In other words, Haricase (supra) also arose out of the same land acquisition proceedings out of which the present bunch of appeal arises. The appeal filed by Hari Singh was treated as the lead appeal by the High Court for determining the market rate of the land situated in 9 villages. By a common judgment dated 01.07.2013, the High Court partly allowed theappeals, enhanced the rate of compensation and in consequence dismissed the States appeals.We find no merit in this submission. In our view, the High Court has taken into account all the aspects, such as location of each village, distance from the city of Chandigarh and its quality as was done by the LAO and then has worked out the rates of the lands situated in each village after giving appropriate deduction/escalation, as the case may be, which has varied from 10%, 20% and 25% depending upon the aforementioned factors.19. In our view, the aforementioned approach of the High Court which we have also examined on perusal of the site map cannot be faulted with. It is just and proper calling for no interference.20. The appellant failed to show that the Courts below did not consider any material piece of evidence which had bearing over the issue in question. Likewise, the appellant was also not able to show that the High Court committed any fundamental error in determining the market value of the land situated in 9 villages.21. On the other hand, we also find that the High Court has fixed appropriate rates for the lands situated in each of the 9 villages including Bhago Majra village after taking into account their location and the potentiality from all angles.22. Like the appellant, all other landowners whose land is situated in village Bhago Majra have also got the compensation at the uniform rate depending upon the quality of three classes of land. It is clear from the following chart indicating the respective rates awarded by the Land Acquisition Officer, Reference Court and the High Court qua the
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State Of West Bengal Vs. Bireswar Dutta Estate Pvt. Ltd. | published in the Gazette on 25.3.1996, as public notice of the substance of the said notification was given in the locality only on 30.6.1997, the date of publication of the notification for the purpose of Section 4(1) of the Act, would be 30.6.1997 - the date on which the public notice was given in the locality. Final declaration was made on 12.8.1997 within two months from the date of publication of the preliminary notification. The contention that the final notification was made beyond one year from the date of publication of the preliminary notification is therefore, without basis.7. The High Court proceeded on a wrong assumption that the public notice of the substance of the preliminary notification should be published in the locality within one year from the date of publication in the Gazette. We find that there is no such requirement under Section 4(1) of the Act. Section 4(1) does not specify the period within which public notice of the substance of the notification should be put up in convenient places of the locality. The one year period referred to in Section 6 of the Act is the period within which the final declaration has to be made from the date of publication of the preliminary notification. Publication of the notification under section 4(1) of the Act is defined as the last of the three dates, that is (i) publication in the Gazette, (ii) publication in two newspapers, and (iii) public notice of the substance of the notification in convenient places in the locality. If there is a gap of more than one year from the date of publication of preliminary notification in the Gazette and issue of public notice of the substance of such notification in the locality, it would not affect the validity of the preliminary notification but will only postpone the date of preliminary notification for other purposes like determination of market value under section 23 of the Act. As 30.6.1997 is the date of publication of the preliminary notification and not 4.3.1996, the first ground on which the appellate Bench of the High Court has invalidated the acquisition cannot be sustained.Re : Question (ii)8. It is not in dispute that the High Court had issued an order of status quo in regard to the acquisition of land on 25.9.1997 and the said order of status quo came to an end when the suit itself was decreed on 9.9.1998 in favour of respondents 1 and 2. If the period between 25.9.1997 and .9.1998, during which the order of status quo was in effect, is excluded, it is seen that the Award dated 24.2.2000 was made within two years from 12.8.1997 - the date of publication of the final declaration. The total period that elapsed between date of publication of declaration and the date of award is 2 years 6 months and 12 days. The order of status quo was in force for a period of 11 months and 14 days. If that period is deducted, we find that the Award was made within 1 year 6 months and 28 days.9. One incidental question that is raised by respondents 1 and 2 is whether the order of status quo could be considered to be an interim stay of proceedings to be taken in pursuance of the declaration, for the purpose of Section 11A of the Act. In this context we may refer to the decision of the this Court in M. Ramalinga Thevar Vs. State of T.N. & Ors., (2000) 4 SCC 322 wherein this Court held that if there is a stay of dispossession, that would amount to stay of the declaration. This Court observed : "As per the Explanation to Section 11-A of the Land Acquisition Act, 1894 the period of exclusion from the time is the period during which any action or proceedings to be taken in pursuance of the said declaration is stayed. Undoubtedly, one of the actions contemplated pursuant to the declaration is taking possession of the land, though such action is a post-award step in normal circumstances, in emergent circumstances it can as well be a pre-award step. Nonetheless, taking possession is one of the actions to be adopted as a follow-up measure pursuant to the declaration envisaged in Section 6 of the Act. The consequence mentioned in Section 11-A is a self- operating statutory process and, therefore, it can operate only when the conditions specified therein conjoin together. The consequence would step in only when there is fusion of all the conditions stipulated therein. If there is any stay regarding any of the actions to be taken pursuant to the declaration then the consequence of lapse would not happen." 10. The validity of the final declaration published on 12.8.1997 was the subject matter of the civil suit for possession of the property in question, filed by respondents 1 and 2. As noticed above, the learned Single Judge, while decreeing the said suit for possession, held that the declaration gazetted on 12.8.1997 was invalid. The appellate bench however upheld the validity of the said declaration. In such a suit, when the High Court directed status quo, it meant that respondents 1 and 2 as the plaintiffs-owners and the State as the defendant, could not do any act with reference to the property in question. Apparently in view of the status quo order, the State did not do any act or make the award in regard to the property from 25.9.1997 till 9.9.1998, as it was prohibited from making an award by the status quo order. Thus when there was an order of status quo, for all purposes, the appellants were prohibited from taking any further proceedings in pursuance of the declaration in regard to the property in question. Therefore, the said period of status quo will have to be excluded, for calculating the two years period under Section 11A of the Act. Therefore, even the second ground on which the High Court found the acquisition to be invalid cannot be sustained. | 1[ds]In this case the date of publication of the preliminary notification would be 30.6.1997, as that was the date of the public notice of the substance of the preliminary notification given at convenient places in the locality, and that was the last of the dates of publication and public notice.6. In view of the above, though the date of preliminary notification is 4.3.1996 and was published in the Gazette on 25.3.1996, as public notice of the substance of the said notification was given in the locality only on 30.6.1997, the date of publication of the notification for the purpose of Section 4(1) of the Act, would be 30.6.1997the date on which the public notice was given in the locality. Final declaration was made on 12.8.1997 within two months from the date of publication of the preliminary notification. The contention that the final notification was made beyond one year from the date of publication of the preliminary notification is therefore, without basis.7. The High Court proceeded on a wrong assumption that the public notice of the substance of the preliminary notification should be published in the locality within one year from the date of publication in the Gazette. We find that there is no such requirement under Section 4(1) of the Act. Section 4(1) does not specify the period within which public notice of the substance of the notification should be put up in convenient places of the locality. The one year period referred to in Section 6 of the Act is the period within which the final declaration has to be made from the date of publication of the preliminary notification. Publication of the notification under section 4(1) of the Act is defined as the last of the three dates, that is (i) publication in the Gazette, (ii) publication in two newspapers, and (iii) public notice of the substance of the notification in convenient places in the locality. If there is a gap of more than one year from the date of publication of preliminary notification in the Gazette and issue of public notice of the substance of such notification in the locality, it would not affect the validity of the preliminary notification but will only postpone the date of preliminary notification for other purposes like determination of market value under section 23 of the Act. As 30.6.1997 is the date of publication of the preliminary notification and not 4.3.1996, the first ground on which the appellate Bench of the High Court has invalidated the acquisition cannot be sustained.Re : Question (ii)8. It is not in dispute that the High Court had issued an order of status quo in regard to the acquisition of land on 25.9.1997 and the said order of status quo came to an end when the suit itself was decreed on 9.9.1998 in favour of respondents 1 and 2. If the period between 25.9.1997 and .9.1998, during which the order of status quo was in effect, is excluded, it is seen that the Award dated 24.2.2000 was made within two years from 12.8.1997the date of publication of the final declaration. The total period that elapsed between date of publication of declaration and the date of award is 2 years 6 months and 12 days. The order of status quo was in force for a period of 11 months and 14 days. If that period is deducted, we find that the Award was made within 1 year 6 months and 28 days.9. One incidental question that is raised by respondents 1 and 2 is whether the order of status quo could be considered to be an interim stay of proceedings to be taken in pursuance of the declaration, for the purpose of Section 11A of the Act. In this context we may refer to the decision of the this Court in M. Ramalinga Thevar Vs. State of T.N. & Ors., (2000) 4 SCC 322 wherein this Court held that if there is a stay of dispossession, that would amount to stay of the declaration.The validity of the final declaration published on 12.8.1997 was the subject matter of the civil suit for possession of the property in question, filed by respondents 1 and 2. As noticed above, the learned Single Judge, while decreeing the said suit for possession, held that the declaration gazetted on 12.8.1997 was invalid. The appellate bench however upheld the validity of the said declaration. In such a suit, when the High Court directed status quo, it meant that respondents 1 and 2 as theand the State as the defendant, could not do any act with reference to the property in question. Apparently in view of the status quo order, the State did not do any act or make the award in regard to the property from 25.9.1997 till 9.9.1998, as it was prohibited from making an award by the status quo order. Thus when there was an order of status quo, for all purposes, the appellants were prohibited from taking any further proceedings in pursuance of the declaration in regard to the property in question. Therefore, the said period of status quo will have to be excluded, for calculating the two years period under Section 11A of the Act. Therefore, even the second ground on which the High Court found the acquisition to be invalid cannot be sustained. | 1 | 2,042 | 972 | ### 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:
published in the Gazette on 25.3.1996, as public notice of the substance of the said notification was given in the locality only on 30.6.1997, the date of publication of the notification for the purpose of Section 4(1) of the Act, would be 30.6.1997 - the date on which the public notice was given in the locality. Final declaration was made on 12.8.1997 within two months from the date of publication of the preliminary notification. The contention that the final notification was made beyond one year from the date of publication of the preliminary notification is therefore, without basis.7. The High Court proceeded on a wrong assumption that the public notice of the substance of the preliminary notification should be published in the locality within one year from the date of publication in the Gazette. We find that there is no such requirement under Section 4(1) of the Act. Section 4(1) does not specify the period within which public notice of the substance of the notification should be put up in convenient places of the locality. The one year period referred to in Section 6 of the Act is the period within which the final declaration has to be made from the date of publication of the preliminary notification. Publication of the notification under section 4(1) of the Act is defined as the last of the three dates, that is (i) publication in the Gazette, (ii) publication in two newspapers, and (iii) public notice of the substance of the notification in convenient places in the locality. If there is a gap of more than one year from the date of publication of preliminary notification in the Gazette and issue of public notice of the substance of such notification in the locality, it would not affect the validity of the preliminary notification but will only postpone the date of preliminary notification for other purposes like determination of market value under section 23 of the Act. As 30.6.1997 is the date of publication of the preliminary notification and not 4.3.1996, the first ground on which the appellate Bench of the High Court has invalidated the acquisition cannot be sustained.Re : Question (ii)8. It is not in dispute that the High Court had issued an order of status quo in regard to the acquisition of land on 25.9.1997 and the said order of status quo came to an end when the suit itself was decreed on 9.9.1998 in favour of respondents 1 and 2. If the period between 25.9.1997 and .9.1998, during which the order of status quo was in effect, is excluded, it is seen that the Award dated 24.2.2000 was made within two years from 12.8.1997 - the date of publication of the final declaration. The total period that elapsed between date of publication of declaration and the date of award is 2 years 6 months and 12 days. The order of status quo was in force for a period of 11 months and 14 days. If that period is deducted, we find that the Award was made within 1 year 6 months and 28 days.9. One incidental question that is raised by respondents 1 and 2 is whether the order of status quo could be considered to be an interim stay of proceedings to be taken in pursuance of the declaration, for the purpose of Section 11A of the Act. In this context we may refer to the decision of the this Court in M. Ramalinga Thevar Vs. State of T.N. & Ors., (2000) 4 SCC 322 wherein this Court held that if there is a stay of dispossession, that would amount to stay of the declaration. This Court observed : "As per the Explanation to Section 11-A of the Land Acquisition Act, 1894 the period of exclusion from the time is the period during which any action or proceedings to be taken in pursuance of the said declaration is stayed. Undoubtedly, one of the actions contemplated pursuant to the declaration is taking possession of the land, though such action is a post-award step in normal circumstances, in emergent circumstances it can as well be a pre-award step. Nonetheless, taking possession is one of the actions to be adopted as a follow-up measure pursuant to the declaration envisaged in Section 6 of the Act. The consequence mentioned in Section 11-A is a self- operating statutory process and, therefore, it can operate only when the conditions specified therein conjoin together. The consequence would step in only when there is fusion of all the conditions stipulated therein. If there is any stay regarding any of the actions to be taken pursuant to the declaration then the consequence of lapse would not happen." 10. The validity of the final declaration published on 12.8.1997 was the subject matter of the civil suit for possession of the property in question, filed by respondents 1 and 2. As noticed above, the learned Single Judge, while decreeing the said suit for possession, held that the declaration gazetted on 12.8.1997 was invalid. The appellate bench however upheld the validity of the said declaration. In such a suit, when the High Court directed status quo, it meant that respondents 1 and 2 as the plaintiffs-owners and the State as the defendant, could not do any act with reference to the property in question. Apparently in view of the status quo order, the State did not do any act or make the award in regard to the property from 25.9.1997 till 9.9.1998, as it was prohibited from making an award by the status quo order. Thus when there was an order of status quo, for all purposes, the appellants were prohibited from taking any further proceedings in pursuance of the declaration in regard to the property in question. Therefore, the said period of status quo will have to be excluded, for calculating the two years period under Section 11A of the Act. Therefore, even the second ground on which the High Court found the acquisition to be invalid cannot be sustained.
### Response:
1
### Explanation:
In this case the date of publication of the preliminary notification would be 30.6.1997, as that was the date of the public notice of the substance of the preliminary notification given at convenient places in the locality, and that was the last of the dates of publication and public notice.6. In view of the above, though the date of preliminary notification is 4.3.1996 and was published in the Gazette on 25.3.1996, as public notice of the substance of the said notification was given in the locality only on 30.6.1997, the date of publication of the notification for the purpose of Section 4(1) of the Act, would be 30.6.1997the date on which the public notice was given in the locality. Final declaration was made on 12.8.1997 within two months from the date of publication of the preliminary notification. The contention that the final notification was made beyond one year from the date of publication of the preliminary notification is therefore, without basis.7. The High Court proceeded on a wrong assumption that the public notice of the substance of the preliminary notification should be published in the locality within one year from the date of publication in the Gazette. We find that there is no such requirement under Section 4(1) of the Act. Section 4(1) does not specify the period within which public notice of the substance of the notification should be put up in convenient places of the locality. The one year period referred to in Section 6 of the Act is the period within which the final declaration has to be made from the date of publication of the preliminary notification. Publication of the notification under section 4(1) of the Act is defined as the last of the three dates, that is (i) publication in the Gazette, (ii) publication in two newspapers, and (iii) public notice of the substance of the notification in convenient places in the locality. If there is a gap of more than one year from the date of publication of preliminary notification in the Gazette and issue of public notice of the substance of such notification in the locality, it would not affect the validity of the preliminary notification but will only postpone the date of preliminary notification for other purposes like determination of market value under section 23 of the Act. As 30.6.1997 is the date of publication of the preliminary notification and not 4.3.1996, the first ground on which the appellate Bench of the High Court has invalidated the acquisition cannot be sustained.Re : Question (ii)8. It is not in dispute that the High Court had issued an order of status quo in regard to the acquisition of land on 25.9.1997 and the said order of status quo came to an end when the suit itself was decreed on 9.9.1998 in favour of respondents 1 and 2. If the period between 25.9.1997 and .9.1998, during which the order of status quo was in effect, is excluded, it is seen that the Award dated 24.2.2000 was made within two years from 12.8.1997the date of publication of the final declaration. The total period that elapsed between date of publication of declaration and the date of award is 2 years 6 months and 12 days. The order of status quo was in force for a period of 11 months and 14 days. If that period is deducted, we find that the Award was made within 1 year 6 months and 28 days.9. One incidental question that is raised by respondents 1 and 2 is whether the order of status quo could be considered to be an interim stay of proceedings to be taken in pursuance of the declaration, for the purpose of Section 11A of the Act. In this context we may refer to the decision of the this Court in M. Ramalinga Thevar Vs. State of T.N. & Ors., (2000) 4 SCC 322 wherein this Court held that if there is a stay of dispossession, that would amount to stay of the declaration.The validity of the final declaration published on 12.8.1997 was the subject matter of the civil suit for possession of the property in question, filed by respondents 1 and 2. As noticed above, the learned Single Judge, while decreeing the said suit for possession, held that the declaration gazetted on 12.8.1997 was invalid. The appellate bench however upheld the validity of the said declaration. In such a suit, when the High Court directed status quo, it meant that respondents 1 and 2 as theand the State as the defendant, could not do any act with reference to the property in question. Apparently in view of the status quo order, the State did not do any act or make the award in regard to the property from 25.9.1997 till 9.9.1998, as it was prohibited from making an award by the status quo order. Thus when there was an order of status quo, for all purposes, the appellants were prohibited from taking any further proceedings in pursuance of the declaration in regard to the property in question. Therefore, the said period of status quo will have to be excluded, for calculating the two years period under Section 11A of the Act. Therefore, even the second ground on which the High Court found the acquisition to be invalid cannot be sustained.
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Kasturi Lal Vs. State of Haryana | High Court was that it found it proved from the evidence recorded by it that appellant Kasturi Lals brothers and other relations were employed in the police department at the relevant time and that the investigations of the case had been tainted and an effort had been made to mould it in his favour. The High Court did not however give its reasons for holding that the investigation was tainted or moulded in favour of appellant Kasturi Lal and, did not state in what respect the evidence was tainted or moulded. As it is, we find it difficult to ignore the argument of Mr. Anthony that even if it were assumed, for the sake of argument, that the appellant had some junior policed officers as his relations, that could not be said to corroborate the evidence of those who claimed to have witnessed the incident, or to lend support to their version in that regard, when there was, as mentioned above, a discrepancy in the evidence of the medical officer and their version in regard to the infliction of injuries by axes on the head of the deceased. 8. The other reason which prevailed with the High Court was that there was evidence to show that appellant Kasturi Lal followed Girdhari Lal (PW 4) to village Mehra along with Gurmukh Singh and Mangal Singh. What Girdhari Lal stated in this connection was that the ran towards village Mehra after he had been beaten by the accused and that on reaching there he narrated the incident to sarpanch Ram Kishan (PW 10). According to the witness, in the meantime, appellant Kasturi Lal, and Gurmukh Singh and Mangal Singh followed him there, to beat him. So as the witness did not state that he was followed to village Mehra by Khazan Singh and Gurdial Singh accused, the High Court took the view that Kasturi Lals case was distinguishable from their case and he did not deserve an acquittal. But we find that here again the High Court fell into an error. As has been pointed out by Mr. Anthony it did not take notice of the fact that there was no mention in the first information report, which had been recorded by Girdhari Lal himself, that appellant Kasturi Lal followed him to village Mehra alone or in the company of Gurmukh Singh and Mangal Singh accused. The report makes a mention of Girdhari lals running to village Mehra and narrating the incident to sarpanch Ram Kishan, but it does not mention that there was any pursuit by appellant Kasturi Lal or any other accused. The High Court also lost sight of the fact that Madan Lal (PW 5) and Smt. Ram Piari (PW 7), who were examined as the other eyewitnesses of the incident, stated clearly that all the seven accused ran after Girdhari Lal, to village Mehra, after beating the deceased. So even if the statement of Ram Kishan (PW 10), which runs counter to the version given by the prosecution, is left out of consideration, if appears that the High Court did not read the evidence correctly even though it had a material bearing on the second circumstance mentioned any it for distinguishing the appellants case from that of Khazan Singh and Gurdial Singh accused. 9. Our attention has been invited by Mr. Goswami to the question of motive, and it has been argued that while appellant Kasturi Lal had a motive for committing the offence, there was no such motive in the case of the acquitted accused Khazan Singh and Gurdial Singh, so that it was another reason for distinguishing his case. Mr. Anthony has argued, on the other hand, that the High Court did not come to grips with the evidence on the question of motive also, and that was why it failed to appreciate that the case of Kasturi Lal was not distinguishable from the case of the acquitted accused on that account also. 10. It has been stated by Girdhari Lal (PW 4) that accused Khazan Singh and Gurdial Singh were first cousins, and appellant Kasturi Lal was the brother-in-law of Gurdial Singh. The witness has stated further that accused Ajit Singh was the nephew of Khazan Singh and that Gurmukh Singh, Mangal Singh and Pooran Singh, the other accused, were on visiting terms with the remaining accused. Girdhari Lal has stated that there was fight between his brothers and accused Ajit Singh and Khazan Singh in 1961, and that accused Gurmukh Singh and Pooran Singh used to cultivate some Land the paddy crop of 1967. Then he has stated that Mohan Singh, brother of Ajit Singh, removed the barley crop of Sardari Lal in 1967 and there were cross security proceedings against them. The witness has further stated that the field of Sardari Lal and Madan Lal and they used to cultivate it, and that a dispute was raised in the respect by kasturi Lal, Gurdial Singh, Pooran Singh, Gurmukh Singh, Ajit Singh, Khazan Singh and Mangal Singh. It would thus appeal that the evidence regarding motive was common to all the accused and was not confined to appellant Kasturi Lal who could not be said to have motive different from the acquitted accused Khazan Singh and Gurdial Singh. Then there is the further fact that all three of them were not found to have received any injuries in the alleged incident so that their cases were not different in that respect also. 11. Thus the reasons given by the High Court for distinguishing the case of Kasturi Lal from that of Khazan Singh and Gurdial Singh were not correct, and there is justification for the argument of Mr. Anthony that such a distinction would not have been made if the High Court had read the evidence correctly in all material particulars. So when the case of kasturi Lal was not distinguishable from that of Khazan Singh and Gurdial Singh, the High Court erred in taking the view that he was not entitled to acquittal. | 1[ds]It would thus appeal that the evidence regarding motive was common to all the accused and was not confined to appellant Kasturi Lal who could not be said to have motive different from the acquitted accused Khazan Singh and Gurdial Singh. Then there is the further fact that all three of them were not found to have received any injuries in the alleged incident so that their cases were not different in that respect also11. Thus the reasons given by the High Court for distinguishing the case of Kasturi Lal from that of Khazan Singh and Gurdial Singh were not correct, and there is justification for the argument of Mr. Anthony that such a distinction would not have been made if the High Court had read the evidence correctly in all material particulars. So when the case of kasturi Lal was not distinguishable from that of Khazan Singh and Gurdial Singh, the High Court erred in taking the view that he was not entitled to acquittal. | 1 | 2,503 | 176 | ### 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:
High Court was that it found it proved from the evidence recorded by it that appellant Kasturi Lals brothers and other relations were employed in the police department at the relevant time and that the investigations of the case had been tainted and an effort had been made to mould it in his favour. The High Court did not however give its reasons for holding that the investigation was tainted or moulded in favour of appellant Kasturi Lal and, did not state in what respect the evidence was tainted or moulded. As it is, we find it difficult to ignore the argument of Mr. Anthony that even if it were assumed, for the sake of argument, that the appellant had some junior policed officers as his relations, that could not be said to corroborate the evidence of those who claimed to have witnessed the incident, or to lend support to their version in that regard, when there was, as mentioned above, a discrepancy in the evidence of the medical officer and their version in regard to the infliction of injuries by axes on the head of the deceased. 8. The other reason which prevailed with the High Court was that there was evidence to show that appellant Kasturi Lal followed Girdhari Lal (PW 4) to village Mehra along with Gurmukh Singh and Mangal Singh. What Girdhari Lal stated in this connection was that the ran towards village Mehra after he had been beaten by the accused and that on reaching there he narrated the incident to sarpanch Ram Kishan (PW 10). According to the witness, in the meantime, appellant Kasturi Lal, and Gurmukh Singh and Mangal Singh followed him there, to beat him. So as the witness did not state that he was followed to village Mehra by Khazan Singh and Gurdial Singh accused, the High Court took the view that Kasturi Lals case was distinguishable from their case and he did not deserve an acquittal. But we find that here again the High Court fell into an error. As has been pointed out by Mr. Anthony it did not take notice of the fact that there was no mention in the first information report, which had been recorded by Girdhari Lal himself, that appellant Kasturi Lal followed him to village Mehra alone or in the company of Gurmukh Singh and Mangal Singh accused. The report makes a mention of Girdhari lals running to village Mehra and narrating the incident to sarpanch Ram Kishan, but it does not mention that there was any pursuit by appellant Kasturi Lal or any other accused. The High Court also lost sight of the fact that Madan Lal (PW 5) and Smt. Ram Piari (PW 7), who were examined as the other eyewitnesses of the incident, stated clearly that all the seven accused ran after Girdhari Lal, to village Mehra, after beating the deceased. So even if the statement of Ram Kishan (PW 10), which runs counter to the version given by the prosecution, is left out of consideration, if appears that the High Court did not read the evidence correctly even though it had a material bearing on the second circumstance mentioned any it for distinguishing the appellants case from that of Khazan Singh and Gurdial Singh accused. 9. Our attention has been invited by Mr. Goswami to the question of motive, and it has been argued that while appellant Kasturi Lal had a motive for committing the offence, there was no such motive in the case of the acquitted accused Khazan Singh and Gurdial Singh, so that it was another reason for distinguishing his case. Mr. Anthony has argued, on the other hand, that the High Court did not come to grips with the evidence on the question of motive also, and that was why it failed to appreciate that the case of Kasturi Lal was not distinguishable from the case of the acquitted accused on that account also. 10. It has been stated by Girdhari Lal (PW 4) that accused Khazan Singh and Gurdial Singh were first cousins, and appellant Kasturi Lal was the brother-in-law of Gurdial Singh. The witness has stated further that accused Ajit Singh was the nephew of Khazan Singh and that Gurmukh Singh, Mangal Singh and Pooran Singh, the other accused, were on visiting terms with the remaining accused. Girdhari Lal has stated that there was fight between his brothers and accused Ajit Singh and Khazan Singh in 1961, and that accused Gurmukh Singh and Pooran Singh used to cultivate some Land the paddy crop of 1967. Then he has stated that Mohan Singh, brother of Ajit Singh, removed the barley crop of Sardari Lal in 1967 and there were cross security proceedings against them. The witness has further stated that the field of Sardari Lal and Madan Lal and they used to cultivate it, and that a dispute was raised in the respect by kasturi Lal, Gurdial Singh, Pooran Singh, Gurmukh Singh, Ajit Singh, Khazan Singh and Mangal Singh. It would thus appeal that the evidence regarding motive was common to all the accused and was not confined to appellant Kasturi Lal who could not be said to have motive different from the acquitted accused Khazan Singh and Gurdial Singh. Then there is the further fact that all three of them were not found to have received any injuries in the alleged incident so that their cases were not different in that respect also. 11. Thus the reasons given by the High Court for distinguishing the case of Kasturi Lal from that of Khazan Singh and Gurdial Singh were not correct, and there is justification for the argument of Mr. Anthony that such a distinction would not have been made if the High Court had read the evidence correctly in all material particulars. So when the case of kasturi Lal was not distinguishable from that of Khazan Singh and Gurdial Singh, the High Court erred in taking the view that he was not entitled to acquittal.
### Response:
1
### Explanation:
It would thus appeal that the evidence regarding motive was common to all the accused and was not confined to appellant Kasturi Lal who could not be said to have motive different from the acquitted accused Khazan Singh and Gurdial Singh. Then there is the further fact that all three of them were not found to have received any injuries in the alleged incident so that their cases were not different in that respect also11. Thus the reasons given by the High Court for distinguishing the case of Kasturi Lal from that of Khazan Singh and Gurdial Singh were not correct, and there is justification for the argument of Mr. Anthony that such a distinction would not have been made if the High Court had read the evidence correctly in all material particulars. So when the case of kasturi Lal was not distinguishable from that of Khazan Singh and Gurdial Singh, the High Court erred in taking the view that he was not entitled to acquittal.
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Hind Construction Contractors Vs. State of Maharashtra | 07, 000/-. 1/4th work means the work of about Rs. 27, 000/-. It is not possible to do the work of Rs. 27, 000/- in 1/4th time as the days were rainy. This was not reasonable." The witness in para 12 of his deposition has also given the following admission:-"It is not specifically mentioned in the agreement (Ex. 34), that the suit work was urgent and that it was to be completed within 12 months. In this agreement (Ex. 34) there are the clauses of imposing a penalty and extension of time." 6. Having regard to the aforesaid material on record, particularly the clauses in the agreement pertaining to imposition of penalty and extension of time it seems to us clear that time (12 months period) was never intended by the parties to be of the essence of the contract. Further from the correspondence on the record, particularly, the letter (Ex. 78) by which the contract was rescinded it does appear that the stipulation of 12 months period was waived, the contractor having been allowed to do some more work after the expiry of the period, albeit at his risk, by making the recision effective from August 16, 1956. 7. Once either of the aforesaid conclusions is reached it would be difficult to accept the High Courts finding that the recision of the contract on the part of the respondent- defendant was proper and justified on the basis that the same was neither shown to be mala fide nor unreasonable. It must be observed that it was never the case of the appellant-plaintiff that the recision of the contract on the part of the respondent-defendant was mala fide. Counsel for the appellant-plaintiff further pointed out and, in our view, rightly that the five or six factors, namely, (1) the contract having been given at the thresh old of monsoon, the period of monsoon (4 months) ought not to have been reckoned, (2) absence of proper road and approach to the work site during the rainy season and a couple of months thereafter, (3) unreasonable rejection by the Government Officers of material brought on the site, which material was later on allowed to be used, (4) difficulty in procuring labour due to malarious climate at the site, (5) delay in issuing quarry permit and (6) extra time taken for doing extra work that was entrusted ought to have been taken into account-were put forward by the appellant-plaintiff merely for the purpose of showing that the refusal to extend the time by the Superintending Engineer although recommended by the S.D.O. and Executive Engineer was unreasonable and not for showing that the recision of the contract was unreasonable or unjustified. 8. In our view, the question would not be whether the recision of the contract was unreasonable and, therefore, unjustified but whether the recision of the contract in the circumstances of the case was wrongful and illegal. If time was not of the essence of the contract or if the stipulation as to the time fixed for completion had, by reason of waiver, ceased to be applicable then the only course open to the respondent-defendant was to fix some time making it the essence and if within the time so fixed the appellant-plaintiff had failed to complete the work the respondent-defendant could have rescinded the contract. The High Court has taken the view that the contract was rightly rescinded by the respondent-defendant because by about July 21, 1956 (vide letter Ex. 74) the appellant-plaintiff had done work of the value of Rs. 35, 000/- as against the tender value of Rs. 1, 07, 000/-, that is to say, only 1/3rd of the total work had been completed and, therefore, even though time was not of the essence of the contract, the appellant-plaintiff, in the circumstances, could not have completed the work even within the next three months. In our view, this approach adopted by the respondent-defendant and upheld by the High Court is not correct. Long before the expiry of the period of 12 months the appellant-plaintiff had by his letter dated June 6, 1956 (Ex. 68) requested for extension of period of completion up to the end of December, 1956; this request was repeated by another letter dated June 23, 1956 (Ex. 69). May be the reasons or grounds on which the request was made may not have appealed to the Superintending Engineer but some reasonable time making it the essence ought to have been granted. In this behalf it may be stated that the S.D.O. by his letter (Ex. 69) had recommended extension upto December 1956 as sought while by his letter dated June 23, 1956 (Ex. 70) addressed to the Superintending Engineer, the Executive Engineer had recommended that extension of time up to October 30, 1956 may be granted to the appellant-plaintiff with clear intimation that if he failed to complete the work by then, the maximum penalty allowable under cl. 2, namely, 10% of the cost of the work will be inflicted on him, but the recommendation did not receive approval of the Superintending Engineer. It appears that the appellant- plaintiff had an interview with the Superintending Engineer on August 24, 1956 when a written representation (Ex. 99) was handed over and the whole position was sought to be explained to the Superintending Engineer but within three days of the interview by the letter dated August 27, 1956 (Ex. 78) the contract was rescinded and the full security deposit was forfeited to Government. It will thus appear clear that though time was not of the essence of the contract, the respondent-defendant did not fix any further period making time the essence directing the appellant- plaintiff to complete the work within such period; instead it rescinded the contract straightaway by letter dated August 27, 1956. Such recision on the part of the respondent-defendant was clearly illegal and wrongful and thereby the respondent-defendant committed a breach of contract, with the result that there could be no forfeiture of the security deposit. | 1[ds]It will be clear from t he aforesaid statement of law that even where the parties have expressly provided that time is of the essence of the contract such a stipulation will have to be read along with other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental, for instance, if the contract were to include causes providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week the work undertaken remains unfinished on the expiry of the time provided in the contract such clauses would be construed as rendering ineffective the express provision relating to the time being of the essence of contractOnce either of the aforesaid conclusions is reached it would be difficult to accept the High Courts finding that the recision of the contract on the part of the respondent- defendant was proper and justified on the basis that the same was neither shown to be mala fide nor unreasonable. It must be observed that it was never the case of the appellant-plaintiff that the recision of the contract on the part of the respondent-defendant was mala fide. Counsel for the appellant-plaintiff further pointed out and, in our view, rightly that the five or six factors, namely,(1) the contract having been given at the thresh old of monsoon, the period of monsoon (4 months) ought not to have been reckoned,(2) absence of proper road and approach to the work site during the rainy season and a couple of months thereafter,(3) unreasonable rejection by the Government Officers of material brought on the site, which material was later on allowed to be used,(4) difficulty in procuring labour due to malarious climate at the site,(5) delay in issuing quarry permit and(6) extra time taken for doing extra work that was entrusted ought to have been taken into account-were put forward by the appellant-plaintiff merely for the purpose of showing that the refusal to extend the time by the Superintending Engineer although recommended by the S.D.O. and Executive Engineer was unreasonable and not for showing that the recision of the contract was unreasonable or unjustified.In our view, the question would not be whether the recision of the contract was unreasonable and, therefore, unjustified but whether the recision of the contract in the circumstances of the case was wrongful and illegal. If time was not of the essence of the contract or if the stipulation as to the time fixed for completion had, by reason of waiver, ceased to be applicable then the only course open to the respondent-defendant was to fix some time making it the essence and if within the time so fixed the appellant-plaintiff had failed to complete the work the respondent-defendant could have rescinded the contract. The High Court has taken the view that the contract was rightly rescinded by the respondent-defendant because by about July 21, 1956 (vide letter Ex. 74) the appellant-plaintiff had done work of the value of Rs. 35, 000/- as against the tender value of Rs. 1, 07, 000/-, that is to say, only 1/3rd of the total work had been completed and, therefore, even though time was not of the essence of the contract, the appellant-plaintiff, in the circumstances, could not have completed the work even within the next three months. In our view, this approach adopted by the respondent-defendant and upheld by the High Court is not correct. Long before the expiry of the period of 12 months the appellant-plaintiff had by his letter dated June 6, 1956 (Ex. 68) requested for extension of period of completion up to the end of December, 1956; this request was repeated by another letter dated June 23, 1956 (Ex. 69). May be the reasons or grounds on which the request was made may not have appealed to the Superintending Engineer but some reasonable time making it the essence ought to have been granted. In this behalf it may be stated that the S.D.O. by his letter (Ex. 69) had recommended extension upto December 1956 as sought while by his letter dated June 23, 1956 (Ex. 70) addressed to the Superintending Engineer, the Executive Engineer had recommended that extension of time up to October 30, 1956 may be granted to the appellant-plaintiff with clear intimation that if he failed to complete the work by then, the maximum penalty allowable under cl. 2, namely, 10% of the cost of the work will be inflicted on him, but the recommendation did not receive approval of the Superintending Engineer. It appears that the appellant- plaintiff had an interview with the Superintending Engineer on August 24, 1956 when a written representation (Ex. 99) was handed over and the whole position was sought to be explained to the Superintending Engineer but within three days of the interview by the letter dated August 27, 1956 (Ex. 78) the contract was rescinded and the full security deposit was forfeited to Government. It will thus appear clear that though time was not of the essence of the contract, the respondent-defendant did not fix any further period making time the essence directing the appellant- plaintiff to complete the work within such period; instead it rescinded the contract straightaway by letter dated August 27, 1956. Such recision on the part of the respondent-defendant was clearly illegal and wrongful and thereby the respondent-defendant committed a breach of contract, with the result that there could be no forfeiture of the security deposit. | 1 | 5,176 | 1,038 | ### 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:
07, 000/-. 1/4th work means the work of about Rs. 27, 000/-. It is not possible to do the work of Rs. 27, 000/- in 1/4th time as the days were rainy. This was not reasonable." The witness in para 12 of his deposition has also given the following admission:-"It is not specifically mentioned in the agreement (Ex. 34), that the suit work was urgent and that it was to be completed within 12 months. In this agreement (Ex. 34) there are the clauses of imposing a penalty and extension of time." 6. Having regard to the aforesaid material on record, particularly the clauses in the agreement pertaining to imposition of penalty and extension of time it seems to us clear that time (12 months period) was never intended by the parties to be of the essence of the contract. Further from the correspondence on the record, particularly, the letter (Ex. 78) by which the contract was rescinded it does appear that the stipulation of 12 months period was waived, the contractor having been allowed to do some more work after the expiry of the period, albeit at his risk, by making the recision effective from August 16, 1956. 7. Once either of the aforesaid conclusions is reached it would be difficult to accept the High Courts finding that the recision of the contract on the part of the respondent- defendant was proper and justified on the basis that the same was neither shown to be mala fide nor unreasonable. It must be observed that it was never the case of the appellant-plaintiff that the recision of the contract on the part of the respondent-defendant was mala fide. Counsel for the appellant-plaintiff further pointed out and, in our view, rightly that the five or six factors, namely, (1) the contract having been given at the thresh old of monsoon, the period of monsoon (4 months) ought not to have been reckoned, (2) absence of proper road and approach to the work site during the rainy season and a couple of months thereafter, (3) unreasonable rejection by the Government Officers of material brought on the site, which material was later on allowed to be used, (4) difficulty in procuring labour due to malarious climate at the site, (5) delay in issuing quarry permit and (6) extra time taken for doing extra work that was entrusted ought to have been taken into account-were put forward by the appellant-plaintiff merely for the purpose of showing that the refusal to extend the time by the Superintending Engineer although recommended by the S.D.O. and Executive Engineer was unreasonable and not for showing that the recision of the contract was unreasonable or unjustified. 8. In our view, the question would not be whether the recision of the contract was unreasonable and, therefore, unjustified but whether the recision of the contract in the circumstances of the case was wrongful and illegal. If time was not of the essence of the contract or if the stipulation as to the time fixed for completion had, by reason of waiver, ceased to be applicable then the only course open to the respondent-defendant was to fix some time making it the essence and if within the time so fixed the appellant-plaintiff had failed to complete the work the respondent-defendant could have rescinded the contract. The High Court has taken the view that the contract was rightly rescinded by the respondent-defendant because by about July 21, 1956 (vide letter Ex. 74) the appellant-plaintiff had done work of the value of Rs. 35, 000/- as against the tender value of Rs. 1, 07, 000/-, that is to say, only 1/3rd of the total work had been completed and, therefore, even though time was not of the essence of the contract, the appellant-plaintiff, in the circumstances, could not have completed the work even within the next three months. In our view, this approach adopted by the respondent-defendant and upheld by the High Court is not correct. Long before the expiry of the period of 12 months the appellant-plaintiff had by his letter dated June 6, 1956 (Ex. 68) requested for extension of period of completion up to the end of December, 1956; this request was repeated by another letter dated June 23, 1956 (Ex. 69). May be the reasons or grounds on which the request was made may not have appealed to the Superintending Engineer but some reasonable time making it the essence ought to have been granted. In this behalf it may be stated that the S.D.O. by his letter (Ex. 69) had recommended extension upto December 1956 as sought while by his letter dated June 23, 1956 (Ex. 70) addressed to the Superintending Engineer, the Executive Engineer had recommended that extension of time up to October 30, 1956 may be granted to the appellant-plaintiff with clear intimation that if he failed to complete the work by then, the maximum penalty allowable under cl. 2, namely, 10% of the cost of the work will be inflicted on him, but the recommendation did not receive approval of the Superintending Engineer. It appears that the appellant- plaintiff had an interview with the Superintending Engineer on August 24, 1956 when a written representation (Ex. 99) was handed over and the whole position was sought to be explained to the Superintending Engineer but within three days of the interview by the letter dated August 27, 1956 (Ex. 78) the contract was rescinded and the full security deposit was forfeited to Government. It will thus appear clear that though time was not of the essence of the contract, the respondent-defendant did not fix any further period making time the essence directing the appellant- plaintiff to complete the work within such period; instead it rescinded the contract straightaway by letter dated August 27, 1956. Such recision on the part of the respondent-defendant was clearly illegal and wrongful and thereby the respondent-defendant committed a breach of contract, with the result that there could be no forfeiture of the security deposit.
### Response:
1
### Explanation:
It will be clear from t he aforesaid statement of law that even where the parties have expressly provided that time is of the essence of the contract such a stipulation will have to be read along with other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental, for instance, if the contract were to include causes providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week the work undertaken remains unfinished on the expiry of the time provided in the contract such clauses would be construed as rendering ineffective the express provision relating to the time being of the essence of contractOnce either of the aforesaid conclusions is reached it would be difficult to accept the High Courts finding that the recision of the contract on the part of the respondent- defendant was proper and justified on the basis that the same was neither shown to be mala fide nor unreasonable. It must be observed that it was never the case of the appellant-plaintiff that the recision of the contract on the part of the respondent-defendant was mala fide. Counsel for the appellant-plaintiff further pointed out and, in our view, rightly that the five or six factors, namely,(1) the contract having been given at the thresh old of monsoon, the period of monsoon (4 months) ought not to have been reckoned,(2) absence of proper road and approach to the work site during the rainy season and a couple of months thereafter,(3) unreasonable rejection by the Government Officers of material brought on the site, which material was later on allowed to be used,(4) difficulty in procuring labour due to malarious climate at the site,(5) delay in issuing quarry permit and(6) extra time taken for doing extra work that was entrusted ought to have been taken into account-were put forward by the appellant-plaintiff merely for the purpose of showing that the refusal to extend the time by the Superintending Engineer although recommended by the S.D.O. and Executive Engineer was unreasonable and not for showing that the recision of the contract was unreasonable or unjustified.In our view, the question would not be whether the recision of the contract was unreasonable and, therefore, unjustified but whether the recision of the contract in the circumstances of the case was wrongful and illegal. If time was not of the essence of the contract or if the stipulation as to the time fixed for completion had, by reason of waiver, ceased to be applicable then the only course open to the respondent-defendant was to fix some time making it the essence and if within the time so fixed the appellant-plaintiff had failed to complete the work the respondent-defendant could have rescinded the contract. The High Court has taken the view that the contract was rightly rescinded by the respondent-defendant because by about July 21, 1956 (vide letter Ex. 74) the appellant-plaintiff had done work of the value of Rs. 35, 000/- as against the tender value of Rs. 1, 07, 000/-, that is to say, only 1/3rd of the total work had been completed and, therefore, even though time was not of the essence of the contract, the appellant-plaintiff, in the circumstances, could not have completed the work even within the next three months. In our view, this approach adopted by the respondent-defendant and upheld by the High Court is not correct. Long before the expiry of the period of 12 months the appellant-plaintiff had by his letter dated June 6, 1956 (Ex. 68) requested for extension of period of completion up to the end of December, 1956; this request was repeated by another letter dated June 23, 1956 (Ex. 69). May be the reasons or grounds on which the request was made may not have appealed to the Superintending Engineer but some reasonable time making it the essence ought to have been granted. In this behalf it may be stated that the S.D.O. by his letter (Ex. 69) had recommended extension upto December 1956 as sought while by his letter dated June 23, 1956 (Ex. 70) addressed to the Superintending Engineer, the Executive Engineer had recommended that extension of time up to October 30, 1956 may be granted to the appellant-plaintiff with clear intimation that if he failed to complete the work by then, the maximum penalty allowable under cl. 2, namely, 10% of the cost of the work will be inflicted on him, but the recommendation did not receive approval of the Superintending Engineer. It appears that the appellant- plaintiff had an interview with the Superintending Engineer on August 24, 1956 when a written representation (Ex. 99) was handed over and the whole position was sought to be explained to the Superintending Engineer but within three days of the interview by the letter dated August 27, 1956 (Ex. 78) the contract was rescinded and the full security deposit was forfeited to Government. It will thus appear clear that though time was not of the essence of the contract, the respondent-defendant did not fix any further period making time the essence directing the appellant- plaintiff to complete the work within such period; instead it rescinded the contract straightaway by letter dated August 27, 1956. Such recision on the part of the respondent-defendant was clearly illegal and wrongful and thereby the respondent-defendant committed a breach of contract, with the result that there could be no forfeiture of the security deposit.
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M/S. Chandaji Kubaji & Co. Vs. The State Of Andhra Pradesh | S. 12B of the Act and contended that the view which the tribunal took of S. 12A*(6) (a) was not correct. The High Court drew a distinction between what it called basic facts and evidence in support thereof and said:"There is an essential distinction between a fact and the evidence to establish that fact.".... .... .... ..."Section 12A (6) (a) in our view is not intended to give two opportunities to every assessee to establish his case before a Tribunal. It is really conceived in the interests of the assessee, who was not able to place some facts before the Tribunal at the first instance which would have made a difference in its decision."In the view which the High Court took of S. 12A (6) (a), it held that the applications for review were rightly rejected.5. In the two appeals before us the argument has been that the Tribunal as also the High Court took an erroneous view of the true scope and effect of S. 12A (6) (a) of the Act. Our attention has been drawn to a subsequent Full Bench decision of the same High Court in The State of Andhra v. Sri Arisetty Sriramulu, AIR 1957 Andh Pra 130, and it has been submitted that the view expressed therein is the correct view. In that decision, it was held that the word "facts" in S. 12A (6) (a) may be taken to have been used in the sense in which it is used in law of evidence, that is to say, as including the factum probandum or the principal fact to be proved and the factum probans or the evidentiary facts from which the principal fact follows immediately or by inference; facts may be either "facts in issue" which are the principal matters in dispute or relevant facts which are evidentiary and which directly or by inference, prove or disprove the "facts in issue".6. In the view which we have taken of these two appeals, it is not necessary to discuss at great length the divergent views taken in the High Court of Andhra as to the true scope and effect of S. 12A (6) (a) of the Act. A Division Bench expressed the view that "facts" in the sub-section meant basic facts, that is, facts necessary to sustain a claim, and drew a distinction between such facts and the evidence required to establish them; it further expressed the view that under S. 12A (6) (a) the Tribunal may review its order if any of the basic facts were not present before it when it passed the order, but the sub-section was not meant to give a second opportunity to a party to produce fresh evidence. The Full Bench took a wider view of the sub-section and said that facts referred to in the sub-section might be "facts in issue" or "evidentiary facts". We think that in an appropriate case evidentiary facts may be so interlinked with the facts in issue that they may also fall within the purview of the sub-section. The Full Bench, however, went a step further and said that even if relevant evidentiary facts were intentionally or deliberately withheld or suppressed, the party guilty of such suppression or withholding would still be entitled to ask for a review under S. 12A (6) (a). We say this with great respect, but this is precisely what the section does not permit. The Full Bench said:"The language of S. 12A (6) (a) is so wide and general that it might possibly lead to inconvenient results in that it might enable an assessee to get a further chance of hearing before the Appellate Tribunal on the strength of evidence which he negligently or designedly failed to produce at the first hearing. As the language used in S. 12A (6) (a) is clear and unequivocal and, in our opinion, capable only of one interpretation, we are bound to give effect to it in spite of the possibility of any inconvenience resulting therefrom. The inconvenience, if any, is not to the assessee for whose benefit the provision is intended. In any case the remedy is with the Legislature."It is, we think, doing great violence to language to say that an intentional or deliberate withholding or suppression of evidence in support of a plea or contention or a basic fact urged before the Tribunal, is comprehended within the expression "facts which were not before it (Tribunal) when it passed the order". To so construe the section is to put a premium on deliberate negligence and fraud and amounts to allowing a party to profit from its own wrong.We do not think that such a construction follows from the language used, which is more consistent with view that the provision in S. 12A (6) (a) permits a review when through some oversight, mistake or error the necessary facts, basic or evidentiary, were not present before the Court when it passed the order sought to be reviewed. It is entirely wrong to think that the sub-section permits a party to play hide and seek with a judicial Tribunal; that is to say to raise a fact in issue or evidentiary fact as a plea in support of a claim and at the same time deliberately withhold the evidence in support thereof. Such a situation cannot be said to be one within the meaning of the expression "facts not present before the Tribunal".7. In the appeals before us there was intentional withholding or suppression of evidence. In one case, the materials were not produced on the plea that they were written in Gujrati and nobody was available to instruct counsel in English or Telegu and in the other, on an equally specious plea that the correspondence was mixed up with other records for about two years.These two appeals can be disposed of on this short ground that the appellant was not entitled to ask for review under S. 12A (6) (a) by reason of his own deliberate negligence and intentional withholding of evidence. | 0[ds]6. In the view which we have taken of these two appeals, it is not necessary to discuss at great length the divergent views taken in the High Court of Andhra as to the true scope and effect of S. 12A (6) (a) of the Act. A Division Bench expressed the view that "facts" in the sub-section meant basic facts, that is, facts necessary to sustain a claim, and drew a distinction between such facts and the evidence required to establish them; it further expressed the view that under S. 12A (6) (a) the Tribunal may review its order if any of the basic facts were not present before it when it passed the order, but the sub-section was not meant to give a second opportunity to a party to produce fresh evidence. The Full Bench took a wider view of the sub-section and said that facts referred to in the sub-section might be "facts in issue" or "evidentiary facts". We think that in an appropriate case evidentiary facts may be so interlinked with the facts in issue that they may also fall within the purview of the sub-section. The Full Bench, however, went a step further and said that even if relevant evidentiary facts were intentionally or deliberately withheld or suppressed, the party guilty of such suppression or withholding would still be entitled to ask for a review under S. 12A (6) (a). We say this with great respect, but this is precisely what the section does notis, we think, doing great violence to language to say that an intentional or deliberate withholding or suppression of evidence in support of a plea or contention or a basic fact urged before the Tribunal, is comprehended within the expression "facts which were not before it (Tribunal) when it passed the order". To so construe the section is to put a premium on deliberate negligence and fraud and amounts to allowing a party to profit from its own wrong.We do not think that such a construction follows from the language used, which is more consistent with view that the provision in S. 12A (6) (a) permits a review when through some oversight, mistake or error the necessary facts, basic or evidentiary, were not present before the Court when it passed the order sought to be reviewed. It is entirely wrong to think that the sub-section permits a party to play hide and seek with a judicial Tribunal; that is to say to raise a fact in issue or evidentiary fact as a plea in support of a claim and at the same time deliberately withhold the evidence in support thereof. Such a situation cannot be said to be one within the meaning of the expression "facts not present before the Tribunal".7. In the appeals before us there was intentional withholding or suppression of evidence. In one case, the materials were not produced on the plea that they were written in Gujrati and nobody was available to instruct counsel in English or Telegu and in the other, on an equally specious plea that the correspondence was mixed up with other records for about two years.These two appeals can be disposed of on this short ground that the appellant was not entitled to ask for review under S. 12A (6) (a) by reason of his own deliberate negligence and intentional withholding of evidence. | 0 | 2,123 | 629 | ### Instruction:
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S. 12B of the Act and contended that the view which the tribunal took of S. 12A*(6) (a) was not correct. The High Court drew a distinction between what it called basic facts and evidence in support thereof and said:"There is an essential distinction between a fact and the evidence to establish that fact.".... .... .... ..."Section 12A (6) (a) in our view is not intended to give two opportunities to every assessee to establish his case before a Tribunal. It is really conceived in the interests of the assessee, who was not able to place some facts before the Tribunal at the first instance which would have made a difference in its decision."In the view which the High Court took of S. 12A (6) (a), it held that the applications for review were rightly rejected.5. In the two appeals before us the argument has been that the Tribunal as also the High Court took an erroneous view of the true scope and effect of S. 12A (6) (a) of the Act. Our attention has been drawn to a subsequent Full Bench decision of the same High Court in The State of Andhra v. Sri Arisetty Sriramulu, AIR 1957 Andh Pra 130, and it has been submitted that the view expressed therein is the correct view. In that decision, it was held that the word "facts" in S. 12A (6) (a) may be taken to have been used in the sense in which it is used in law of evidence, that is to say, as including the factum probandum or the principal fact to be proved and the factum probans or the evidentiary facts from which the principal fact follows immediately or by inference; facts may be either "facts in issue" which are the principal matters in dispute or relevant facts which are evidentiary and which directly or by inference, prove or disprove the "facts in issue".6. In the view which we have taken of these two appeals, it is not necessary to discuss at great length the divergent views taken in the High Court of Andhra as to the true scope and effect of S. 12A (6) (a) of the Act. A Division Bench expressed the view that "facts" in the sub-section meant basic facts, that is, facts necessary to sustain a claim, and drew a distinction between such facts and the evidence required to establish them; it further expressed the view that under S. 12A (6) (a) the Tribunal may review its order if any of the basic facts were not present before it when it passed the order, but the sub-section was not meant to give a second opportunity to a party to produce fresh evidence. The Full Bench took a wider view of the sub-section and said that facts referred to in the sub-section might be "facts in issue" or "evidentiary facts". We think that in an appropriate case evidentiary facts may be so interlinked with the facts in issue that they may also fall within the purview of the sub-section. The Full Bench, however, went a step further and said that even if relevant evidentiary facts were intentionally or deliberately withheld or suppressed, the party guilty of such suppression or withholding would still be entitled to ask for a review under S. 12A (6) (a). We say this with great respect, but this is precisely what the section does not permit. The Full Bench said:"The language of S. 12A (6) (a) is so wide and general that it might possibly lead to inconvenient results in that it might enable an assessee to get a further chance of hearing before the Appellate Tribunal on the strength of evidence which he negligently or designedly failed to produce at the first hearing. As the language used in S. 12A (6) (a) is clear and unequivocal and, in our opinion, capable only of one interpretation, we are bound to give effect to it in spite of the possibility of any inconvenience resulting therefrom. The inconvenience, if any, is not to the assessee for whose benefit the provision is intended. In any case the remedy is with the Legislature."It is, we think, doing great violence to language to say that an intentional or deliberate withholding or suppression of evidence in support of a plea or contention or a basic fact urged before the Tribunal, is comprehended within the expression "facts which were not before it (Tribunal) when it passed the order". To so construe the section is to put a premium on deliberate negligence and fraud and amounts to allowing a party to profit from its own wrong.We do not think that such a construction follows from the language used, which is more consistent with view that the provision in S. 12A (6) (a) permits a review when through some oversight, mistake or error the necessary facts, basic or evidentiary, were not present before the Court when it passed the order sought to be reviewed. It is entirely wrong to think that the sub-section permits a party to play hide and seek with a judicial Tribunal; that is to say to raise a fact in issue or evidentiary fact as a plea in support of a claim and at the same time deliberately withhold the evidence in support thereof. Such a situation cannot be said to be one within the meaning of the expression "facts not present before the Tribunal".7. In the appeals before us there was intentional withholding or suppression of evidence. In one case, the materials were not produced on the plea that they were written in Gujrati and nobody was available to instruct counsel in English or Telegu and in the other, on an equally specious plea that the correspondence was mixed up with other records for about two years.These two appeals can be disposed of on this short ground that the appellant was not entitled to ask for review under S. 12A (6) (a) by reason of his own deliberate negligence and intentional withholding of evidence.
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6. In the view which we have taken of these two appeals, it is not necessary to discuss at great length the divergent views taken in the High Court of Andhra as to the true scope and effect of S. 12A (6) (a) of the Act. A Division Bench expressed the view that "facts" in the sub-section meant basic facts, that is, facts necessary to sustain a claim, and drew a distinction between such facts and the evidence required to establish them; it further expressed the view that under S. 12A (6) (a) the Tribunal may review its order if any of the basic facts were not present before it when it passed the order, but the sub-section was not meant to give a second opportunity to a party to produce fresh evidence. The Full Bench took a wider view of the sub-section and said that facts referred to in the sub-section might be "facts in issue" or "evidentiary facts". We think that in an appropriate case evidentiary facts may be so interlinked with the facts in issue that they may also fall within the purview of the sub-section. The Full Bench, however, went a step further and said that even if relevant evidentiary facts were intentionally or deliberately withheld or suppressed, the party guilty of such suppression or withholding would still be entitled to ask for a review under S. 12A (6) (a). We say this with great respect, but this is precisely what the section does notis, we think, doing great violence to language to say that an intentional or deliberate withholding or suppression of evidence in support of a plea or contention or a basic fact urged before the Tribunal, is comprehended within the expression "facts which were not before it (Tribunal) when it passed the order". To so construe the section is to put a premium on deliberate negligence and fraud and amounts to allowing a party to profit from its own wrong.We do not think that such a construction follows from the language used, which is more consistent with view that the provision in S. 12A (6) (a) permits a review when through some oversight, mistake or error the necessary facts, basic or evidentiary, were not present before the Court when it passed the order sought to be reviewed. It is entirely wrong to think that the sub-section permits a party to play hide and seek with a judicial Tribunal; that is to say to raise a fact in issue or evidentiary fact as a plea in support of a claim and at the same time deliberately withhold the evidence in support thereof. Such a situation cannot be said to be one within the meaning of the expression "facts not present before the Tribunal".7. In the appeals before us there was intentional withholding or suppression of evidence. In one case, the materials were not produced on the plea that they were written in Gujrati and nobody was available to instruct counsel in English or Telegu and in the other, on an equally specious plea that the correspondence was mixed up with other records for about two years.These two appeals can be disposed of on this short ground that the appellant was not entitled to ask for review under S. 12A (6) (a) by reason of his own deliberate negligence and intentional withholding of evidence.
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THE STATE OF BIHAR Vs. THE BIHAR SECONDARY TEACHERS STRUGGLE COMMITTEE MUNGER | parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadre. d) The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above. 77. If a pay structure is normally to be evolved keeping in mind factors such as method of recruitment and employers capacity to pay and if the limitations or qualifications to the applicability of the doctrine of equal pay for equal work admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advancesmade by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh 1963 Suppl. 2 SCR 169 and Zabar Singh (1972) 2 SCC 275 , the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources. 78. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider. 79. In our considered view, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. We do not find that the efforts on part of the State Government could be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for consideration. In our view, great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, as indicated above, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve. 80. At the same time, the submission that at the initial stage the Niyojit Teachers are given such emoluments which are lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. In the chart referred to in para 32(c) above, after two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State. | 1[ds]56. At the outset we must note that though the 86 th Constitution Amendment Act was passed in the year 2002, the Article was brought into force on 1.4.2010 i.e. at least after eight years. It is also a matter of record that the RTE Act which was, all the while in contemplation, was enacted in the year 2009 and was also brought into force on 1.4.2010. The developments in that behalf including the historical background leading to the introduction of Article 21A and the enactment of the RTE Act were dealt with in extenso in paragraphs 441 to 461 in the opinion of Bhandari, J in Ashoka Kumar Thakur vs. Union of India (2008) 6 SCC 1. We, therefore, have to see how the State had conducted itself and whether the steps taken by the State were in order to discharge its obligationsIn the year 2002 itself, Scheme known as Sarva Shiksha Abhiyan was introduced at the Central level. In terms of the Scheme, the facilities of education and infrastructure were required to be spread through the length and breadth of the respective States. The steps taken in that behalf, specially in the present matter, indicate that sometime in 2002 more thanone lakh Shiksha Mitras were appointed by the State. These Shiksha Mitras were not part of the regular cadre of Government Teachers, were not appointed through the regular process of selection and their services were engaged on a fixed salary. These Shiksha Mitras, who were outside the regular cadre of teachers, were entrusted with the job of manning schools in the remotest corners of the State. Sometime in 2006, certain decisions were taken by the Cabinet of Ministers, Government of Bihar. The control in respect of appointment of teachers in all nationalized schools and other aspects, which were hithertobefore with the State Government, were given over to various Panchayat Raj institutions. This was in conformity with Articles 243G read with Serial No. 17 of the Eleventh Schedule in respect of Panchayats at the village, intermediate and at district levels and also in terms of Article 243W read with Serial No.13 of the Twelfth Schedule in respect of Nagar Panchayats, Municipal Councils or Municipal Corporations. The decisions taken by the Cabinet were in accord with the constitutional mandate of enabling Panchayat Raj Systems on one hand while on the other, the decision also raised the number of teachers substantially so that national parameters on student:teacher ratio could be achieved by the State. The statistics placed on record show that about 12% children in the State who were outside the schools had to be brought within the stream of education. The decision discernible from the Cabinet Notes was to achieve these objectives. After the decision of the Cabinet, the idea was translated in an appropriate statutory regime and new set of Rules viz. 2016 Rules were put in place. A decision was taken that there would be no further appointments in the cadre of existing teachers viz. Government Teachers and a completely new cadre of teachers named Niyojit Teachers was created. The erstwhile Shiksha Mitras were absorbed in this new cadre of Niyojit Teacher and fresh employments were made at Panchayat/Block levels so that teachers in sufficient numbers could be appointed. The developments indicate that presently about four lakh such teachers have been appointed and the statistics presented by the State, which are reflected in detail in abovenoted paragraph 31, show the advances made by the State in that behalf. It was submitted that the State could thus achieve substantial improvement in the enrolment of students and the results have also seen appreciable rise in literacy rate in the last decade in respect of the State57. We are thus having a situation where the decisions taken by the State as submitted on its behalf, were guided by public interest and societal commitment. The idea to achieve spread of education to the maximum level was attained and in the process the State had, to a great extent, triedto meet with the obligations that it was required to discharge under the provisions of Article 21A read with the RTE Act. What has however been projected on behalf of Niyojit Teachers is that while achieving these objectives, the State ought not to have discriminated against the Niyojit Teachers and should have extended fair treatment to them by ensuring equal pay for equal work. The arguments on behalf of State are that the first objective that had to be accomplished was to have the reach and spread of education to every nook and corner of the State and to satisfy the requirements of having schools and facilities in every neighbourhood as contemplated by the provisions of the RTE Act; and having achieved that objective, the State is now seeking to improve the service conditions and emoluments of the Niyojit Teachers. What therefore emerges is whether the actions on part of the State were justified or whether the Niyojit Teachers are right in their submission that they are entitled to equal pay for equal work58. Before we consider the rival submissions in connection with this issue, it must be mentioned that the cadre of Government Teachers with which parity or equality has been sought is a dying or a vanishing cadre. A conscious decision was taken by the State not to make any appointments in this cadre of Government Teachers and post 2006, with the exception as narrated hereinabove in paragraph 17, all appointments in the State have been in terms of and under the provisions of 2006 Rules. The statistics also show that presently there are about 57,293 elementary teachers in the cadre of Government Teachers and 7,800 Government Teachers at the secondary level which means there are about 66,000 government teachers in the State as against nearly 4 lakh Niyojit Teachers in the State. It is this group of 4 lakhs which is seeking parity with a number which is less than 1/5 th and by very nature which is a dying and vanishing cadre. Out of those 66,000 more than 31,000 were those who came to be appointed as one-time exception. Leaving aside that issue, the fact remains that it is a larger body of more than 4 lakhs which is seeking parity with a dying or a vanishing cadre59. In order to consider the applicability of the doctrine of equal pay for equal work, one of the fundamental aspects to be considered is nature of duties. As was rightly submitted by Mr. Kabil Sibal and Dr. A.M. Singhvi, learned Senior Advocates, the nature of duties performed by Niyojit Teachers are certainly same or similar to those performed by the Government Teachers. As a matter of fact, both the sets of teachers are teaching in the same school and teaching same syllabus. The pointers placed by Dr. Singhvi in his submission as well as the example given by him evidently show that there is no distinction or difference as regards nature of duties performed and responsibilities discharged by the Niyojit Teachers. Some of the Niyojit Teachers have also been acting as Headmasters. However, the Rules in question viz. 2006 Rules clearly indicate that the method of recruitment of Niyojit Teachers was completely different from the one under which Government Teachers were recruited. The Selection Committee contemplated under the provisions of 2006 Rules comprised of officials at the Panchayat or Block levels. The selection was also at local levels and not through Bihar Public Service Commission or Schools Selection Board. The distinction brought out in that behalf by the State in para 13 of its supplementary counter affidavit filed in the High Court clearly shows the difference in mode of recruitment. It is thus clear that the mode of recruitment and the standards of selection were different but the nature of duties performed by the Niyojit Teachers have been absolutely identical. Could there be a distinction between these two streams of teachers. We may, therefore, at this stage see the development of the doctrine of equal pay for equal work and whether it admits of any qualifications or exceptions62. Post Randhir Singh (1982) 1 SCC 618 , there have been number of decisions rendered by this Court and instead of looking into and considering every single decision on the point, we may consider those decisions which themselves had taken into account all the earlier decisions and thenconsidered if there are any limitations or qualifications to the doctrine of equal pay for equal work68. Analysis of the decisions referred to above shows that this Court has accepted following limitations or qualifications to the applicability of the doctrine of equal pay for equali) The doctrine of equal pay for equal work is not an abstract doctrineii) The principle of equal pay for equal work has no mechanical application in every caseiii) The very fact that the person has not gone through the process of recruitment may itself, in certain cases, makes a differenceiv) The application of the principle of equal pay for equal work requires consideration of various dimensions of a given jobv) Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interferevi) Granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authoritiesvii) Equation of posts and salary is a complex matter which should be left to an expert bodyviii) Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequencesix) Before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointmentx) In a given case, mode of selection may be considered as one of the factors which may make a difference71. The qualifications to the applicability of the doctrine of equal pay for equal work which have long been recognised and acknowledged in the decisions referred to above are well established. The decision in Jagjit Singh (2017) 1 SCC 148 again reiterated some of those qualifications. These limitations or qualifications have not been diluted but stand re-inforced74. Heavy reliance was placed on the aforesaid decisions by the learned Attorney General and the learned counsel who appeared for the State. It was submitted that though the teachers in provincialized cadre and the State cadre were doing similar duties and discharging identical responsibilities and though, they were as a matter of fact drawing similar pay and emoluments, the services were considered to be distinct and different. The feature that one of the cadres was to be a dying or vanishing cadre was also present in those cases. It was accepted by this Court that the State was within its Rights to let a particular service or cadre be a dying or vanishing cadre and keep making appointments in other service while maintaining distinct identities of both the services, even when the teachers coming from the both the cadres were doing identical jobs. Though, strictly speaking, those two matters did not involve concept of equal pay for equal work, these cases do point that the State can validly make such distinction or differentiation. The learned Attorney General and the learned counsel appearing for the State were, therefore, justified in placing reliance on these two decisions. It is also evident that the subsequent judgments have not noted the decisions of this Court in Joginder Singh 1963 Suppl. 2 SCR 169 and Zabar SinghFor the purposes of present discussion, we will proceed on the basis that even when the teachers from both the cadres were discharging similar duties and responsibilities, the decision of the State government to maintain different identities of these two cadres was not found objectionable by this Court and further there could be inter se distinctions between these two cadres. It is true that both the cadres were enjoying same pay structure but the submission that the chances of promotion ought to be similar was not accepted by the Court76. We, therefore, have to proceed on the following basic premise:a) It was open to the State to have two distinct cadres namely that of Government Teachers and Niyojit Teachers with Government Teachers being a dying or vanishing cadre. The incidents of these two cadres could be different. The idea by itself would not be discriminatoryb) The pay structure given to the Niyojit Teachers was definitely lower than what was given to Government Teachers but the number of Government Teachers was considerably lower than the number of Niyojit TeachersAs stated above, presently there are just about 66,000 Government Teachers in the State as against nearly 4 lakh Niyojit Teachers. There is scope for further appointment of about 1 lakh teachers which could mean that as against 5 lakh teachers the number of State Teachers would progressively be going downc) The parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadred) The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above77. If a pay structure is normally to be evolved keeping in mind factors such as method of recruitment and employers capacity to pay and if the limitations or qualifications to the applicability of the doctrine of equal pay for equal work admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advancesmade by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh 1963 Suppl. 2 SCR 169 and Zabar Singh(1972) 2 SCC 275, the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources78. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider79. In our considered view, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. We do not find that the efforts on part of the State Government could be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for considerationIn our view, great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, as indicated above, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve80. At the same time, the submission that at the initial stage the Niyojit Teachers are given such emoluments which are lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. In the chart referred to in para 32(c) above, after two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State. | 1 | 39,763 | 3,381 | ### Instruction:
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parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadre. d) The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above. 77. If a pay structure is normally to be evolved keeping in mind factors such as method of recruitment and employers capacity to pay and if the limitations or qualifications to the applicability of the doctrine of equal pay for equal work admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advancesmade by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh 1963 Suppl. 2 SCR 169 and Zabar Singh (1972) 2 SCC 275 , the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources. 78. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider. 79. In our considered view, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. We do not find that the efforts on part of the State Government could be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for consideration. In our view, great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, as indicated above, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve. 80. At the same time, the submission that at the initial stage the Niyojit Teachers are given such emoluments which are lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. In the chart referred to in para 32(c) above, after two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State.
### Response:
1
### Explanation:
would progressively be going downc) The parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadred) The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above77. If a pay structure is normally to be evolved keeping in mind factors such as method of recruitment and employers capacity to pay and if the limitations or qualifications to the applicability of the doctrine of equal pay for equal work admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advancesmade by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh 1963 Suppl. 2 SCR 169 and Zabar Singh(1972) 2 SCC 275, the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources78. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider79. In our considered view, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. We do not find that the efforts on part of the State Government could be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for considerationIn our view, great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, as indicated above, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve80. At the same time, the submission that at the initial stage the Niyojit Teachers are given such emoluments which are lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. In the chart referred to in para 32(c) above, after two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State.
|
Gopi Kanta Sen Vs. Abdul Gaffur & Ors | on the statute book. The situation which arises as a result thereof is that we must deal with the rights of the parties to a suit filed before the Act of 1949 was enacted in terms of such provisions as were clearly applicable thereto. As Abdul Guffur came under the definition of a thika tenant by the Amending Act of 1953 we have to proceed on the basis that he was such a tenant in 1949 with the result that he could claim the benefit of s. 4 of the Act. As already noted, ss. 4 and 5 could not be made to apply to such a suit which in the view expressed, were prospective and not retrospective. Consequently, the absence of a notice under s. 4 would not stand in the way of the landlord nor could his suit be rejected on the ground that he had not applied to the controller. There being no provision for transfer of the proceedings of the suit to the controller, the court had to apply the Act as it found applicable to the facts of the case. It is open to the legislature to impose a bar or a qualification to the rights of the parties by the use of suitable words such as notwithstanding any law to the contrary of in any agreement between the parties. In such a case, a litigant desiring to have relief in a suit must show that the bar does not affect his case. For instance, it is open to the legislature to enact that notwithstanding the rights which a landlord may have against a tenant under the ordinary law of the land, he shall not be entitled to eject the tenant unless he makes out a special ground for eviction, as has been done by s. 3 in this case. Most of the Rent Control Acts all over India contain similar provisions and courts have always held such provisions applicable to pending proceedings. Whereas before the enactment of the Calcutta Thika Tenancy Act, 1949 it was not necessary for the landlord either to allege any of the grounds specified in s. 3 or to prove the existence thereof at the hearing of the suit, he had to establish the existence of such a ground when the suit was heard. The ground need not be specified in the plaint, but nevertheless it had to be established in the suit. In this case, the learned Subordinate Judge, Seventh Court, Alipore who was directed by the remand order of the Calcutta High Court to take fresh evidence, if necessary, was not called upon by any of the parties to hear or record fresh evidence. He however directed his attention to the question as to whether the tenant-appellant was entitled to press into service the provisions of ss. 3 and 4 of the Act. According to him both these sections would apply to the facts of this case. The learned Subordinate Judge seems to have been of the opinion that it was necessary to state some ground under s. 3 on the basis of which the landlord wanted to eject the tenant. Referring to the notice of ejectment served in this case, he said : Not any one of the grounds as enumerated in section 3 was called in aid or could be called in aid. 12. He was not right in his view that the grounds specified in s. 3 could not be called in aid. Section 3 does not purport to lay down that the grounds mentioned therein had got to be stated in the notice of ejectment. All that the section lays down is that ejectment could not be had unless the existence of one of the grounds was proved. Such proof could have been adduced at the trial even if no mention of the grounds had been made before. As section 4 of the Act was prospective only, it could not apply to this case. The decision of the Subordinate Judge is however right inasmuch as the landlord made no attempt to establish any of the grounds for eviction mentioned in s. 3. The decision of the High Court, when the matter was heard for the second time must be upheld on that ground. However, the view expressed by the Calcutta High Court finally hearing the appeal that suits for eviction of thika tenants became infructuous before civil courts after the omission of s. 29 is not correct. The correct view is that ss. 4 and 5 being prospective and as such inapplicable to pre-Act suits, the landlord had to establish the existence of one of the grounds specified in s. 3 in order to succeed. There being no provision for transfer of pending suits and appeals, the court hearing the appeal would have to pass a decree for ejectment even if the defendant was a thika tenant after taking into account s. 3. The tenant could not however ask for any compensation for the structures but could only remove them in terms of s. 108(h) of the Transfer of Property Act. For reasons we cannot speculate upon, the legislature limited the applicability of the Act only to suits and appeals pending on 21st October 1952 and not in February, 1949 i.e. the date of the commencement of the Act of 1949. It may be because before the Ordinance of 1952 on one could establish his rights as a thika tenant in view of the vague definition of thika tenant in the Act of 1949 which led to the decisions of the Calcutta High Court against persons who sought to establish their rights as such. The legislature cannot be taken to have imposed a ban on all pre-Act suits by the circuitous process of ss. 4 and 5 of the Act. It could then have said in clear terms that all pre-Act suits shall be stayed. Clearly that never was the intention of the legislature as section 29 of the Act of 1949 amply demonstrates. | 0[ds]We need not consider the proviso to the section as we are not concerned with the condition mentioned therein. It is to be noted that by the definition of thika tenant, a person could only get the protection of the Ordinance if he could establish that he was holding land under any of the systems expressly mentioned or any other like systemIt is however clear that the benefit of s. 28 was available only if the decree or order for the recovery of possession had been made before the date of commencement of the Act but possession of such holding had not been recovered from him. Section 29 on the other hand was made applicable to all proceedings including proceedings in execution which were pending at the date of the commencement of the Act. No exception was made under s. 29 to cases where possession of the holding had been recovered from the thika tenant. The consequence was that even if the tenant had lost possession but any proceeding even arising from an execution proceeding was pending, the provisions of the Act would be attracted. If any such pending suit or proceeding related to any matter in respect of which the Controller was competent to pass orders, the suit or proceeding would be transferred to the Controller who would deal with it in accordance with the provisions of the Act just as if the Act had been in operation on the date of the commencement of the suit or proceeding. The only qualification was that even if the suit had been filed before the Act but was not disposed of by that date, the landlord had to establish that he was entitled to possession because of the existence of any of the grounds mentioned in s. 3. He was however not to be bound by the provision as to giving a notice under s. 4 which obviously he could not have done because of the passing of the Act after the filing of his suit. As already stated, the Act failed to achieve its objectIt is a general principle of law that statutes are not to operate retrospectively so as to defeat vested rights, but such operation may be given by express enactment or by necessary implication from the language employed. The section shows clearly that when a landlord wishes to eject a thika tenant after the Act had come into force, he had to consider whether any of the grounds in s. 3 was available to him, and if so, he did not have to file a suit but apply to the controller for an order in that behalf10. The language of ss. 4 and 5 leave nor room for doubt that after the coming into force of the Act it was not open to the landlord to file a suit, He could only make an application under s. 5 after giving notice under s. 4. Sections 28 and 29 of the Act which were omitted as a result of the enactment of the Act of 1953 bring this out in clear terms. Section 28 was meant to give relief to a thika tenant in a case where a decree or order for recovery of possession of any holding from a thika tenant had been made before the date of commencement of the Act. It could not apply to the facts of a case like the present where the decree was made after the Act had come into force. Section 29, on the other hand, shows that it was to be applicable to all suits and proceedings which were pending at the date of the commencement of the Act of 1949. In other words, it was to apply to any suit or appeal or any proceeding in execution which was pending on 28th February, 1949. In any such case, the suit or proceeding whether it was pending had to be transferred to the controller. The controller in his turn had to deal with the matter in accordance with the provisions of the Act of 1949 as if it had been in operation on the date of the institution of the suit or proceeding which might be before the commencement of the Act; but he was to deal with allt suits on the basis that no notice under s. 4 was necessary. If the legislature did not want to impose that bar of s. 4 to11. The effect of omission of s. 29 is that we must measure the rights of the parties in the appeal before us on the basis that the section had never been on the statute book. The situation which arises as a result thereof is that we must deal with the rights of the parties to a suit filed before the Act of 1949 was enacted in terms of such provisions as were clearly applicable thereto. As Abdul Guffur came under the definition of a thika tenant by the Amending Act of 1953 we have to proceed on the basis that he was such a tenant in 1949 with the result that he could claim the benefit of s. 4 of the Act. As already noted, ss. 4 and 5 could not be made to apply to such a suit which in the view expressed, were prospective and not retrospective. Consequently, the absence of a notice under s. 4 would not stand in the way of the landlord nor could his suit be rejected on the ground that he had not applied to the controller. There being no provision for transfer of the proceedings of the suit to the controller, the court had to apply the Act as it found applicable to the facts of the case. It is open to the legislature to impose a bar or a qualification to the rights of the parties by the use of suitable words such as notwithstanding any law to the contrary of in any agreement between the parties. In such a case, a litigant desiring to have relief in a suit must show that the bar does not affect his case. For instance, it is open to the legislature to enact that notwithstanding the rights which a landlord may have against a tenant under the ordinary law of the land, he shall not be entitled to eject the tenant unless he makes out a special ground for eviction, as has been done by s. 3 in this case. Most of the Rent Control Acts all over India contain similar provisions and courts have always held such provisions applicable to pending proceedings. Whereas before the enactment of the Calcutta Thika Tenancy Act, 1949 it was not necessary for the landlord either to allege any of the grounds specified in s. 3 or to prove the existence thereof at the hearing of the suit, he had to establish the existence of such a ground when the suit was heard. The ground need not be specified in the plaint, but nevertheless it had to be established in the suit. In this case, the learned Subordinate Judge, Seventh Court, Alipore who was directed by the remand order of the Calcutta High Court to take fresh evidence, if necessary, was not called upon by any of the parties to hear or record fresh evidence. He however directed his attention to the question as to whether thet was entitled to press into service the provisions of ss. 3 and 4 of the Act. According to him both these sections would apply to the facts of this case. The learned Subordinate Judge seems to have been of the opinion that it was necessary to state some ground under s. 3 on the basis of which the landlord wanted to eject the tenant12. He was not right in his view that the grounds specified in s. 3 could not be called in aid. Section 3 does not purport to lay down that the grounds mentioned therein had got to be stated in the notice of ejectment. All that the section lays down is that ejectment could not be had unless the existence of one of the grounds was proved. Such proof could have been adduced at the trial even if no mention of the grounds had been made before. As section 4 of the Act was prospective only, it could not apply to this case. The decision of the Subordinate Judge is however right inasmuch as the landlord made no attempt to establish any of the grounds for eviction mentioned in s. 3. The decision of the High Court, when the matter was heard for the second time must be upheld on that ground. However, the view expressed by the Calcutta High Court finally hearing the appeal that suits for eviction of thika tenants became infructuous before civil courts after the omission of s. 29 is not correct. The correct view is that ss. 4 and 5 being prospective and as such inapplicable tot suits, the landlord had to establish the existence of one of the grounds specified in s. 3 in order to succeed. There being no provision for transfer of pending suits and appeals, the court hearing the appeal would have to pass a decree for ejectment even if the defendant was a thika tenant after taking into account s. 3. The tenant could not however ask for any compensation for the structures but could only remove them in terms of s. 108(h) of the Transfer of Property Act. For reasons we cannot speculate upon, the legislature limited the applicability of the Act only to suits and appeals pending on 21st October 1952 and not in February, 1949 i.e. the date of the commencement of the Act of 1949. It may be because before the Ordinance of 1952 on one could establish his rights as a thika tenant in view of the vague definition of thika tenant in the Act of 1949 which led to the decisions of the Calcutta High Court against persons who sought to establish their rights as such. The legislature cannot be taken to have imposed a ban on allt suits by the circuitous process of ss. 4 and 5 of the Act. It could then have said in clear terms that allt suits shall be stayed. Clearly that never was the intention of the legislature as section 29 of the Act of 1949 amply demonstrates. | 0 | 7,039 | 1,833 | ### 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:
on the statute book. The situation which arises as a result thereof is that we must deal with the rights of the parties to a suit filed before the Act of 1949 was enacted in terms of such provisions as were clearly applicable thereto. As Abdul Guffur came under the definition of a thika tenant by the Amending Act of 1953 we have to proceed on the basis that he was such a tenant in 1949 with the result that he could claim the benefit of s. 4 of the Act. As already noted, ss. 4 and 5 could not be made to apply to such a suit which in the view expressed, were prospective and not retrospective. Consequently, the absence of a notice under s. 4 would not stand in the way of the landlord nor could his suit be rejected on the ground that he had not applied to the controller. There being no provision for transfer of the proceedings of the suit to the controller, the court had to apply the Act as it found applicable to the facts of the case. It is open to the legislature to impose a bar or a qualification to the rights of the parties by the use of suitable words such as notwithstanding any law to the contrary of in any agreement between the parties. In such a case, a litigant desiring to have relief in a suit must show that the bar does not affect his case. For instance, it is open to the legislature to enact that notwithstanding the rights which a landlord may have against a tenant under the ordinary law of the land, he shall not be entitled to eject the tenant unless he makes out a special ground for eviction, as has been done by s. 3 in this case. Most of the Rent Control Acts all over India contain similar provisions and courts have always held such provisions applicable to pending proceedings. Whereas before the enactment of the Calcutta Thika Tenancy Act, 1949 it was not necessary for the landlord either to allege any of the grounds specified in s. 3 or to prove the existence thereof at the hearing of the suit, he had to establish the existence of such a ground when the suit was heard. The ground need not be specified in the plaint, but nevertheless it had to be established in the suit. In this case, the learned Subordinate Judge, Seventh Court, Alipore who was directed by the remand order of the Calcutta High Court to take fresh evidence, if necessary, was not called upon by any of the parties to hear or record fresh evidence. He however directed his attention to the question as to whether the tenant-appellant was entitled to press into service the provisions of ss. 3 and 4 of the Act. According to him both these sections would apply to the facts of this case. The learned Subordinate Judge seems to have been of the opinion that it was necessary to state some ground under s. 3 on the basis of which the landlord wanted to eject the tenant. Referring to the notice of ejectment served in this case, he said : Not any one of the grounds as enumerated in section 3 was called in aid or could be called in aid. 12. He was not right in his view that the grounds specified in s. 3 could not be called in aid. Section 3 does not purport to lay down that the grounds mentioned therein had got to be stated in the notice of ejectment. All that the section lays down is that ejectment could not be had unless the existence of one of the grounds was proved. Such proof could have been adduced at the trial even if no mention of the grounds had been made before. As section 4 of the Act was prospective only, it could not apply to this case. The decision of the Subordinate Judge is however right inasmuch as the landlord made no attempt to establish any of the grounds for eviction mentioned in s. 3. The decision of the High Court, when the matter was heard for the second time must be upheld on that ground. However, the view expressed by the Calcutta High Court finally hearing the appeal that suits for eviction of thika tenants became infructuous before civil courts after the omission of s. 29 is not correct. The correct view is that ss. 4 and 5 being prospective and as such inapplicable to pre-Act suits, the landlord had to establish the existence of one of the grounds specified in s. 3 in order to succeed. There being no provision for transfer of pending suits and appeals, the court hearing the appeal would have to pass a decree for ejectment even if the defendant was a thika tenant after taking into account s. 3. The tenant could not however ask for any compensation for the structures but could only remove them in terms of s. 108(h) of the Transfer of Property Act. For reasons we cannot speculate upon, the legislature limited the applicability of the Act only to suits and appeals pending on 21st October 1952 and not in February, 1949 i.e. the date of the commencement of the Act of 1949. It may be because before the Ordinance of 1952 on one could establish his rights as a thika tenant in view of the vague definition of thika tenant in the Act of 1949 which led to the decisions of the Calcutta High Court against persons who sought to establish their rights as such. The legislature cannot be taken to have imposed a ban on all pre-Act suits by the circuitous process of ss. 4 and 5 of the Act. It could then have said in clear terms that all pre-Act suits shall be stayed. Clearly that never was the intention of the legislature as section 29 of the Act of 1949 amply demonstrates.
### Response:
0
### Explanation:
to impose that bar of s. 4 to11. The effect of omission of s. 29 is that we must measure the rights of the parties in the appeal before us on the basis that the section had never been on the statute book. The situation which arises as a result thereof is that we must deal with the rights of the parties to a suit filed before the Act of 1949 was enacted in terms of such provisions as were clearly applicable thereto. As Abdul Guffur came under the definition of a thika tenant by the Amending Act of 1953 we have to proceed on the basis that he was such a tenant in 1949 with the result that he could claim the benefit of s. 4 of the Act. As already noted, ss. 4 and 5 could not be made to apply to such a suit which in the view expressed, were prospective and not retrospective. Consequently, the absence of a notice under s. 4 would not stand in the way of the landlord nor could his suit be rejected on the ground that he had not applied to the controller. There being no provision for transfer of the proceedings of the suit to the controller, the court had to apply the Act as it found applicable to the facts of the case. It is open to the legislature to impose a bar or a qualification to the rights of the parties by the use of suitable words such as notwithstanding any law to the contrary of in any agreement between the parties. In such a case, a litigant desiring to have relief in a suit must show that the bar does not affect his case. For instance, it is open to the legislature to enact that notwithstanding the rights which a landlord may have against a tenant under the ordinary law of the land, he shall not be entitled to eject the tenant unless he makes out a special ground for eviction, as has been done by s. 3 in this case. Most of the Rent Control Acts all over India contain similar provisions and courts have always held such provisions applicable to pending proceedings. Whereas before the enactment of the Calcutta Thika Tenancy Act, 1949 it was not necessary for the landlord either to allege any of the grounds specified in s. 3 or to prove the existence thereof at the hearing of the suit, he had to establish the existence of such a ground when the suit was heard. The ground need not be specified in the plaint, but nevertheless it had to be established in the suit. In this case, the learned Subordinate Judge, Seventh Court, Alipore who was directed by the remand order of the Calcutta High Court to take fresh evidence, if necessary, was not called upon by any of the parties to hear or record fresh evidence. He however directed his attention to the question as to whether thet was entitled to press into service the provisions of ss. 3 and 4 of the Act. According to him both these sections would apply to the facts of this case. The learned Subordinate Judge seems to have been of the opinion that it was necessary to state some ground under s. 3 on the basis of which the landlord wanted to eject the tenant12. He was not right in his view that the grounds specified in s. 3 could not be called in aid. Section 3 does not purport to lay down that the grounds mentioned therein had got to be stated in the notice of ejectment. All that the section lays down is that ejectment could not be had unless the existence of one of the grounds was proved. Such proof could have been adduced at the trial even if no mention of the grounds had been made before. As section 4 of the Act was prospective only, it could not apply to this case. The decision of the Subordinate Judge is however right inasmuch as the landlord made no attempt to establish any of the grounds for eviction mentioned in s. 3. The decision of the High Court, when the matter was heard for the second time must be upheld on that ground. However, the view expressed by the Calcutta High Court finally hearing the appeal that suits for eviction of thika tenants became infructuous before civil courts after the omission of s. 29 is not correct. The correct view is that ss. 4 and 5 being prospective and as such inapplicable tot suits, the landlord had to establish the existence of one of the grounds specified in s. 3 in order to succeed. There being no provision for transfer of pending suits and appeals, the court hearing the appeal would have to pass a decree for ejectment even if the defendant was a thika tenant after taking into account s. 3. The tenant could not however ask for any compensation for the structures but could only remove them in terms of s. 108(h) of the Transfer of Property Act. For reasons we cannot speculate upon, the legislature limited the applicability of the Act only to suits and appeals pending on 21st October 1952 and not in February, 1949 i.e. the date of the commencement of the Act of 1949. It may be because before the Ordinance of 1952 on one could establish his rights as a thika tenant in view of the vague definition of thika tenant in the Act of 1949 which led to the decisions of the Calcutta High Court against persons who sought to establish their rights as such. The legislature cannot be taken to have imposed a ban on allt suits by the circuitous process of ss. 4 and 5 of the Act. It could then have said in clear terms that allt suits shall be stayed. Clearly that never was the intention of the legislature as section 29 of the Act of 1949 amply demonstrates.
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ARBIND KUMAR Vs. STATE OF JHARKHAND | 1. We have heard learned counsel for the respective parties. Although basic question of law is common in both the appeals, there are some variations in the facts and wherever relevant the said differences will be pointed out. 2. For the sake of convenience, we are taking the facts from C.A. No. 9891 of 2010. The appellant - Arbind Kumar was appointed as a Constable in Dhanbad District on 31st March, 1998. There is no dispute that the provisions in the Police Manual for such appointment were not followed and without inviting applications from the eligible persons, appellants case for appointment was allegedly recommended by the Superintendent of Police, Dhanbad to the Director General cum Inspector General of Police (Welfare) Bihar Patna (DG cum IG), on the ground that father of the appellant was an Assistant Sub Inspector of police and had met with an accident on 2nd August, 1997 and sustained injuries leading to amputation of right leg. It is not in dispute that father of the appellant continued to serve the police force till he superannuated sometime in 2005. 3. So far as the two appellants in the other appeal i.e. C.A. No. 9892 of 2010, are concerned, they claim to be brave persons who helped the police against the naxalites and as a result, both of them were recommended for appointment by the then Superintendent of Police, Dhanbad to the DG cum IG, Bihar, Patna and after their cases were cleared by the DG cum IG, they were appointed as constables on 16th October, 1996. 4. The appellants underwent training and began working as constables. When the fact of such appointments made without adhering to the provisions in the Police Manual came to light, the Home Secretary, Government of Bihar issued a Communication in September, 2000 to issue notice to persons appointed in such manner against law and to cancel such appointments if they were so found. As a result of such exercise, the service of the appellants came to be terminated in 2002 and 2003. The termination was after serving show cause notice on the simple ground that the appointments were made through a process unknown to law and in total disregard of the relevant provisions in the Police Manual. Some controversy was raised as to whether show cause notice was served on the appellant Arbind Kumar but it has been pointed out that his show cause as well as the notice is annexed as Annexure P-6. 5. On behalf of the Arbind Kumar, reliance has been placed on a judgment of this Court in the case of Arun Kumar Rout & Others v. State of Bihar & Others 1998 (9) SCC 71 , whereby this Court in the peculiar facts of that case directed for framing a scheme for absorption/regularisation of the appointees who were working as temporary or adhoc for a long number of years. The judgment itself makes it clear that the order was passed under Article 142 of the Constitution of India with a specific observation that it shall not be treated as a precedent. Hence, we are not persuaded to follow that course of action in the present case. Although the appellants have pleaded that they are mere victims of irregular or illegal action by the concerned police officials who appointed them to the post of Constable without following the procedure prescribed under the Police Manual and hence deserve sympathy, but we are not persuaded to accept such submission. In our considered view, the beneficiaries cannot blame the appointing authority alone and claim that the illegal appointment should be continued in perpetuity. To accept such plea would amount to giving premium to dishonest and illegal acts in matters of public appointments. 6. The appellants were terminated as soon as Authorities came to know of such illegal appointments. They had not completed even ten years so as to perhaps raise a claim for one time consideration for regularisation in terms of judgment of the Constitution Bench in Secretary, State of Karnataka & Others v. Uma Devi and Others, (2006)4 SCC 1 . | 0[ds]The judgment itself makes it clear that the order was passed under Article 142 of the Constitution of India with a specific observation that it shall not be treated as a precedent. Hence, we are not persuaded to follow that course of action in the present case. Although the appellants have pleaded that they are mere victims of irregular or illegal action by the concerned police officials who appointed them to the post of Constable without following the procedure prescribed under the Police Manual and hence deserve sympathy, but we are not persuaded to accept such submission. In our considered view, the beneficiaries cannot blame the appointing authority alone and claim that the illegal appointment should be continued in perpetuity. To accept such plea would amount to giving premium to dishonest and illegal acts in matters of public appointments.6. The appellants were terminated as soon as Authorities came to know of such illegal appointments. They had not completed even ten years so as to perhaps raise a claim for one time consideration for regularisation in terms of judgment of the Constitution Bench in Secretary, State of Karnataka & Others v. Uma Devi and Others, (2006)4 SCC 1 . | 0 | 745 | 217 | ### 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:
1. We have heard learned counsel for the respective parties. Although basic question of law is common in both the appeals, there are some variations in the facts and wherever relevant the said differences will be pointed out. 2. For the sake of convenience, we are taking the facts from C.A. No. 9891 of 2010. The appellant - Arbind Kumar was appointed as a Constable in Dhanbad District on 31st March, 1998. There is no dispute that the provisions in the Police Manual for such appointment were not followed and without inviting applications from the eligible persons, appellants case for appointment was allegedly recommended by the Superintendent of Police, Dhanbad to the Director General cum Inspector General of Police (Welfare) Bihar Patna (DG cum IG), on the ground that father of the appellant was an Assistant Sub Inspector of police and had met with an accident on 2nd August, 1997 and sustained injuries leading to amputation of right leg. It is not in dispute that father of the appellant continued to serve the police force till he superannuated sometime in 2005. 3. So far as the two appellants in the other appeal i.e. C.A. No. 9892 of 2010, are concerned, they claim to be brave persons who helped the police against the naxalites and as a result, both of them were recommended for appointment by the then Superintendent of Police, Dhanbad to the DG cum IG, Bihar, Patna and after their cases were cleared by the DG cum IG, they were appointed as constables on 16th October, 1996. 4. The appellants underwent training and began working as constables. When the fact of such appointments made without adhering to the provisions in the Police Manual came to light, the Home Secretary, Government of Bihar issued a Communication in September, 2000 to issue notice to persons appointed in such manner against law and to cancel such appointments if they were so found. As a result of such exercise, the service of the appellants came to be terminated in 2002 and 2003. The termination was after serving show cause notice on the simple ground that the appointments were made through a process unknown to law and in total disregard of the relevant provisions in the Police Manual. Some controversy was raised as to whether show cause notice was served on the appellant Arbind Kumar but it has been pointed out that his show cause as well as the notice is annexed as Annexure P-6. 5. On behalf of the Arbind Kumar, reliance has been placed on a judgment of this Court in the case of Arun Kumar Rout & Others v. State of Bihar & Others 1998 (9) SCC 71 , whereby this Court in the peculiar facts of that case directed for framing a scheme for absorption/regularisation of the appointees who were working as temporary or adhoc for a long number of years. The judgment itself makes it clear that the order was passed under Article 142 of the Constitution of India with a specific observation that it shall not be treated as a precedent. Hence, we are not persuaded to follow that course of action in the present case. Although the appellants have pleaded that they are mere victims of irregular or illegal action by the concerned police officials who appointed them to the post of Constable without following the procedure prescribed under the Police Manual and hence deserve sympathy, but we are not persuaded to accept such submission. In our considered view, the beneficiaries cannot blame the appointing authority alone and claim that the illegal appointment should be continued in perpetuity. To accept such plea would amount to giving premium to dishonest and illegal acts in matters of public appointments. 6. The appellants were terminated as soon as Authorities came to know of such illegal appointments. They had not completed even ten years so as to perhaps raise a claim for one time consideration for regularisation in terms of judgment of the Constitution Bench in Secretary, State of Karnataka & Others v. Uma Devi and Others, (2006)4 SCC 1 .
### Response:
0
### Explanation:
The judgment itself makes it clear that the order was passed under Article 142 of the Constitution of India with a specific observation that it shall not be treated as a precedent. Hence, we are not persuaded to follow that course of action in the present case. Although the appellants have pleaded that they are mere victims of irregular or illegal action by the concerned police officials who appointed them to the post of Constable without following the procedure prescribed under the Police Manual and hence deserve sympathy, but we are not persuaded to accept such submission. In our considered view, the beneficiaries cannot blame the appointing authority alone and claim that the illegal appointment should be continued in perpetuity. To accept such plea would amount to giving premium to dishonest and illegal acts in matters of public appointments.6. The appellants were terminated as soon as Authorities came to know of such illegal appointments. They had not completed even ten years so as to perhaps raise a claim for one time consideration for regularisation in terms of judgment of the Constitution Bench in Secretary, State of Karnataka & Others v. Uma Devi and Others, (2006)4 SCC 1 .
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PRADEEP S/O RAJKUMAR JAIN Vs. MANGANESE ORE(INDIA) LIMITED & ORS | : 2005 SCC (L&S) 609].) 14. It is also a trite law that only because some documents have not been produced by the management, an adverse inference would not be drawn against the management. (See S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609].) In fact, the said judgment has made reference to the judgment reported in Manager R.B.I. Bangalore v. S. Mani & Ors. (2005) 05 SCC 100 for what is stated in para 13. 10. We do not find, in fact, any reference to Section 106 of the Evidence Act being made in Manager R.B.I. Bangalore (supra). It is true, however, that in the judgment reported in Municipal Council Sujanpur v. Surinder Kumar (2006) 5 SCC 173, there is a reference made to Section 106 of the Evidence Act and in the manner in which it is stated in paragraph 13 it is quoted also in Talwara Cooperative Credit and Service Society Ltd. (supra). There is an earlier judgment of this Court rendered by a Bench of three learned Judges which is reported in Shambhu Nath Goyal v. Bank of Baroda and Others (1983) 4 SCC 491 which has dealt with the issue in the following words: ……………………………………………………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to rake up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman was gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated February 8, 1979 in an industrial dispute which arose so early as in 1965. ………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………. It is, undoubtedly, true when the question arises as to whether the backwages is to be given and as to what is to be the extent of backwages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase (supra). In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal / malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court. 11. As far as the present case is concerned, the reason given by the High Court in the impugned order for denying backwages clearly does not appeal to us. According to the appellant, the appellant has indeed stated that he was not working. The case of the respondent is that he was a Chartered Accountant and that he was indeed earning. The learned counsel for the appellant does not deny that the appelant was indeed earning some amount from doing accountancy related work and he had filed returns under the Income Tax Act. This means as things stand before us, it is a case where the appellant must be treated as not having been without any income at all during the period. He was earning. We have also, however, noticed that there was hardly any worthwhile reason for the respondent to terminate the services. The impugned order itself shows that there was no basis for termination of the services of the appellant. When the appellant was qualified and particularly, when the appellant also has a case that all this was done for the reason that he had taken up certain issues relating to the manner in which the affairs of the respondent was being run, we would think that the High Court was in error in not making appropriate order relating to backwages. 12. As regards the quantum of backwages, there are conflicting claims. According to the respondent, if what is described as performance allowance is not added, 100 per cent of the backwages which the appellant would be entitled to would be in the region of about Rs.66 lakhs. The appellants claim is for over Rs.3 crores. However, he would, after getting instructions from his client state that the appellant may be given a sum of Rs.1.5 crores. He, particularly, points out that this is without taking into consideration the benefits of notional promotion. We are not delving more into this issue as it is stated that litigation relating to right to notational promotion is pending consideration before the High Court. | 1[ds]9. We notice that it is true that in Talwara Cooperative Credit and Service Society Ltd. (supra), this Court has held inter alia:13. This Court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Evidence Act, the burden would be on the workman. The burden, however, is a negative one. If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the employee concerned was in fact gainfully employed. In Surinder Kumar [(2006) 5 SCC 173 : 2006 SCC (L&S) 967] , this Court held : (SCC p. 177, paras 12-14)12. The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250 : JT (2005) 10 SC 344 ] and State of M.P. v. Arjunlal Rajak [(2006) 2 SCC 711 : 2006 SCC (L&S) 429].)13. Equally well settled is the principle that the burden of proof, having regard to the principles analogous to Section 106 of the Evidence Act that he was not gainfully employed, was on the workman. (See RBI v. S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609].)14. It is also a trite law that only because some documents have not been produced by the management, an adverse inference would not be drawn against the management. (See S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609].)In fact, the said judgment has made reference to the judgment reported in Manager R.B.I. Bangalore v. S. Mani & Ors. (2005) 05 SCC 100 for what is stated in para 13.10. We do not find, in fact, any reference to Section 106 of the Evidence Act being made in Manager R.B.I. Bangalore (supra). It is true, however, that in the judgment reported in Municipal Council Sujanpur v. Surinder Kumar (2006) 5 SCC 173, there is a reference made to Section 106 of the Evidence Act and in the manner in which it is stated in paragraph 13 it is quoted also in Talwara Cooperative Credit and Service Society Ltd. (supra).There is an earlier judgment of this Court rendered by a Bench of three learned Judges which is reported in Shambhu Nath Goyal v. Bank of Baroda and Others (1983) 4 SCC 491 which has dealt with the issue in the following words:The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to rake up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman was gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated February 8, 1979 in an industrial dispute which arose so early as in 1965.It is, undoubtedly, true when the question arises as to whether the backwages is to be given and as to what is to be the extent of backwages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase (supra). In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal / malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court.11. As far as the present case is concerned, the reason given by the High Court in the impugned order for denying backwages clearly does not appeal to us. According to the appellant, the appellant has indeed stated that he was not working. The case of the respondent is that he was a Chartered Accountant and that he was indeed earning. The learned counsel for the appellant does not deny that the appelant was indeed earning some amount from doing accountancy related work and he had filed returns under the Income Tax Act. This means as things stand before us, it is a case where the appellant must be treated as not having been without any income at all during the period. He was earning. We have also, however, noticed that there was hardly any worthwhile reason for the respondent to terminate the services. The impugned order itself shows that there was no basis for termination of the services of the appellant. When the appellant was qualified and particularly, when the appellant also has a case that all this was done for the reason that he had taken up certain issues relating to the manner in which the affairs of the respondent was being run, we would think that the High Court was in error in not making appropriate order relating to backwages.12. As regards the quantum of backwages, there are conflicting claims. According to the respondent, if what is described as performance allowance is not added, 100 per cent of the backwages which the appellant would be entitled to would be in the region of about Rs.66 lakhs. The appellants claim is for over Rs.3 crores. However, he would, after getting instructions from his client state that the appellant may be given a sum of Rs.1.5 crores. He, particularly, points out that this is without taking into consideration the benefits of notional promotion.We are not delving more into this issue as it is stated that litigation relating to right to notational promotion is pending consideration before the High Court. | 1 | 3,216 | 1,416 | ### 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:
: 2005 SCC (L&S) 609].) 14. It is also a trite law that only because some documents have not been produced by the management, an adverse inference would not be drawn against the management. (See S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609].) In fact, the said judgment has made reference to the judgment reported in Manager R.B.I. Bangalore v. S. Mani & Ors. (2005) 05 SCC 100 for what is stated in para 13. 10. We do not find, in fact, any reference to Section 106 of the Evidence Act being made in Manager R.B.I. Bangalore (supra). It is true, however, that in the judgment reported in Municipal Council Sujanpur v. Surinder Kumar (2006) 5 SCC 173, there is a reference made to Section 106 of the Evidence Act and in the manner in which it is stated in paragraph 13 it is quoted also in Talwara Cooperative Credit and Service Society Ltd. (supra). There is an earlier judgment of this Court rendered by a Bench of three learned Judges which is reported in Shambhu Nath Goyal v. Bank of Baroda and Others (1983) 4 SCC 491 which has dealt with the issue in the following words: ……………………………………………………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to rake up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman was gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated February 8, 1979 in an industrial dispute which arose so early as in 1965. ………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………. It is, undoubtedly, true when the question arises as to whether the backwages is to be given and as to what is to be the extent of backwages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase (supra). In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal / malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court. 11. As far as the present case is concerned, the reason given by the High Court in the impugned order for denying backwages clearly does not appeal to us. According to the appellant, the appellant has indeed stated that he was not working. The case of the respondent is that he was a Chartered Accountant and that he was indeed earning. The learned counsel for the appellant does not deny that the appelant was indeed earning some amount from doing accountancy related work and he had filed returns under the Income Tax Act. This means as things stand before us, it is a case where the appellant must be treated as not having been without any income at all during the period. He was earning. We have also, however, noticed that there was hardly any worthwhile reason for the respondent to terminate the services. The impugned order itself shows that there was no basis for termination of the services of the appellant. When the appellant was qualified and particularly, when the appellant also has a case that all this was done for the reason that he had taken up certain issues relating to the manner in which the affairs of the respondent was being run, we would think that the High Court was in error in not making appropriate order relating to backwages. 12. As regards the quantum of backwages, there are conflicting claims. According to the respondent, if what is described as performance allowance is not added, 100 per cent of the backwages which the appellant would be entitled to would be in the region of about Rs.66 lakhs. The appellants claim is for over Rs.3 crores. However, he would, after getting instructions from his client state that the appellant may be given a sum of Rs.1.5 crores. He, particularly, points out that this is without taking into consideration the benefits of notional promotion. We are not delving more into this issue as it is stated that litigation relating to right to notational promotion is pending consideration before the High Court.
### Response:
1
### Explanation:
(See RBI v. S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609].)14. It is also a trite law that only because some documents have not been produced by the management, an adverse inference would not be drawn against the management. (See S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609].)In fact, the said judgment has made reference to the judgment reported in Manager R.B.I. Bangalore v. S. Mani & Ors. (2005) 05 SCC 100 for what is stated in para 13.10. We do not find, in fact, any reference to Section 106 of the Evidence Act being made in Manager R.B.I. Bangalore (supra). It is true, however, that in the judgment reported in Municipal Council Sujanpur v. Surinder Kumar (2006) 5 SCC 173, there is a reference made to Section 106 of the Evidence Act and in the manner in which it is stated in paragraph 13 it is quoted also in Talwara Cooperative Credit and Service Society Ltd. (supra).There is an earlier judgment of this Court rendered by a Bench of three learned Judges which is reported in Shambhu Nath Goyal v. Bank of Baroda and Others (1983) 4 SCC 491 which has dealt with the issue in the following words:The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to rake up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman was gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated February 8, 1979 in an industrial dispute which arose so early as in 1965.It is, undoubtedly, true when the question arises as to whether the backwages is to be given and as to what is to be the extent of backwages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase (supra). In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal / malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court.11. As far as the present case is concerned, the reason given by the High Court in the impugned order for denying backwages clearly does not appeal to us. According to the appellant, the appellant has indeed stated that he was not working. The case of the respondent is that he was a Chartered Accountant and that he was indeed earning. The learned counsel for the appellant does not deny that the appelant was indeed earning some amount from doing accountancy related work and he had filed returns under the Income Tax Act. This means as things stand before us, it is a case where the appellant must be treated as not having been without any income at all during the period. He was earning. We have also, however, noticed that there was hardly any worthwhile reason for the respondent to terminate the services. The impugned order itself shows that there was no basis for termination of the services of the appellant. When the appellant was qualified and particularly, when the appellant also has a case that all this was done for the reason that he had taken up certain issues relating to the manner in which the affairs of the respondent was being run, we would think that the High Court was in error in not making appropriate order relating to backwages.12. As regards the quantum of backwages, there are conflicting claims. According to the respondent, if what is described as performance allowance is not added, 100 per cent of the backwages which the appellant would be entitled to would be in the region of about Rs.66 lakhs. The appellants claim is for over Rs.3 crores. However, he would, after getting instructions from his client state that the appellant may be given a sum of Rs.1.5 crores. He, particularly, points out that this is without taking into consideration the benefits of notional promotion.We are not delving more into this issue as it is stated that litigation relating to right to notational promotion is pending consideration before the High Court.
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M/S. Komal Construction & Others Vs. The State of Maharashtra, Through Its Principal Secretary, Public Works Department & Others | Clause 3.7.10 reads as under 3.7.10. Joint Venture.(i) In case of Joint Venture the scanned and digitally signed copy of registered partnership deed shall be submitted in Envelope No.1.(ii) Two or more contractors of any class may combine and tender for a work costing to the amounts upto which each individual contractor or the higher of two limits if they are of different categories are empowered to tender as per the original registration provided.(i) The combination is of the contractor as a whole and not individual partners and,(ii) They draw a registered partnership deed and submit a copy thereof to the authority at the time of purchase of the tender forms.Whenever the advantage of such combination of two or more contractors is to be taken for quoting for a work, the registered partnership deed should be irrevocable till the completion of the work for which they have combined and till all the liabilities there of are liquidated and the share of contractor of higher category should not be less than 50%. Further, the percentage share of the contractor of the lower category in such a partnership/combination should not be more than this limit of eligibility to quote for works divided by the estimated cost of work put to tender (i.e. when such a percentage is applied to the cost of the work, his share of cost should not exceed his own eligibility limit of tendering for works.) The lead partners shall meet not less than 50% of all qualifying without like annual turn over, single work, quantities of items and bid capacity of above. The Joint Venture must collectively satisfy the criteria of para annual turn over single work, quantities of items and Bid capacity above. The experience of the other Joint partner shall be considered if it is not less than 30% of the qualifying criteria like annual turn over, single work, quantities of items and Bid capacity of above.Language of this Clause therefore clearly shows that a registered Partnership Deed is must and a Joint Venture with unregistered Partnership Deed is not legally recognized. Respondents wanted to be certain that in case of any legal dispute, Partnership Firm must be registered and therefore, demanded its registration certificate. In case of a Joint Venture also, to get rid of the technical lacunae or defences, they envisage that a Partnership amongst its constituents should be registered. Petitioners before us do not have registration certificate, either as a Firm or then as a Joint Venture. They do not have even a registered agreement.19. This condition of eligibility which has got bearing on relationship of parties and legal implications flowing therefrom, clearly show that it cannot be viewed as a ancillary condition. Though contractor has been defined widely to include even a unincorporated company, in case of Firm or Joint Venture, there is insistence on registration of a Firm or of a agreement. This insistence by the respondents cannot be said to be misconceived or arbitrary. Petitioners do not satisfy this condition.20. Equipments to be made available by petitioners are dealt with in paragraph no.3.7.5. Chart in that clause contains names of 12 equipments/machineries. In last column number thereof or capacity of such machine is stipulated. Thereafter in bracket word own appears against column nos. 1 to 4, 6 to 8 and 10 to 12. Against entry no.9, dealing with Steel centering plate, there is no mention. Words Own/Hire are used only against entry no.5 i.e. Rotavator for GSB Mixing. Thus, when entire chart is construed in this backdrop, it only permits Rotavator required for GSB mixing to be hired. Rest of the equipments must be owned by the tenderer. Clause 3.6 (ix) require tenderer to give list of modern machinery and plants immediately available with it for use on tendered work as also list of machinery proposed to be used therefor, but, not immediately available and manner in which it is proposed to be procured. This therefore shows precaution taken by the respondents to obtain in different list of machineries, which can be immediately used by the tenderer. Simultaneously, he is also obliged to give a list of machineries which he can make available later on, but, then he has to disclose how he proposes to procure it. Petitioners, therefore, must show that Self-propelled Mechanical Sprayer owned by them. It is available to them at Pune and there they have taken it on hire from M/s. Shree Associates, vide agreement dated 09.03.2015. This does not meet the stipulation in the tender document which is an essential condition.21. In so far as the Rotavator is concerned, though the petitioners claim that they have offered a better machine, according to the respondents, said machine i.e. Batching Plant is not substitute for Rotavator. Respondent no.5 has come up with a specific case in this respect in paragraph no.7. This assertion on these lines in affidavit are not rebutted by the petitioners. Even otherwise, burden to show that Batching Plant is a better machine was upon the petitioners and they have failed to discharge the same.22. Insistence that Joint Venture must be registered in notice inviting tender or then insistence upon ownership of machinery is not shown to be arbitrary. When respondents permit only Rotavator to be made available on hire, in absence of express challenge to requirement of ownership, the contention that ownership of other machineries should also be viewed as only an ancillary requirement, cannot be accepted. Respondents can always take necessary precaution and prescribe safeguards to protect its own interest in contract matters. It is in absolute discretion of tender inviting authority to formulate reasonable terms and conditions in advance, and to act accordingly uniformly. A tenderer can complain of the deviation, arbitrariness or discrimination. In this situation, in the light of the arguments advanced, we find that the respondent nos. 1 to 4 have rightly disqualified the petitioners for first three reasons on 29.06.2015. There is no jurisdictional error or perversity. No case is made out warranting intervention in writ jurisdiction. | 0[ds]Language of this Clause therefore clearly shows that a registered Partnership Deed is must and a Joint Venture with unregistered Partnership Deed is not legally recognized. Respondents wanted to be certain that in case of any legal dispute, Partnership Firm must be registered and therefore, demanded its registration certificate. In case of a Joint Venture also, to get rid of the technical lacunae or defences, they envisage that a Partnership amongst its constituents should be registered. Petitioners before us do not have registration certificate, either as a Firm or then as a Joint Venture. They do not have even a registered agreement.19. This condition of eligibility which has got bearing on relationship of parties and legal implications flowing therefrom, clearly show that it cannot be viewed as a ancillary condition. Though contractor has been defined widely to include even a unincorporated company, in case of Firm or Joint Venture, there is insistence on registration of a Firm or of a agreement. This insistence by the respondents cannot be said to be misconceived or arbitrary. Petitioners do not satisfy this condition.20. Equipments to be made available by petitioners are dealt with in paragraph no.3.7.5. Chart in that clause contains names of 12 equipments/machineries. In last column number thereof or capacity of such machine is stipulated. Thereafter in bracket word own appears against column nos. 1 to 4, 6 to 8 and 10 to 12. Against entry no.9, dealing with Steel centering plate, there is no mention. Words Own/Hire are used only against entry no.5 i.e. Rotavator for GSB Mixing. Thus, when entire chart is construed in this backdrop, it only permits Rotavator required for GSB mixing to be hired. Rest of the equipments must be owned by the tenderer. Clause 3.6 (ix) require tenderer to give list of modern machinery and plants immediately available with it for use on tendered work as also list of machinery proposed to be used therefor, but, not immediately available and manner in which it is proposed to be procured. This therefore shows precaution taken by the respondents to obtain in different list of machineries, which can be immediately used by the tenderer. Simultaneously, he is also obliged to give a list of machineries which he can make available later on, but, then he has to disclose how he proposes to procure it. Petitioners, therefore, must show thatMechanical Sprayer owned by them. It is available to them at Pune and there they have taken it on hire from M/s. Shree Associates, vide agreement dated 09.03.2015. This does not meet the stipulation in the tender document which is an essential condition.21. In so far as the Rotavator is concerned, though the petitioners claim that they have offered a better machine, according to the respondents, said machine i.e. Batching Plant is not substitute for Rotavator. Respondent no.5 has come up with a specific case in this respect in paragraph no.7. This assertion on these lines in affidavit are not rebutted by the petitioners. Even otherwise, burden to show that Batching Plant is a better machine was upon the petitioners and they have failed to discharge the same.22. Insistence that Joint Venture must be registered in notice inviting tender or then insistence upon ownership of machinery is not shown to be arbitrary. When respondents permit only Rotavator to be made available on hire, in absence of express challenge to requirement of ownership, the contention that ownership of other machineries should also be viewed as only an ancillary requirement, cannot be accepted. Respondents can always take necessary precaution and prescribe safeguards to protect its own interest in contract matters. It is in absolute discretion of tender inviting authority to formulate reasonable terms and conditions in advance, and to act accordingly uniformly. A tenderer can complain of the deviation, arbitrariness or discrimination. In this situation, in the light of the arguments advanced, we find that the respondent nos. 1 to 4 have rightly disqualified the petitioners for first three reasons on 29.06.2015. There is no jurisdictional error or perversity. No case is made out warranting intervention in writ jurisdiction. | 0 | 3,815 | 760 | ### Instruction:
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Clause 3.7.10 reads as under 3.7.10. Joint Venture.(i) In case of Joint Venture the scanned and digitally signed copy of registered partnership deed shall be submitted in Envelope No.1.(ii) Two or more contractors of any class may combine and tender for a work costing to the amounts upto which each individual contractor or the higher of two limits if they are of different categories are empowered to tender as per the original registration provided.(i) The combination is of the contractor as a whole and not individual partners and,(ii) They draw a registered partnership deed and submit a copy thereof to the authority at the time of purchase of the tender forms.Whenever the advantage of such combination of two or more contractors is to be taken for quoting for a work, the registered partnership deed should be irrevocable till the completion of the work for which they have combined and till all the liabilities there of are liquidated and the share of contractor of higher category should not be less than 50%. Further, the percentage share of the contractor of the lower category in such a partnership/combination should not be more than this limit of eligibility to quote for works divided by the estimated cost of work put to tender (i.e. when such a percentage is applied to the cost of the work, his share of cost should not exceed his own eligibility limit of tendering for works.) The lead partners shall meet not less than 50% of all qualifying without like annual turn over, single work, quantities of items and bid capacity of above. The Joint Venture must collectively satisfy the criteria of para annual turn over single work, quantities of items and Bid capacity above. The experience of the other Joint partner shall be considered if it is not less than 30% of the qualifying criteria like annual turn over, single work, quantities of items and Bid capacity of above.Language of this Clause therefore clearly shows that a registered Partnership Deed is must and a Joint Venture with unregistered Partnership Deed is not legally recognized. Respondents wanted to be certain that in case of any legal dispute, Partnership Firm must be registered and therefore, demanded its registration certificate. In case of a Joint Venture also, to get rid of the technical lacunae or defences, they envisage that a Partnership amongst its constituents should be registered. Petitioners before us do not have registration certificate, either as a Firm or then as a Joint Venture. They do not have even a registered agreement.19. This condition of eligibility which has got bearing on relationship of parties and legal implications flowing therefrom, clearly show that it cannot be viewed as a ancillary condition. Though contractor has been defined widely to include even a unincorporated company, in case of Firm or Joint Venture, there is insistence on registration of a Firm or of a agreement. This insistence by the respondents cannot be said to be misconceived or arbitrary. Petitioners do not satisfy this condition.20. Equipments to be made available by petitioners are dealt with in paragraph no.3.7.5. Chart in that clause contains names of 12 equipments/machineries. In last column number thereof or capacity of such machine is stipulated. Thereafter in bracket word own appears against column nos. 1 to 4, 6 to 8 and 10 to 12. Against entry no.9, dealing with Steel centering plate, there is no mention. Words Own/Hire are used only against entry no.5 i.e. Rotavator for GSB Mixing. Thus, when entire chart is construed in this backdrop, it only permits Rotavator required for GSB mixing to be hired. Rest of the equipments must be owned by the tenderer. Clause 3.6 (ix) require tenderer to give list of modern machinery and plants immediately available with it for use on tendered work as also list of machinery proposed to be used therefor, but, not immediately available and manner in which it is proposed to be procured. This therefore shows precaution taken by the respondents to obtain in different list of machineries, which can be immediately used by the tenderer. Simultaneously, he is also obliged to give a list of machineries which he can make available later on, but, then he has to disclose how he proposes to procure it. Petitioners, therefore, must show that Self-propelled Mechanical Sprayer owned by them. It is available to them at Pune and there they have taken it on hire from M/s. Shree Associates, vide agreement dated 09.03.2015. This does not meet the stipulation in the tender document which is an essential condition.21. In so far as the Rotavator is concerned, though the petitioners claim that they have offered a better machine, according to the respondents, said machine i.e. Batching Plant is not substitute for Rotavator. Respondent no.5 has come up with a specific case in this respect in paragraph no.7. This assertion on these lines in affidavit are not rebutted by the petitioners. Even otherwise, burden to show that Batching Plant is a better machine was upon the petitioners and they have failed to discharge the same.22. Insistence that Joint Venture must be registered in notice inviting tender or then insistence upon ownership of machinery is not shown to be arbitrary. When respondents permit only Rotavator to be made available on hire, in absence of express challenge to requirement of ownership, the contention that ownership of other machineries should also be viewed as only an ancillary requirement, cannot be accepted. Respondents can always take necessary precaution and prescribe safeguards to protect its own interest in contract matters. It is in absolute discretion of tender inviting authority to formulate reasonable terms and conditions in advance, and to act accordingly uniformly. A tenderer can complain of the deviation, arbitrariness or discrimination. In this situation, in the light of the arguments advanced, we find that the respondent nos. 1 to 4 have rightly disqualified the petitioners for first three reasons on 29.06.2015. There is no jurisdictional error or perversity. No case is made out warranting intervention in writ jurisdiction.
### Response:
0
### Explanation:
Language of this Clause therefore clearly shows that a registered Partnership Deed is must and a Joint Venture with unregistered Partnership Deed is not legally recognized. Respondents wanted to be certain that in case of any legal dispute, Partnership Firm must be registered and therefore, demanded its registration certificate. In case of a Joint Venture also, to get rid of the technical lacunae or defences, they envisage that a Partnership amongst its constituents should be registered. Petitioners before us do not have registration certificate, either as a Firm or then as a Joint Venture. They do not have even a registered agreement.19. This condition of eligibility which has got bearing on relationship of parties and legal implications flowing therefrom, clearly show that it cannot be viewed as a ancillary condition. Though contractor has been defined widely to include even a unincorporated company, in case of Firm or Joint Venture, there is insistence on registration of a Firm or of a agreement. This insistence by the respondents cannot be said to be misconceived or arbitrary. Petitioners do not satisfy this condition.20. Equipments to be made available by petitioners are dealt with in paragraph no.3.7.5. Chart in that clause contains names of 12 equipments/machineries. In last column number thereof or capacity of such machine is stipulated. Thereafter in bracket word own appears against column nos. 1 to 4, 6 to 8 and 10 to 12. Against entry no.9, dealing with Steel centering plate, there is no mention. Words Own/Hire are used only against entry no.5 i.e. Rotavator for GSB Mixing. Thus, when entire chart is construed in this backdrop, it only permits Rotavator required for GSB mixing to be hired. Rest of the equipments must be owned by the tenderer. Clause 3.6 (ix) require tenderer to give list of modern machinery and plants immediately available with it for use on tendered work as also list of machinery proposed to be used therefor, but, not immediately available and manner in which it is proposed to be procured. This therefore shows precaution taken by the respondents to obtain in different list of machineries, which can be immediately used by the tenderer. Simultaneously, he is also obliged to give a list of machineries which he can make available later on, but, then he has to disclose how he proposes to procure it. Petitioners, therefore, must show thatMechanical Sprayer owned by them. It is available to them at Pune and there they have taken it on hire from M/s. Shree Associates, vide agreement dated 09.03.2015. This does not meet the stipulation in the tender document which is an essential condition.21. In so far as the Rotavator is concerned, though the petitioners claim that they have offered a better machine, according to the respondents, said machine i.e. Batching Plant is not substitute for Rotavator. Respondent no.5 has come up with a specific case in this respect in paragraph no.7. This assertion on these lines in affidavit are not rebutted by the petitioners. Even otherwise, burden to show that Batching Plant is a better machine was upon the petitioners and they have failed to discharge the same.22. Insistence that Joint Venture must be registered in notice inviting tender or then insistence upon ownership of machinery is not shown to be arbitrary. When respondents permit only Rotavator to be made available on hire, in absence of express challenge to requirement of ownership, the contention that ownership of other machineries should also be viewed as only an ancillary requirement, cannot be accepted. Respondents can always take necessary precaution and prescribe safeguards to protect its own interest in contract matters. It is in absolute discretion of tender inviting authority to formulate reasonable terms and conditions in advance, and to act accordingly uniformly. A tenderer can complain of the deviation, arbitrariness or discrimination. In this situation, in the light of the arguments advanced, we find that the respondent nos. 1 to 4 have rightly disqualified the petitioners for first three reasons on 29.06.2015. There is no jurisdictional error or perversity. No case is made out warranting intervention in writ jurisdiction.
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Maharaja Amrinder Singh Vs. Comnr. Of Wealth Tax,Patiala | the date of establishment of the National Tax Tribunal appeal before the High Court.(1A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in sub-section (1), if it is satisfied that there was sufficient cause for not filing the same within that period.(2) An appeal shall lie to the High Court before the date of establishment the National Tax Tribunal from every order passed in appeal by the Appellate Tribunal, under sub-section (1) of section 24 only if the High Court is satisfied that the case involves a substantial question of law.(3) In an appeal under this section, the Memorandum of Appeal shall precisely state the substantial question of law involved in the appeal.(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.(5) The appeal shall be heard only on the question so formulated and the respondent shall, at the time of hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.(6) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.(7) The Assessing Officer shall give effect to the order of the High Court on the basis of a certified copy of judgment delivered under sub-section (6).(8) The Provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to appeals to High Court shall, so far as may be, apply in the case of appeals under this section."7. Section 27-A of the Act, which provides a remedy of appeal to the High Court against the order of the Income Tax Appellate Tribunal, is modeled on existing Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). Indeed, as would be clear, the language of Section 27-A of the Act and Section 100 of the Code is identical. Both the Sections are, therefore, in pari materia. It is a case where Section 100 of the Code is bodily lifted from the Code and incorporated in Section 27-A of the Act with minor additions and alterations by following the principle of "legislation by incorporation".8. A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., 2001(3) R.C.R.(Civil) 243 : (2001) 3 SCC 179 had examined the scope of Section 100 of the Code of the Civil procedure, 1908 (hereinafter referred to as "the Code"). Justice R.C. Lahoti (as His Lordship then was) speaking for the Bench laid down the following proposition of law in Para 9:"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty case on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, 1997(3) R.C.R.(Civil) 197 : (1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswami, 1997(1) R.C.R.(Rent) 370 : 1997(2) R.C.R.(Civil) 1 : (1997) 4 SCC 713 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, 1999(2) R.C.R.(Civil) 587 : (1999) 3 SCC 722.) "9. His Lordship then in Paras 10 to 14 succinctly explained the meaning of the words "substantial question of law" and "question of law" and held that in order to admit the second appeal, what is required to be made out by the appellant being sine qua non for exercise of powers under Section 100 of the Code, is existence of "substantial question of law" arising in the case so as to empower the High Court to admit the appeal for final hearing by formulating such question. In the absence of any substantial question of law arising in appeal, the same merits dismissal in limine on the ground that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code.10. In our considered opinion, the interpretation made by this Court of Section 100 in Santosh Hazaris Case (supra), would equally apply to Section 27-A of the Act because firstly, both Sections provide a remedy of appeal to the High Court; Secondly, both Sections are identically worded and in pari materia; Thirdly, Section 27-A is enacted by following the principle of "legislation by incorporation"; fourthly, Section 100 is bodily lifted from the Code and incorporated as Section 27-A in the Act; and lastly, since both Sections are akin to each other in all respects, the appeal filed under Section 27-A of the Act has to be decided like a second appeal under Section 100 of the Code.11. Now coming to the facts of the case, we find that the High Court proceeded to decide the appeals without formulating the substantial question(s) of law. Indeed, the High Court did not make any effort to find out as to whether the appeals involved any substantial question(s) of law and, if so, which is/are that question(s) and nor it formulated such question(s), if in its opinion, really arose in the appeals. The High Court failed to see that it had jurisdiction to decide the appeals only on the question(s) so formulated and not beyond it. [Section 27(5)].12. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned orders are not legally sustainable and thus liable to be set aside. | 1[ds]Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside of the impugned orders of the High Court remand the case to the High Court for deciding the appeals afresh on merits after formulating the substantial questions of law, if it so arises in theas would be clear, the language of Sectionof the Act and Section 100 of the Code is identical. Both the Sections are, therefore, in pari materia. It is a case where Section 100 of the Code is bodily lifted from the Code and incorporated in Sectionof the Act with minor additions and alterations by following the principle of "legislation by incorporation".In our considered opinion, the interpretation made by this Court of Section 100 in Santosh Hazaris Case (supra), would equally apply to Sectionof the Act because firstly, both Sections provide a remedy of appeal to the High Court; Secondly, both Sections are identically worded and in pari materia; Thirdly, Sectionis enacted by following the principle of "legislation by incorporation"; fourthly, Section 100 is bodily lifted from the Code and incorporated as Sectionin the Act; and lastly, since both Sections are akin to each other in all respects, the appeal filed under Sectionof the Act has to be decided like a second appeal under Section 100 of the Code.11. Now coming to the facts of the case, we find that the High Court proceeded to decide the appeals without formulating the substantial question(s) of law. Indeed, the High Court did not make any effort to find out as to whether the appeals involved any substantial question(s) of law and, if so, which is/are that question(s) and nor it formulated such question(s), if in its opinion, really arose in the appeals. The High Court failed to see that it had jurisdiction to decide the appeals only on the question(s) so formulated and not beyond it. [Section 27(5)].12. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned orders are not legally sustainable and thus liable to be set aside. | 1 | 1,695 | 435 | ### 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 date of establishment of the National Tax Tribunal appeal before the High Court.(1A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in sub-section (1), if it is satisfied that there was sufficient cause for not filing the same within that period.(2) An appeal shall lie to the High Court before the date of establishment the National Tax Tribunal from every order passed in appeal by the Appellate Tribunal, under sub-section (1) of section 24 only if the High Court is satisfied that the case involves a substantial question of law.(3) In an appeal under this section, the Memorandum of Appeal shall precisely state the substantial question of law involved in the appeal.(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.(5) The appeal shall be heard only on the question so formulated and the respondent shall, at the time of hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.(6) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.(7) The Assessing Officer shall give effect to the order of the High Court on the basis of a certified copy of judgment delivered under sub-section (6).(8) The Provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to appeals to High Court shall, so far as may be, apply in the case of appeals under this section."7. Section 27-A of the Act, which provides a remedy of appeal to the High Court against the order of the Income Tax Appellate Tribunal, is modeled on existing Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). Indeed, as would be clear, the language of Section 27-A of the Act and Section 100 of the Code is identical. Both the Sections are, therefore, in pari materia. It is a case where Section 100 of the Code is bodily lifted from the Code and incorporated in Section 27-A of the Act with minor additions and alterations by following the principle of "legislation by incorporation".8. A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., 2001(3) R.C.R.(Civil) 243 : (2001) 3 SCC 179 had examined the scope of Section 100 of the Code of the Civil procedure, 1908 (hereinafter referred to as "the Code"). Justice R.C. Lahoti (as His Lordship then was) speaking for the Bench laid down the following proposition of law in Para 9:"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty case on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, 1997(3) R.C.R.(Civil) 197 : (1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswami, 1997(1) R.C.R.(Rent) 370 : 1997(2) R.C.R.(Civil) 1 : (1997) 4 SCC 713 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, 1999(2) R.C.R.(Civil) 587 : (1999) 3 SCC 722.) "9. His Lordship then in Paras 10 to 14 succinctly explained the meaning of the words "substantial question of law" and "question of law" and held that in order to admit the second appeal, what is required to be made out by the appellant being sine qua non for exercise of powers under Section 100 of the Code, is existence of "substantial question of law" arising in the case so as to empower the High Court to admit the appeal for final hearing by formulating such question. In the absence of any substantial question of law arising in appeal, the same merits dismissal in limine on the ground that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code.10. In our considered opinion, the interpretation made by this Court of Section 100 in Santosh Hazaris Case (supra), would equally apply to Section 27-A of the Act because firstly, both Sections provide a remedy of appeal to the High Court; Secondly, both Sections are identically worded and in pari materia; Thirdly, Section 27-A is enacted by following the principle of "legislation by incorporation"; fourthly, Section 100 is bodily lifted from the Code and incorporated as Section 27-A in the Act; and lastly, since both Sections are akin to each other in all respects, the appeal filed under Section 27-A of the Act has to be decided like a second appeal under Section 100 of the Code.11. Now coming to the facts of the case, we find that the High Court proceeded to decide the appeals without formulating the substantial question(s) of law. Indeed, the High Court did not make any effort to find out as to whether the appeals involved any substantial question(s) of law and, if so, which is/are that question(s) and nor it formulated such question(s), if in its opinion, really arose in the appeals. The High Court failed to see that it had jurisdiction to decide the appeals only on the question(s) so formulated and not beyond it. [Section 27(5)].12. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned orders are not legally sustainable and thus liable to be set aside.
### Response:
1
### Explanation:
Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside of the impugned orders of the High Court remand the case to the High Court for deciding the appeals afresh on merits after formulating the substantial questions of law, if it so arises in theas would be clear, the language of Sectionof the Act and Section 100 of the Code is identical. Both the Sections are, therefore, in pari materia. It is a case where Section 100 of the Code is bodily lifted from the Code and incorporated in Sectionof the Act with minor additions and alterations by following the principle of "legislation by incorporation".In our considered opinion, the interpretation made by this Court of Section 100 in Santosh Hazaris Case (supra), would equally apply to Sectionof the Act because firstly, both Sections provide a remedy of appeal to the High Court; Secondly, both Sections are identically worded and in pari materia; Thirdly, Sectionis enacted by following the principle of "legislation by incorporation"; fourthly, Section 100 is bodily lifted from the Code and incorporated as Sectionin the Act; and lastly, since both Sections are akin to each other in all respects, the appeal filed under Sectionof the Act has to be decided like a second appeal under Section 100 of the Code.11. Now coming to the facts of the case, we find that the High Court proceeded to decide the appeals without formulating the substantial question(s) of law. Indeed, the High Court did not make any effort to find out as to whether the appeals involved any substantial question(s) of law and, if so, which is/are that question(s) and nor it formulated such question(s), if in its opinion, really arose in the appeals. The High Court failed to see that it had jurisdiction to decide the appeals only on the question(s) so formulated and not beyond it. [Section 27(5)].12. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned orders are not legally sustainable and thus liable to be set aside.
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The Commissioner of Income Tax-3, Mumbai Vs. M/S. Axis Private Equity Limited | business has not been set up during the year under consideration and no evidence in regard to the same was produced. So far as miscellaneous income of Rs.24,720/- is concerned, the Assessing Officer brought it to tax as income from other sources.4. Being aggrieved the respondentassessee carried matter in Appeal. By the order dated 13th December, 2011 the Commissioner of Income Tax (Appeal) [CIT (A)] upheld the order of Assessing Officer disallowing business loss of Rs.1.17 crores on the ground that the respondentassessee had not furnished any evidence to prove that any activities of managing the investments or funds have been carried on during the year under consideration. So far as the grievance in respect of Miscellaneous Income of Rs.24,720/- was concerned, it was held that the same arises on account of interest on fixed deposit and is correctly assessed as income from other sources.5. Being aggrieved the respondent filed further appeal to the Tribunal. The Tribunal by the impugned order recorded the fact that the expenses of Rs.1.17 crores was disallowed as business has not been set up in the year under consideration by the lower authorities. The impugned order also makes reference to the fact that the company was incorporated in the year 2006 and the Assistant Registrar of Companies has issued a certificate that the company had commenced business with effect from 1st October, 2006. Further the impugned order records the fact that from the balance sheet and profit and loss account filed which includes Directors report, it is clear that the company has taken steps for commencing business of venture capital fund. It has engaged legal and financial advisors. It had also incurred expenditure to decide the appropriate tax efficient structure for the funds and employed necessary personnel for purpose of running its business. The impugned order records the fact that human capital is key to the business of asset management. Further, the impugned order relied upon a decision of the Coordinate bench of the Tribunal is case of HSBC Securities India Holdings Pvt. Ltd. decided in ITA No.3181/M/1999 decided on 28th November, 2001 wherein it was held that the business would be held to be set up as and when assessee had taken business premises and has taken steps to recruit employees and has incurred expenses for promoting its business activity in fact the impugned order also records the fact that in subsequent assessment year 2009-10 similar expenditure as claimed in the subject Assessment Year have been allowed by the Assessing Officer as business expenses. In the aforesaid circumstances the Tribunal held that expenses incurred are to be allowed as business loss as same had been incurred after the business has been set up. So far as Miscellaneous Income of Rs.24,720/- is concerned, the impugned order records the fact that similar income claimed by the assessee has been categorised as income from other sources, by the Assessing Officer for subsequent assessment year 2009-10 and accepted by the assessee.6. The grievance of the revenue before us is only with regard to the impugned order allowing the expenditure of Rs.1.17 crores as business loss. This conclusion of the Tribunal is premised on the fact that the business has been set up during the year under consideration. It is submitted by the Revenue that no evidence was produced by the assessee to show that any activities of management of funds have been taken by the respondent assessee during the assessment year. Thus no expenditure resulting in business loss could be allowed as the business had not commenced. According to the Revenue, there is no distinction between setting up of business and commencement of business. Therefore, no expenditure incurred before commencement of business can be allowed.7. We note that a similar issue viz. distinction between setting up of business and commencement of business had come up for consideration before this Court in Western India Vegetable Products Ltd. v. Commissioner of Income Tax 1954 Vol. 26 ITR Page 151. This Court had held that business is said to have been set up when it is established and ready to be commence. However, there may be an interval between a business which is set up and a business which is commenced. However, all expenses incurred during the interregnum between setting up of business and commencement of business would be permissible deductions. In this case the CIT (A) had disallowed the expenditure as business loss as on the ground only on the ground that it had not commenced business. However, the impugned order of the Tribunal on examination of facts found that the business of the respondent assessee has been set up in the subject assessment year and consequently, the business loss arising on account of expenditure as claimed by the respondent assessee was allowable. We also note that the impugned order of the Tribunal placed reliance upon the order of its Co-ordinate bench in HSBC Securities India Holdings Pvt. Ltd. (supra) wherein on similar facts it had held that when executives are employed and the infrastructure is ready to commence business, it can be said that the business has been set up for carrying on business as share brokers.8. Mr. Kotangale, learned counsel for the Revenue has not been able to show any distinction which would warrant taking a different view of meaning of business being set up, as understood by the Tribunal in HSBC Securities India Holdings Pvt. Ltd. (supra). Mr. Kotangale states that the revenue has accepted the decision of the Tribunal in HSBC Securities India Holdings Pvt. Ltd. (supra) with regard to business expenditure being allowed on setting up of business, even if the business is yet to commence. The determination of the issue of whether the business has been set up is essentially one of finding of fact. This finding of fact on the basis of the test laid down by this Court in Western India Vegetable Products Ltd. (supra) and the Tribunal in HSBC Securities India Holdings Pvt. Ltd. (supra) is not shown to be perverse. | 0[ds]The Tribunal by the impugned order recorded the fact that the expenses of Rs.1.17 crores was disallowed as business has not been set up in the year under consideration by the lower authorities. The impugned order also makes reference to the fact that the company was incorporated in the year 2006 and the Assistant Registrar of Companies has issued a certificate that the company had commenced business with effect from 1st October, 2006. Further the impugned order records the fact that from the balance sheet and profit and loss account filed which includes Directors report, it is clear that the company has taken steps for commencing business of venture capital fund. It has engaged legal and financial advisors. It had also incurred expenditure to decide the appropriate tax efficient structure for the funds and employed necessary personnel for purpose of running its business. The impugned order records the fact that human capital is key to the business of asset management. Further, the impugned order relied upon a decision of the Coordinate bench of the Tribunal is case of HSBC Securities India Holdings Pvt. Ltd. decided in ITA No.3181/M/1999 decided on 28th November, 2001 wherein it was held that the business would be held to be set up as and when assessee had taken business premises and has taken steps to recruit employees and has incurred expenses for promoting its business activity in fact the impugned order also records the fact that in subsequent assessment yearsimilar expenditure as claimed in the subject Assessment Year have been allowed by the Assessing Officer as business expenses. In the aforesaid circumstances the Tribunal held that expenses incurred are to be allowed as business loss as same had been incurred after the business has been set up. So far as Miscellaneous Income of Rs.24,720/is concerned, the impugned order records the fact that similar income claimed by the assessee has been categorised as income from other sources, by the Assessing Officer for subsequent assessment yearand accepted by the assessee.6. The grievance of the revenue before us is only with regard to the impugned order allowing the expenditure of Rs.1.17 crores as business loss. This conclusion of the Tribunal is premised on the fact that the business has been set up during the year under consideration. It is submitted by the Revenue that no evidence was produced by the assessee to show that any activities of management of funds have been taken by the respondentassessee during the assessment year. Thus no expenditure resulting in business loss could be allowed as the business had not commenced. According to the Revenue, there is no distinction between setting up of business and commencement of business. Therefore, no expenditure incurred before commencement of business can be allowed.7. We note that a similar issue viz. distinction between setting up of business and commencement of business had come up for consideration before this Court in Western India Vegetable Products Ltd. v. Commissioner of Income Tax 1954 Vol. 26 ITR Page 151. This Court had held that business is said to have been set up when it is established and ready to be commence. However, there may be an interval between a business which is set up and a business which is commenced. However, all expenses incurred during the interregnum between setting up of business and commencement of business would be permissible deductions. In this case the CIT (A) had disallowed the expenditure as business loss as on the ground only on the ground that it had not commenced business. However, the impugned order of the Tribunal on examination of facts found that the business of the respondentassessee has been set up in the subject assessment year and consequently, the business loss arising on account of expenditure as claimed by the respondentassessee was allowable. We also note that the impugned order of the Tribunal placed reliance upon the order of itsbench in HSBC Securities India Holdings Pvt. Ltd. (supra) wherein on similar facts it had held that when executives are employed and the infrastructure is ready to commence business, it can be said that the business has been set up for carrying on business as sharedetermination of the issue of whether the business has been set up is essentially one of finding of fact. This finding of fact on the basis of the test laid down by this Court in Western India Vegetable Products Ltd. (supra) and the Tribunal in HSBC Securities India Holdings Pvt. Ltd. (supra) is not shown to be perverse. | 0 | 1,271 | 802 | ### 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:
business has not been set up during the year under consideration and no evidence in regard to the same was produced. So far as miscellaneous income of Rs.24,720/- is concerned, the Assessing Officer brought it to tax as income from other sources.4. Being aggrieved the respondentassessee carried matter in Appeal. By the order dated 13th December, 2011 the Commissioner of Income Tax (Appeal) [CIT (A)] upheld the order of Assessing Officer disallowing business loss of Rs.1.17 crores on the ground that the respondentassessee had not furnished any evidence to prove that any activities of managing the investments or funds have been carried on during the year under consideration. So far as the grievance in respect of Miscellaneous Income of Rs.24,720/- was concerned, it was held that the same arises on account of interest on fixed deposit and is correctly assessed as income from other sources.5. Being aggrieved the respondent filed further appeal to the Tribunal. The Tribunal by the impugned order recorded the fact that the expenses of Rs.1.17 crores was disallowed as business has not been set up in the year under consideration by the lower authorities. The impugned order also makes reference to the fact that the company was incorporated in the year 2006 and the Assistant Registrar of Companies has issued a certificate that the company had commenced business with effect from 1st October, 2006. Further the impugned order records the fact that from the balance sheet and profit and loss account filed which includes Directors report, it is clear that the company has taken steps for commencing business of venture capital fund. It has engaged legal and financial advisors. It had also incurred expenditure to decide the appropriate tax efficient structure for the funds and employed necessary personnel for purpose of running its business. The impugned order records the fact that human capital is key to the business of asset management. Further, the impugned order relied upon a decision of the Coordinate bench of the Tribunal is case of HSBC Securities India Holdings Pvt. Ltd. decided in ITA No.3181/M/1999 decided on 28th November, 2001 wherein it was held that the business would be held to be set up as and when assessee had taken business premises and has taken steps to recruit employees and has incurred expenses for promoting its business activity in fact the impugned order also records the fact that in subsequent assessment year 2009-10 similar expenditure as claimed in the subject Assessment Year have been allowed by the Assessing Officer as business expenses. In the aforesaid circumstances the Tribunal held that expenses incurred are to be allowed as business loss as same had been incurred after the business has been set up. So far as Miscellaneous Income of Rs.24,720/- is concerned, the impugned order records the fact that similar income claimed by the assessee has been categorised as income from other sources, by the Assessing Officer for subsequent assessment year 2009-10 and accepted by the assessee.6. The grievance of the revenue before us is only with regard to the impugned order allowing the expenditure of Rs.1.17 crores as business loss. This conclusion of the Tribunal is premised on the fact that the business has been set up during the year under consideration. It is submitted by the Revenue that no evidence was produced by the assessee to show that any activities of management of funds have been taken by the respondent assessee during the assessment year. Thus no expenditure resulting in business loss could be allowed as the business had not commenced. According to the Revenue, there is no distinction between setting up of business and commencement of business. Therefore, no expenditure incurred before commencement of business can be allowed.7. We note that a similar issue viz. distinction between setting up of business and commencement of business had come up for consideration before this Court in Western India Vegetable Products Ltd. v. Commissioner of Income Tax 1954 Vol. 26 ITR Page 151. This Court had held that business is said to have been set up when it is established and ready to be commence. However, there may be an interval between a business which is set up and a business which is commenced. However, all expenses incurred during the interregnum between setting up of business and commencement of business would be permissible deductions. In this case the CIT (A) had disallowed the expenditure as business loss as on the ground only on the ground that it had not commenced business. However, the impugned order of the Tribunal on examination of facts found that the business of the respondent assessee has been set up in the subject assessment year and consequently, the business loss arising on account of expenditure as claimed by the respondent assessee was allowable. We also note that the impugned order of the Tribunal placed reliance upon the order of its Co-ordinate bench in HSBC Securities India Holdings Pvt. Ltd. (supra) wherein on similar facts it had held that when executives are employed and the infrastructure is ready to commence business, it can be said that the business has been set up for carrying on business as share brokers.8. Mr. Kotangale, learned counsel for the Revenue has not been able to show any distinction which would warrant taking a different view of meaning of business being set up, as understood by the Tribunal in HSBC Securities India Holdings Pvt. Ltd. (supra). Mr. Kotangale states that the revenue has accepted the decision of the Tribunal in HSBC Securities India Holdings Pvt. Ltd. (supra) with regard to business expenditure being allowed on setting up of business, even if the business is yet to commence. The determination of the issue of whether the business has been set up is essentially one of finding of fact. This finding of fact on the basis of the test laid down by this Court in Western India Vegetable Products Ltd. (supra) and the Tribunal in HSBC Securities India Holdings Pvt. Ltd. (supra) is not shown to be perverse.
### Response:
0
### Explanation:
The Tribunal by the impugned order recorded the fact that the expenses of Rs.1.17 crores was disallowed as business has not been set up in the year under consideration by the lower authorities. The impugned order also makes reference to the fact that the company was incorporated in the year 2006 and the Assistant Registrar of Companies has issued a certificate that the company had commenced business with effect from 1st October, 2006. Further the impugned order records the fact that from the balance sheet and profit and loss account filed which includes Directors report, it is clear that the company has taken steps for commencing business of venture capital fund. It has engaged legal and financial advisors. It had also incurred expenditure to decide the appropriate tax efficient structure for the funds and employed necessary personnel for purpose of running its business. The impugned order records the fact that human capital is key to the business of asset management. Further, the impugned order relied upon a decision of the Coordinate bench of the Tribunal is case of HSBC Securities India Holdings Pvt. Ltd. decided in ITA No.3181/M/1999 decided on 28th November, 2001 wherein it was held that the business would be held to be set up as and when assessee had taken business premises and has taken steps to recruit employees and has incurred expenses for promoting its business activity in fact the impugned order also records the fact that in subsequent assessment yearsimilar expenditure as claimed in the subject Assessment Year have been allowed by the Assessing Officer as business expenses. In the aforesaid circumstances the Tribunal held that expenses incurred are to be allowed as business loss as same had been incurred after the business has been set up. So far as Miscellaneous Income of Rs.24,720/is concerned, the impugned order records the fact that similar income claimed by the assessee has been categorised as income from other sources, by the Assessing Officer for subsequent assessment yearand accepted by the assessee.6. The grievance of the revenue before us is only with regard to the impugned order allowing the expenditure of Rs.1.17 crores as business loss. This conclusion of the Tribunal is premised on the fact that the business has been set up during the year under consideration. It is submitted by the Revenue that no evidence was produced by the assessee to show that any activities of management of funds have been taken by the respondentassessee during the assessment year. Thus no expenditure resulting in business loss could be allowed as the business had not commenced. According to the Revenue, there is no distinction between setting up of business and commencement of business. Therefore, no expenditure incurred before commencement of business can be allowed.7. We note that a similar issue viz. distinction between setting up of business and commencement of business had come up for consideration before this Court in Western India Vegetable Products Ltd. v. Commissioner of Income Tax 1954 Vol. 26 ITR Page 151. This Court had held that business is said to have been set up when it is established and ready to be commence. However, there may be an interval between a business which is set up and a business which is commenced. However, all expenses incurred during the interregnum between setting up of business and commencement of business would be permissible deductions. In this case the CIT (A) had disallowed the expenditure as business loss as on the ground only on the ground that it had not commenced business. However, the impugned order of the Tribunal on examination of facts found that the business of the respondentassessee has been set up in the subject assessment year and consequently, the business loss arising on account of expenditure as claimed by the respondentassessee was allowable. We also note that the impugned order of the Tribunal placed reliance upon the order of itsbench in HSBC Securities India Holdings Pvt. Ltd. (supra) wherein on similar facts it had held that when executives are employed and the infrastructure is ready to commence business, it can be said that the business has been set up for carrying on business as sharedetermination of the issue of whether the business has been set up is essentially one of finding of fact. This finding of fact on the basis of the test laid down by this Court in Western India Vegetable Products Ltd. (supra) and the Tribunal in HSBC Securities India Holdings Pvt. Ltd. (supra) is not shown to be perverse.
|
Kannan Devan Hills Produce Company Limited Vs. State of Kerala & Another | in the city of Madras, though of great social and economic importance, was not included in the concept of agrarian reform by this Court in P. Vajravalu Mudaliar v. Special Deputy Collector, Madras (1965) 1 SCR 614 = (AIR 1965 SC 1017 ). But a wide meaning was given to the concept in Ranjit Singh v. State of Punjab (1965) 1 SCR 82 at p. 94 = (AIR 1965 SC 632 ). The transfer of Shamlat deh owned by the proprietors to the village Panchayat for the purpose of management in the manner stated in the Consolidation of Holdings Act and conferment of proprietary rights in respect of lands in the Abadi deh was treated as effecting agrarian reforms. Hidayatullah J., as he then was, observed: The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few on the other, but envisages also the raising of economic standards and bettering rural health and social conditions. Provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc. endure for the benefit of rural population must be considered to be an essential part of the redistribution of holdings and open lands to which do objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands. 62. The definition of common purpose is reproduced below for convenience: Common purpose means any purpose in relation to any common need, convenience or benefit of the village and includes the following purposes: (i) extension of the village Abadi; (ii) providing income for the Panchayat of the village concerned for the benefit of the village community. (iii) village roads and paths; village drains; village wells, ponds or tanks; village water courses or water channels; village bus stands and waiting places; manure pits; had rori; public latrines; cremation and burial grounds; panchayat ghar; Janj Ghar, grazing grounds; tanning places; mela grounds; public places of religious or charitable nature; and (iv) schools and play-grounds, dispensaries, hospitals and institutions of like nature, water-works or tube-wells whether such schools, play-grounds, dispensaries, hospitals, institutions, water-works or tube-wells may be managed and controlled by the State Government or not. We are bound by the judgment. What are the implications of this judgment? All the purposes mentioned above were held to be comprised within the concept of agrarian reform. 63. It is urged that the wording of the first two purposes in S.9 is too wide. But if we look at the definition of common purpose, which was sustained by this Court in Ranjit Singhs case, (1965) 1 SCR 82 = (AIR 1965 SC 632 ), it shows that the purposes sustained thereby would come under either the expression promotion of agriculture or welfare of agricultural population in S.9. Indeed some would fall under both. For instance, reservation of lands for manure pits, water-works or wells, village water courses or water channels and grazing grounds would promote agriculture; schools and play-ground, dispensaries, public latrines etc. would be for the welfare of agriculturists. 64. If the State were to use lands for purposes which have no direct connection with the promotion of agriculture or welfare of agricultural population the State could be restrained from using the lands for those purposes. Any fanciful connection with these purposes would not be enough. 65. It seems to us that if we read these two purposes to mean that these include only common purposes, which were sustained by this Court and purposes similar thereto it would be difficult to say that they are not for agrarian reform. In a sense agrarian reform is wider than land reform. It includes besides land reform something more and that something more is illustrated by the definition of common purpose, which was sustained by this Court in Ranjit Singhs case, (1965) 1 SCR 82 = (AIR 1965 SC 632 ). 66. In State of Uttar Pradesh v. Raja Anand, (1967) 1 SCR 362 at p. 372 = (AIR 1967 SC 661 ) the acquisition of a grant in the nature of Jagir was upheld. It was observed: Mr. A. K. Sen further urges that the acquisition of the estate was not for the purposes of agrarian reforms because hundreds of square miles of forest are sought to be acquired. But as we have held that the area in dispute is a grant in the nature of Jagir or inam, its acquisition like the acquisition of all Jagirs, inams, or similar grants, was a necessary step in the implementation of the agrarian reforms and was clearly contemplated in Article 31-A. 67. These observations must be understood in the light of the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, for the impugned Act in that case (U. P. Act No. 1 of 1964) had amended Section 3 (8) of that Act of 1950. This grant in the nature of the jagir stood in the same position as all the big zamindaris and jagirs in Uttar Pradesh. It has never been urged that the Act of 1950 was not a measure of agrarian reform. 68. The third object - settlement of agriculturists and agricultural labour - it seems to us, is clearly covered by the expression agrarian reforms. The main object of agrarian reforms has been to acquire excess land and settle landless labourers and agriculturists. 69. We are accordingly of the opinion that the three purposes - the first two read as we have indicated - are covered by the expression agrarian reform and the legislation is protected from challenge by Article 31-A. | 0[ds]29. It seems to us clear that the State has legislative competence to legislate on Entry 18, List II and Entry 42 List III. This power cannot be denied on the ground that it has some effect on an industry controlled under Entry 52, List I. Effect is not the same thing as subject-matterIf a State Act, otherwise valid, has effect on a matter in List I does not cease to be a legislation with respect to an entry in List II or List III.The object of Sections 4 and 5 seems to be to enable the State to acquire all the lands which do not fall within the categories (a), (b) and (c) of S.4 (1). These provisions are really incidental to the exercise of the power of acquisition. The State cannot be denied a power to ascertain what land should be acquired by it in the public interest35. The fact that the plantation is run as an integrated unit was strongly relied on but this cannot impinge upon and take away the legislative power of the State in respect of List II, Entry 1844. For the reasons mentioned above we have come to the conclusion that the State Legislature was competent to enact the impugned Act and that it is not repugnant to the Tea Act52.It seems to us that on the material placed before us it is difficult to resist the conclusion that the lands in dispute all within the expression janmam right.If, as stated in Travancore Land Revenue Manual Vol. IV, there are no lands that do not belong to a Janmi and the Sircar becomes a Janmi by gift, escheat, confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi. We are not concerned here with lands which were held by the Full Bench of the Kerala High Court in Sukapuram Sabhayogam v. State of Kerala, AIR 1963 Kerala 101 to be held under Ryotwari tenure after the introduction of the Ryotwari Settlement in the Malabar area of Kerala State58. It seems that if it is held that the land does not fall within the expression janmam right it may possibly be covered by the decision of this Court in Purshothaman Nambudiris case, (1962) Supp 1 SCR 753 = (AIR 1962 SC 694 ) but as arguments were not addressed to us on this point we do not express our final opinion64. If the State were to use lands for purposes which have no direct connection with the promotion of agriculture or welfare of agricultural population the State could be restrained from using the lands for those purposes. Any fanciful connection with these purposes would not be enough65. It seems to us that if we read these two purposes to mean that these include only common purposes, which were sustained by this Court and purposes similar thereto it would be difficult to say that they are not for agrarian reform. In a sense agrarian reform is wider than land reform. It includes besides land reform something more and that something more is illustrated by the definition of common purpose,67. These observations must be understood in the light of the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, for the impugned Act in that case (U. P. Act No. 1 of 1964) had amended Section 3 (8) of that Act of 1950. This grant in the nature of the jagir stood in the same position as all the big zamindaris and jagirs in Uttar Pradesh. It has never been urged that the Act of 1950 was not a measure of agrarian reform68. The third object - settlement of agriculturists and agricultural labour - it seems to us, is clearly covered by the expression agrarian reforms. The main object of agrarian reforms has been to acquire excess land and settle landless labourers and agriculturists69. We are accordingly of the opinion that the three purposes - the first two read as we have indicated - are covered by the expression agrarian reform and the legislation is protected from challenge by Article 31-A. | 0 | 10,462 | 749 | ### 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.
### Input:
in the city of Madras, though of great social and economic importance, was not included in the concept of agrarian reform by this Court in P. Vajravalu Mudaliar v. Special Deputy Collector, Madras (1965) 1 SCR 614 = (AIR 1965 SC 1017 ). But a wide meaning was given to the concept in Ranjit Singh v. State of Punjab (1965) 1 SCR 82 at p. 94 = (AIR 1965 SC 632 ). The transfer of Shamlat deh owned by the proprietors to the village Panchayat for the purpose of management in the manner stated in the Consolidation of Holdings Act and conferment of proprietary rights in respect of lands in the Abadi deh was treated as effecting agrarian reforms. Hidayatullah J., as he then was, observed: The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few on the other, but envisages also the raising of economic standards and bettering rural health and social conditions. Provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc. endure for the benefit of rural population must be considered to be an essential part of the redistribution of holdings and open lands to which do objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands. 62. The definition of common purpose is reproduced below for convenience: Common purpose means any purpose in relation to any common need, convenience or benefit of the village and includes the following purposes: (i) extension of the village Abadi; (ii) providing income for the Panchayat of the village concerned for the benefit of the village community. (iii) village roads and paths; village drains; village wells, ponds or tanks; village water courses or water channels; village bus stands and waiting places; manure pits; had rori; public latrines; cremation and burial grounds; panchayat ghar; Janj Ghar, grazing grounds; tanning places; mela grounds; public places of religious or charitable nature; and (iv) schools and play-grounds, dispensaries, hospitals and institutions of like nature, water-works or tube-wells whether such schools, play-grounds, dispensaries, hospitals, institutions, water-works or tube-wells may be managed and controlled by the State Government or not. We are bound by the judgment. What are the implications of this judgment? All the purposes mentioned above were held to be comprised within the concept of agrarian reform. 63. It is urged that the wording of the first two purposes in S.9 is too wide. But if we look at the definition of common purpose, which was sustained by this Court in Ranjit Singhs case, (1965) 1 SCR 82 = (AIR 1965 SC 632 ), it shows that the purposes sustained thereby would come under either the expression promotion of agriculture or welfare of agricultural population in S.9. Indeed some would fall under both. For instance, reservation of lands for manure pits, water-works or wells, village water courses or water channels and grazing grounds would promote agriculture; schools and play-ground, dispensaries, public latrines etc. would be for the welfare of agriculturists. 64. If the State were to use lands for purposes which have no direct connection with the promotion of agriculture or welfare of agricultural population the State could be restrained from using the lands for those purposes. Any fanciful connection with these purposes would not be enough. 65. It seems to us that if we read these two purposes to mean that these include only common purposes, which were sustained by this Court and purposes similar thereto it would be difficult to say that they are not for agrarian reform. In a sense agrarian reform is wider than land reform. It includes besides land reform something more and that something more is illustrated by the definition of common purpose, which was sustained by this Court in Ranjit Singhs case, (1965) 1 SCR 82 = (AIR 1965 SC 632 ). 66. In State of Uttar Pradesh v. Raja Anand, (1967) 1 SCR 362 at p. 372 = (AIR 1967 SC 661 ) the acquisition of a grant in the nature of Jagir was upheld. It was observed: Mr. A. K. Sen further urges that the acquisition of the estate was not for the purposes of agrarian reforms because hundreds of square miles of forest are sought to be acquired. But as we have held that the area in dispute is a grant in the nature of Jagir or inam, its acquisition like the acquisition of all Jagirs, inams, or similar grants, was a necessary step in the implementation of the agrarian reforms and was clearly contemplated in Article 31-A. 67. These observations must be understood in the light of the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, for the impugned Act in that case (U. P. Act No. 1 of 1964) had amended Section 3 (8) of that Act of 1950. This grant in the nature of the jagir stood in the same position as all the big zamindaris and jagirs in Uttar Pradesh. It has never been urged that the Act of 1950 was not a measure of agrarian reform. 68. The third object - settlement of agriculturists and agricultural labour - it seems to us, is clearly covered by the expression agrarian reforms. The main object of agrarian reforms has been to acquire excess land and settle landless labourers and agriculturists. 69. We are accordingly of the opinion that the three purposes - the first two read as we have indicated - are covered by the expression agrarian reform and the legislation is protected from challenge by Article 31-A.
### Response:
0
### Explanation:
29. It seems to us clear that the State has legislative competence to legislate on Entry 18, List II and Entry 42 List III. This power cannot be denied on the ground that it has some effect on an industry controlled under Entry 52, List I. Effect is not the same thing as subject-matterIf a State Act, otherwise valid, has effect on a matter in List I does not cease to be a legislation with respect to an entry in List II or List III.The object of Sections 4 and 5 seems to be to enable the State to acquire all the lands which do not fall within the categories (a), (b) and (c) of S.4 (1). These provisions are really incidental to the exercise of the power of acquisition. The State cannot be denied a power to ascertain what land should be acquired by it in the public interest35. The fact that the plantation is run as an integrated unit was strongly relied on but this cannot impinge upon and take away the legislative power of the State in respect of List II, Entry 1844. For the reasons mentioned above we have come to the conclusion that the State Legislature was competent to enact the impugned Act and that it is not repugnant to the Tea Act52.It seems to us that on the material placed before us it is difficult to resist the conclusion that the lands in dispute all within the expression janmam right.If, as stated in Travancore Land Revenue Manual Vol. IV, there are no lands that do not belong to a Janmi and the Sircar becomes a Janmi by gift, escheat, confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi. We are not concerned here with lands which were held by the Full Bench of the Kerala High Court in Sukapuram Sabhayogam v. State of Kerala, AIR 1963 Kerala 101 to be held under Ryotwari tenure after the introduction of the Ryotwari Settlement in the Malabar area of Kerala State58. It seems that if it is held that the land does not fall within the expression janmam right it may possibly be covered by the decision of this Court in Purshothaman Nambudiris case, (1962) Supp 1 SCR 753 = (AIR 1962 SC 694 ) but as arguments were not addressed to us on this point we do not express our final opinion64. If the State were to use lands for purposes which have no direct connection with the promotion of agriculture or welfare of agricultural population the State could be restrained from using the lands for those purposes. Any fanciful connection with these purposes would not be enough65. It seems to us that if we read these two purposes to mean that these include only common purposes, which were sustained by this Court and purposes similar thereto it would be difficult to say that they are not for agrarian reform. In a sense agrarian reform is wider than land reform. It includes besides land reform something more and that something more is illustrated by the definition of common purpose,67. These observations must be understood in the light of the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, for the impugned Act in that case (U. P. Act No. 1 of 1964) had amended Section 3 (8) of that Act of 1950. This grant in the nature of the jagir stood in the same position as all the big zamindaris and jagirs in Uttar Pradesh. It has never been urged that the Act of 1950 was not a measure of agrarian reform68. The third object - settlement of agriculturists and agricultural labour - it seems to us, is clearly covered by the expression agrarian reforms. The main object of agrarian reforms has been to acquire excess land and settle landless labourers and agriculturists69. We are accordingly of the opinion that the three purposes - the first two read as we have indicated - are covered by the expression agrarian reform and the legislation is protected from challenge by Article 31-A.
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Randhir Singh Vs. Union of India and Others | abstract doctrine which had nothing to do with Art. 14. We shall presently point out how the principle, "equal pay for equal work" is not an abstract doctrine but one of substance. Kishori Mohanlal Bakshi v. Union of India is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grade s of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. Th e principle of equal pay for equal work would be an abstract doctrine not attracting Art. 14 if sought to be applied to them.5. It is true that the principle of equal pay for equal work is not expressly declared by our Constitution to be a funda mental right. But it certainly is a Constitutional goal. Art. 39(d) of the Constitution proclaims equal pay for equal work for both men and women" as a Directive Principle of State Policy. Equal pay for equal work for both men and wom en means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Art. 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work the y do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax eva ders is discriminatory, whether a particular Governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutiona l and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word Socialist must mean something. Even if it does not mean To each according to his need, it must atleast mean equal pay for equal work. The principle of equal pay for equal work is expressly recognized by all socialist systems of law, e.g, Section 59 of the Hungarian Labour. Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been in corporated in several western labour codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bar gaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance (vide: International Labour Law by Istvan Szaszy p. 265). The preamble of the Constitution of the International Labour Organisation recognises the principle of equal remuneration for work of equal value as constituting one of the means of achieving the improvement of condit ions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled". Construing Articles 14 and 16 in the light of the Preamble and Art. 39(d) we are o f the view that the principle Equal pay for Equal work is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do idential work under the same employer.6. There cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with the powers, functions and privileges of a police officer, their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver-constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver-constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others ? There is none. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay fo r equal work is not a principle which the Courts may recognise and act upon. We have shown that the answer is unsound. The clarification is irrational. | 1[ds]It is true that the principle of equal pay for equal work is not expressly declared by our Constitution to be a funda mental right. But it certainly is a Constitutional goal. Art. 39(d) of the Constitution proclaims equal pay for equal work for both men and women" as a Directive Principle of State Policy. Equal pay for equal work for both men and wom en means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Art. 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work the y do and the pay they get. To them the equality clauses will have some substance if equal work means equalare o f the view that the principle Equal pay for Equal work is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do idential work under the samecannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with the powers, functions and privileges of a police officer, their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver-constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver-constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others ? There is none. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay fo r equal work is not a principle which the Courts may recognise and act upon. We have shown that the answer is unsound. The clarification is irrational. | 1 | 2,938 | 476 | ### Instruction:
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abstract doctrine which had nothing to do with Art. 14. We shall presently point out how the principle, "equal pay for equal work" is not an abstract doctrine but one of substance. Kishori Mohanlal Bakshi v. Union of India is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grade s of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. Th e principle of equal pay for equal work would be an abstract doctrine not attracting Art. 14 if sought to be applied to them.5. It is true that the principle of equal pay for equal work is not expressly declared by our Constitution to be a funda mental right. But it certainly is a Constitutional goal. Art. 39(d) of the Constitution proclaims equal pay for equal work for both men and women" as a Directive Principle of State Policy. Equal pay for equal work for both men and wom en means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Art. 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work the y do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax eva ders is discriminatory, whether a particular Governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutiona l and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word Socialist must mean something. Even if it does not mean To each according to his need, it must atleast mean equal pay for equal work. The principle of equal pay for equal work is expressly recognized by all socialist systems of law, e.g, Section 59 of the Hungarian Labour. Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been in corporated in several western labour codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bar gaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance (vide: International Labour Law by Istvan Szaszy p. 265). The preamble of the Constitution of the International Labour Organisation recognises the principle of equal remuneration for work of equal value as constituting one of the means of achieving the improvement of condit ions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled". Construing Articles 14 and 16 in the light of the Preamble and Art. 39(d) we are o f the view that the principle Equal pay for Equal work is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do idential work under the same employer.6. There cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with the powers, functions and privileges of a police officer, their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver-constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver-constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others ? There is none. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay fo r equal work is not a principle which the Courts may recognise and act upon. We have shown that the answer is unsound. The clarification is irrational.
### Response:
1
### Explanation:
It is true that the principle of equal pay for equal work is not expressly declared by our Constitution to be a funda mental right. But it certainly is a Constitutional goal. Art. 39(d) of the Constitution proclaims equal pay for equal work for both men and women" as a Directive Principle of State Policy. Equal pay for equal work for both men and wom en means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Art. 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work the y do and the pay they get. To them the equality clauses will have some substance if equal work means equalare o f the view that the principle Equal pay for Equal work is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do idential work under the samecannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with the powers, functions and privileges of a police officer, their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver-constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver-constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others ? There is none. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay fo r equal work is not a principle which the Courts may recognise and act upon. We have shown that the answer is unsound. The clarification is irrational.
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M/S Topman Exports Vs. Commr Of Income Tax,Mumbai | of DEPB covered under clause (iiid) of Section 28 and ninety per cent of such profit on transfer of DEPB certificate will get excluded from “profits of the business”. But, where the DEPB accrues to the assessee in the first previous year and the assessee transfers the DEPB certificate in the second previous year, as appears to have happened in the present batch of cases, only ninety per cent of the profits on transfer of DEPB covered under clause (iiid) and not ninety per cent of the entire sale value including the face value of the DEPB will get excluded from the “profits of the business”. Thus, where the ninety per cent of the face value of the DEPB does not get excluded from “profits of the business” under explanation (baa) and only ninety per cent of the difference between the face value of the DEPB and the sale value of the DEPB gets excluded from “profits of the business”, the assessee gets a bigger figure of “profits of the business” and this is possible when the DEPB accrues to the assessee in one previous year and transfer of the DEPB takes place in the subsequent previous year. The result in such case is that a higher figure of “profits of the business“ becomes the multiplier in the aforesaid formula under sub- section (3)(a) of Section 80HHC for arriving at the figure of profits derived from exports. 21. To the figure of profits derived from exports worked out as per the aforesaid formula under sub-section (3)(a) of Section 80HHC, the additions as mentioned in first, second, third and fourth proviso under sub-section (3) are made to profits derived from exports. Under the first proviso, ninety per cent of the sum referred to in clauses (iiia), (iiib) and (iiic) of Section 28 are added in the same proportion as export turnover bears to the total turnover of the business carried on by the assessee. In this first proviso, there is no addition of any sum referred to in clause (iiid) or clause (iiie). Hence, profit on transfer of DEPB or DFRC are not to be added under the first proviso. Where therefore in the previous year no DEPB or DFRC accrues to the assessee, he would not be entitled to the benefit of the first proviso to sub-section (3) of Section 80HHC because he would not have any sum referred to in clause (iiib) of Section 28 of the Act. The second proviso to sub-section (3) of Section 80HHC states that in case of an assessee having export turnover not exceeding Rs.10 crores during the previous year, after giving effect to the first proviso, the export profits are to be increased further by the amount which bears to ninety per cent of any sum referred to in clauses (iiid) and (iiie) of Section 28, the same proportion as the export turnover bears to the total turnover of the business carried on by the assessee. The third proviso to sub-section (3) states that in case of an assessee having export turnover exceeding Rs.10 crores, similar addition of ninety per cent of the sums referred to in clause (iiid) of Section 28 only if the assessee has the necessary and sufficient evidence to prove that (a) he had an option to choose either the duty drawback or the Duty Entitlement Pass Book Scheme, being the Duty Remission Scheme; and (b) the rate of drawback credit attributable to the customs duty was higher than the rate of credit allowable under the Duty Entitlement Pass Book Scheme, being the Duty Remission Scheme. Therefore, if the assessee having export turnover of more than Rs.10 crores does not satisfy these two conditions, he will not be entitled to the addition of profit on transfer of DEPB under the third proviso to sub-section (3) of Section 80HHC. 22. The aforesaid discussion would show that where an assessee has an export turnover exceeding Rs.10 crores and has made profits on transfer of DEPB under clause (d) of Section 28, he would not get the benefit of addition to export profits under third or fourth proviso to sub-section (3) of Section 80HHC, but he would get the benefit of exclusion of a smaller figure from “profits of the business” under explanation (baa) to Section 80HHC of the Act and there is nothing in explanation (baa) to Section 80HHC to show that this benefit of exclusion of a smaller figure from “profits of the business” will not be available to an assessee having an export turnover exceeding Rs.10 crores. In other words, where the export turnover of an assessee exceeds Rs.10 crores, he does not get the benefit of addition of ninety per cent of export incentive under clause (iiid) of Section 28 to his export profits, but he gets a higher figure of profits of the business, which ultimately results in computation of a bigger export profit. The High Court, therefore, was not right in coming to the conclusion that as the assessee did not have the export turnover exceeding Rs.10 crores and as the assessee did not fulfill the conditions set out in the third proviso to Section 80HHC (iii), the assessee was not entitled to a deduction under Section 80HHC on the amount received on transfer of DEPB and with a view to get over this difficulty the assessee was contending that the profits on transfer of DEPB under Section 28 (iiid) would not include the face value of the DEPB. It is a well-settled principle of statutory interpretation of a taxing statute that a subject will be liable to tax and will be entitled to exemption from tax according to the strict language of the taxing statute and if as per the words used in explanation (baa) to Section 80HHC read with the words used in clauses (iiid) and (iiie) of Section 28, the assessee was entitled to a deduction under Section 80HHC on export profits, the benefit of such deduction cannot be denied to the assessee. | 1[ds]12. It will be clear from the aforesaid provisions of Section 28 that under clause (iiib) cash assistance (by whatever name called) received or receivable by any person against exports under any scheme of the Government of India is by itself income chargeable to income tax under the headd Gains of Business orDEPB is a kind of assistance given by the Government of India to an exporter to pay customs duty on its imports and it is receivable once exports are made and an application is made by the exporter for DEPB. We have, therefore, no doubt that DEPB isle by a person against exports under the scheme of the Government of India and falls under clause (iiib) of Section 28 and is chargeable to income tax under the headd Gains of Business oreven before it is transferred by the assessee.We are, thus, of the considered opinion that while the face value of the DEPB will fall under clause (iiib) of Section 28 of the Act, the difference between the sale value and the face value of the DEPB will fall under clause (iiid) of Section 28 of the Act and the High Court was not right in taking the view in the impugned judgment that the entire sale proceeds of the DEPB realized on transfer of the DEPB and not just the difference between the sale value and the face value of the DEPB represent profit on transfer of the DEPB.15. We may now point out the errors in the impugned judgment of the High Court. The first reason given by the High Court is that clause (iiia) of Section 28 treats profits on the sale of an import license as income chargeable to tax and when the license is sold, the entire amount is treated as profits of business under clause (iiia) of Section 28 and thus there is no justification to treat the amount which is received by an exporter on the transfer of the DEPB any differently than the profits which are made on the sale of an import license under clause (iiia) of Section 28 of the Act. In taking the view that when the import license is sold the entire amount is treated as profits of business, the High Court has visualized a situation where the cost of acquiring the import license is nil. The cost of acquiring DEPB, on the other hand, is not nil because the person acquires it by paying customs duty on the import content of the export product and the DEPB which accrues to a person against exports has a cost element in it. Accordingly, when DEPB is sold by a person, his profit on transfer of DEPB would be the sale value of the DEPB less the face value of DEPB which represents the cost of the DEPB. The second reason given by the High Court in the impugned judgment is that under the DEPB scheme, DEPB is given at a percentage of the FOB value of the exports so as to neutralize the incidence of customs duty on the import content of the export products, but the exporter may not himself utilize the DEPB for paying customs duty but may transfer it to someone else and therefore the entire sum received on transfer of DEPB would be covered under clause (iiid) of Section 28. The High Court has failed to appreciate that DEPB represents part of the cost incurred by a person for manufacture of the export product and hence even where the DEPB is not utilized by the exporter but is transferred to another person, the DEPB continues to remain as a cost to the exporter. When, therefore, DEPB is transferred by a person, the entire sum received by him on such transfer does not become his profits. It is only the amount that he receives in excess of the DEPB which represents his profits on transfer of the DEPB.16. The High Court has sought to meet the argument of double taxation made on behalf of the assessees by holding that where the face value of the DEPB was offered to tax in the year in which the credit accrued to the assessee as business profits, then any further profit arising on transfer of DEPB would be taxed as profits of business under Section 28(iiid) in the year in which the transfer of DEPB took place. This view of the High Court, in our considered opinion, is contrary to the language of Section 28 of the Act under whiched or receivable by any person against exports such as the DEPB andon transfer of theare treated as two separate items of income under clauses (iiib) and (iiid) of Section 28. If accrual of DEPB and profit on transfer of DEPB are treated as two separate items of income chargeable to tax under clauses (iiib) and (iiid) of Section 28 of the Act, then DEPB will be chargeable as income under clause (iiib) of Section 28 in the year in which the person applies for DEPB credit against the exports and the profiton transfer of theDEPB by that person will be chargeable as income under clause (iiid) of Section 28 in his hands in the year in which he makes the transfer. Accordingly, if in the same previous year the DEPB accrues to a person and he also earns profiton transfer of theDEPB, the DEPB will be business profits under clause (iiib) and the difference between the sale value and the DEPB (face value) would be the profits on the transfer of DEPB under clause (iiid) for the same assessment year. Where, however, the DEPB accrues to a person in one previous year and the transfer of DEPB takes place in a subsequent previous year, then the DEPB will be chargeable as income of the person for the first assessment year chargeable under clause (iiib) of Section 28 and the difference between the DEPB credit and the sale value of the DEPB credit would be income in his hands for the subsequent assessment year chargeable under clause (iiid) of Section 28. The interpretation suggested by us, therefore, does not lead to double taxation of the same income, which the legislature must be presumed to have avoided.17. The High Court has held that as the assessees had an export turnover exceeding Rs.10 crores and did not fulfill the conditions set out in the third proviso to Section 80HHC(3) of the Act, the assessees were not entitled to a deduction under Section 80HHC on the amount received on transfer of DEPB and to get over this difficulty the assessees have contended that the profits on transfer of DEPB in Section 28(iiid) would not include the face value of the DEPB so that the assessees get a deduction under Section 80HHC on the face value of the DEPB. This finding of the High Court is not based on an accurate understanding scheme of Section 80HHC of the Act. | 1 | 7,598 | 1,260 | ### Instruction:
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of DEPB covered under clause (iiid) of Section 28 and ninety per cent of such profit on transfer of DEPB certificate will get excluded from “profits of the business”. But, where the DEPB accrues to the assessee in the first previous year and the assessee transfers the DEPB certificate in the second previous year, as appears to have happened in the present batch of cases, only ninety per cent of the profits on transfer of DEPB covered under clause (iiid) and not ninety per cent of the entire sale value including the face value of the DEPB will get excluded from the “profits of the business”. Thus, where the ninety per cent of the face value of the DEPB does not get excluded from “profits of the business” under explanation (baa) and only ninety per cent of the difference between the face value of the DEPB and the sale value of the DEPB gets excluded from “profits of the business”, the assessee gets a bigger figure of “profits of the business” and this is possible when the DEPB accrues to the assessee in one previous year and transfer of the DEPB takes place in the subsequent previous year. The result in such case is that a higher figure of “profits of the business“ becomes the multiplier in the aforesaid formula under sub- section (3)(a) of Section 80HHC for arriving at the figure of profits derived from exports. 21. To the figure of profits derived from exports worked out as per the aforesaid formula under sub-section (3)(a) of Section 80HHC, the additions as mentioned in first, second, third and fourth proviso under sub-section (3) are made to profits derived from exports. Under the first proviso, ninety per cent of the sum referred to in clauses (iiia), (iiib) and (iiic) of Section 28 are added in the same proportion as export turnover bears to the total turnover of the business carried on by the assessee. In this first proviso, there is no addition of any sum referred to in clause (iiid) or clause (iiie). Hence, profit on transfer of DEPB or DFRC are not to be added under the first proviso. Where therefore in the previous year no DEPB or DFRC accrues to the assessee, he would not be entitled to the benefit of the first proviso to sub-section (3) of Section 80HHC because he would not have any sum referred to in clause (iiib) of Section 28 of the Act. The second proviso to sub-section (3) of Section 80HHC states that in case of an assessee having export turnover not exceeding Rs.10 crores during the previous year, after giving effect to the first proviso, the export profits are to be increased further by the amount which bears to ninety per cent of any sum referred to in clauses (iiid) and (iiie) of Section 28, the same proportion as the export turnover bears to the total turnover of the business carried on by the assessee. The third proviso to sub-section (3) states that in case of an assessee having export turnover exceeding Rs.10 crores, similar addition of ninety per cent of the sums referred to in clause (iiid) of Section 28 only if the assessee has the necessary and sufficient evidence to prove that (a) he had an option to choose either the duty drawback or the Duty Entitlement Pass Book Scheme, being the Duty Remission Scheme; and (b) the rate of drawback credit attributable to the customs duty was higher than the rate of credit allowable under the Duty Entitlement Pass Book Scheme, being the Duty Remission Scheme. Therefore, if the assessee having export turnover of more than Rs.10 crores does not satisfy these two conditions, he will not be entitled to the addition of profit on transfer of DEPB under the third proviso to sub-section (3) of Section 80HHC. 22. The aforesaid discussion would show that where an assessee has an export turnover exceeding Rs.10 crores and has made profits on transfer of DEPB under clause (d) of Section 28, he would not get the benefit of addition to export profits under third or fourth proviso to sub-section (3) of Section 80HHC, but he would get the benefit of exclusion of a smaller figure from “profits of the business” under explanation (baa) to Section 80HHC of the Act and there is nothing in explanation (baa) to Section 80HHC to show that this benefit of exclusion of a smaller figure from “profits of the business” will not be available to an assessee having an export turnover exceeding Rs.10 crores. In other words, where the export turnover of an assessee exceeds Rs.10 crores, he does not get the benefit of addition of ninety per cent of export incentive under clause (iiid) of Section 28 to his export profits, but he gets a higher figure of profits of the business, which ultimately results in computation of a bigger export profit. The High Court, therefore, was not right in coming to the conclusion that as the assessee did not have the export turnover exceeding Rs.10 crores and as the assessee did not fulfill the conditions set out in the third proviso to Section 80HHC (iii), the assessee was not entitled to a deduction under Section 80HHC on the amount received on transfer of DEPB and with a view to get over this difficulty the assessee was contending that the profits on transfer of DEPB under Section 28 (iiid) would not include the face value of the DEPB. It is a well-settled principle of statutory interpretation of a taxing statute that a subject will be liable to tax and will be entitled to exemption from tax according to the strict language of the taxing statute and if as per the words used in explanation (baa) to Section 80HHC read with the words used in clauses (iiid) and (iiie) of Section 28, the assessee was entitled to a deduction under Section 80HHC on export profits, the benefit of such deduction cannot be denied to the assessee.
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### Explanation:
under clause (iiib) of Section 28 of the Act, the difference between the sale value and the face value of the DEPB will fall under clause (iiid) of Section 28 of the Act and the High Court was not right in taking the view in the impugned judgment that the entire sale proceeds of the DEPB realized on transfer of the DEPB and not just the difference between the sale value and the face value of the DEPB represent profit on transfer of the DEPB.15. We may now point out the errors in the impugned judgment of the High Court. The first reason given by the High Court is that clause (iiia) of Section 28 treats profits on the sale of an import license as income chargeable to tax and when the license is sold, the entire amount is treated as profits of business under clause (iiia) of Section 28 and thus there is no justification to treat the amount which is received by an exporter on the transfer of the DEPB any differently than the profits which are made on the sale of an import license under clause (iiia) of Section 28 of the Act. In taking the view that when the import license is sold the entire amount is treated as profits of business, the High Court has visualized a situation where the cost of acquiring the import license is nil. The cost of acquiring DEPB, on the other hand, is not nil because the person acquires it by paying customs duty on the import content of the export product and the DEPB which accrues to a person against exports has a cost element in it. Accordingly, when DEPB is sold by a person, his profit on transfer of DEPB would be the sale value of the DEPB less the face value of DEPB which represents the cost of the DEPB. The second reason given by the High Court in the impugned judgment is that under the DEPB scheme, DEPB is given at a percentage of the FOB value of the exports so as to neutralize the incidence of customs duty on the import content of the export products, but the exporter may not himself utilize the DEPB for paying customs duty but may transfer it to someone else and therefore the entire sum received on transfer of DEPB would be covered under clause (iiid) of Section 28. The High Court has failed to appreciate that DEPB represents part of the cost incurred by a person for manufacture of the export product and hence even where the DEPB is not utilized by the exporter but is transferred to another person, the DEPB continues to remain as a cost to the exporter. When, therefore, DEPB is transferred by a person, the entire sum received by him on such transfer does not become his profits. It is only the amount that he receives in excess of the DEPB which represents his profits on transfer of the DEPB.16. The High Court has sought to meet the argument of double taxation made on behalf of the assessees by holding that where the face value of the DEPB was offered to tax in the year in which the credit accrued to the assessee as business profits, then any further profit arising on transfer of DEPB would be taxed as profits of business under Section 28(iiid) in the year in which the transfer of DEPB took place. This view of the High Court, in our considered opinion, is contrary to the language of Section 28 of the Act under whiched or receivable by any person against exports such as the DEPB andon transfer of theare treated as two separate items of income under clauses (iiib) and (iiid) of Section 28. If accrual of DEPB and profit on transfer of DEPB are treated as two separate items of income chargeable to tax under clauses (iiib) and (iiid) of Section 28 of the Act, then DEPB will be chargeable as income under clause (iiib) of Section 28 in the year in which the person applies for DEPB credit against the exports and the profiton transfer of theDEPB by that person will be chargeable as income under clause (iiid) of Section 28 in his hands in the year in which he makes the transfer. Accordingly, if in the same previous year the DEPB accrues to a person and he also earns profiton transfer of theDEPB, the DEPB will be business profits under clause (iiib) and the difference between the sale value and the DEPB (face value) would be the profits on the transfer of DEPB under clause (iiid) for the same assessment year. Where, however, the DEPB accrues to a person in one previous year and the transfer of DEPB takes place in a subsequent previous year, then the DEPB will be chargeable as income of the person for the first assessment year chargeable under clause (iiib) of Section 28 and the difference between the DEPB credit and the sale value of the DEPB credit would be income in his hands for the subsequent assessment year chargeable under clause (iiid) of Section 28. The interpretation suggested by us, therefore, does not lead to double taxation of the same income, which the legislature must be presumed to have avoided.17. The High Court has held that as the assessees had an export turnover exceeding Rs.10 crores and did not fulfill the conditions set out in the third proviso to Section 80HHC(3) of the Act, the assessees were not entitled to a deduction under Section 80HHC on the amount received on transfer of DEPB and to get over this difficulty the assessees have contended that the profits on transfer of DEPB in Section 28(iiid) would not include the face value of the DEPB so that the assessees get a deduction under Section 80HHC on the face value of the DEPB. This finding of the High Court is not based on an accurate understanding scheme of Section 80HHC of the Act.
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