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Vishvash Machhinder Saptal Vs. The State of Union Territory Through Daman Police Station | Duly proved contradiction cannot be used for corroborating the evidence. Unfortunately, the learned trial Court committed an error on this aspect of appreciation of evidence and used the duly proved contradiction as a substantive peace of evidence for convicting the accused.22. PW3 Vilash Shinde has not spoken that earlier to the incident of assault on deceased Naresh Pandey, he had been to the Machine Room to tell Naresh Pandey that he is not giving good production and he should change trend for giving good quality production or else he would be removed. Thus evidence on this aspect coming on record through PW1 Sunilkumar remained uncorroborated. Even though PW3 Vilash Shinde has not fully supported the prosecution case, even contradiction to this effect from his former statement is not brought on record by the prosecution. In other words, it goes to show that PW3 Vilash Shinde had even not made any such former statement regarding this incident deposed by PW1 Sunilkumar. Thus evidence of PW1 Sunilkumar on this material aspect remained uncorroborated.23. Statement of PW3 Vilash Shinde goes that he has not seen the incident of assault on deceased Naresh Pandey but he has reached the spot after that incident. Evidence of PW3 Vilash Shinde as such does not corroborate evidence of PW1 Sunilkumar regarding the actual assault.24. PW4 Meena Patel and PW5 Shantabai Dhamal are the employees of M/s.V.P.Plastics, who at the relevant time were working in the same section i.e. Finishing Section. Their congruous evidence shows that after hearing the shouts, they reached the Machine Section and found deceased Naresh Pandey lying on the floor with bleeding injuries. They both unanimously deposed that accused Vishvash Saptal and PW1 Sunilkumar were present in the Machine Room. However, both of them have stated that PW3 Vilash Shinde was not seen by them on the spot of incident. Though both these witnesses were cross-examined by the prosecution, nothing came on record in their cross-examination to infer guilt of the accused in the crime in question. Thus, evidence of both these witnesses is not useful to corroborate version of PW1 Sunilkumar in respect of the alleged assault. 25. PW7 Arun Shukhla is a panch witness to the spot panchanama and his version read with the contemporaneous document i.e. spot panchanama Exhibit-20 goes to show that incident happened in Machine Section / Room where a wooden log of 3 to 3.5 ft. length was found and it was seized by the police. Similar is the evidence of PW8 Hiralal Chouhan, who recorded the spot panchanama. The seized wooden log was subjected to the chemical analysis and human blood of O group was found on it. Serological Examination Report goes to show that blood of deceased Naresh Pandey as well as that of accused Vishvash Saptal belong to O group. That apart, mere finding of blood of the deceased or that of the accused on the wooden log cannot be said to be incriminating circumstances against the accused. The other part of evidence of PW8 Hiralal Chouchan only explains the line of investigation conducted by him.26. It is thus clear that direct evidence as well as other evidence produced by the prosecution in support of the charge levelled against the accused is not at all reliable, cogent as well as trustworthy. In such situation, the motive, if any, with the accused to commit the crime in question becomes somewhat significant. True it is that normally there exists a motive for every crime and proof of its existence is not necessary for conviction but when direct evidence adduced by the prosecution cannot be said to be free from doubt, then, duly proved motive can be considered as a circumstance which is relevant for assessing the evidence. The motive is that which impels the accused to commit a crime. In the instance case, as per version of PW1 Sunilkumar, after PW3 Vilash Shinde, the Supervisor left the Machine Section after giving a warning to deceased Naresh Pandey, accused Vishvash came and after talking with deceased Naresh Pandey killed him by assaulting him. Evidence of PW1 Sunilkumar is conspicuously silent about the subject of conversation between the deceased and the accused. Entire evidence of the prosecution does not reflect any motive with the accused to eliminate the deceased. As such, in the case in hand, motive is shrouded in mystery.27. Careful and meticulous reading of evidence of prosecution, thus indicates that evidence adduced by the prosecution is not of the standard required in a criminal trial for basing conviction. Upon meticulous examination of the evidence in this case, a reasonable doubt grows out that the accused might not have committed the offence in question. With certainty, we are not in a position to give a finding that the accused must have committed murder of deceased Naresh Pandey. It is a fundamental rule of criminal jurisprudence that before a conviction could be sustained, the prosecution has to establish that evidence on record unerringly points out that its case is free from all reasonable doubt. The accused cannot be convicted on the premises that case of the prosecution may be true. In the case in hand, evidence of PW1 Sunilkumar only indicates that the accused might have committed the crime in question but with all certainty, we are not unable to persuade ourself that it is the accused and the accused only who had murdered deceased Naresh Pandey. Thus, for the reasons stated in the foregoing paras, we are of the considered view that findings of the learned trial Court for inferring the guilt of the accused cannot be sustained. On re-appreciation of evidence on record, we have recorded the compelling and substantial reasons for interfering with the impugned judgment and order of conviction. On reviewing the entire evidence of the prosecution, we are of the considered opinion that the accused is entitled to the benefit of doubt and as such, the impugned judgment and order of conviction and sentenced needs to be quashed and set aside. Hence the order:-( | 1[ds]8. At the outset, it needs to be mentioned here that thoughPW3 Vilash Shindeis stated to be an eye witness to the alleged incident of assault by the accused, he has not supported the prosecution case in respect of the alleged assault. PW4 Meena and PW5 Shantaben were employees working in the Finishing Section and they reached the spot after the incident in question. Both these witnesses are not eye witnesses to the incident in question. Therefore, now only evidence available on record to give an eye witness account of the incident is that of PW1 Sunilkumar.9. Trial is an attempt to ascertain guilt or innocence of the accused and for reaching to a correct conclusion, the Court is required to adopt a rational approach by evaluating the evidence by its intrinsic worth. Crime might have been committed in presence of many witnesses but there are cases where the testimony of a single witness is only available in proof of the crime. As a general rule, the Court can and may act on the testimony of a single witness even though it is without corroboration. Section 134 of the Evidence Act, 1872 makes it clear that our legal system does not insists of plurality of witnesses and, therefore, the credibility of a sole witness can outweigh the testimony of number of other witnesses of indifferent and hostile character. If the testimony of such a single witness is found by the Court to be wholly reliable, there is no legal impediment to the conviction of the accused on such proof. In the present case, this Court is required to weigh carefully the testimony of single witness PW1 Sunilkumar and if it is satisfied that evidence of this witness is reliable and free from all taints leading to suspicion, his version can be accepted and by confirming the conviction recorded by the trial Court, the appeal can be dismissed. That apart, in the case in hand, we will have to scrutinize evidence of PW1 Sunilkumarsole eye witness to the alleged incident carefully and minutely in order to judge whether he passes the test of reliability and trustworthiness for basing conviction in respect of major offence as he seems to be an interested witness. Let us, therefore, scrutinize his evidence in detail.10. It is in evidence of PW1 Sunilkumar that he as well as deceased Naresh Pandey were working in Machine Section / Room of M/s.V.P.Plastic Company. PW1 Sunilkumar has stated that he was working as a helper. His testimony is conspicuously silent about the capacity in which deceased Naresh Pandey was working in the Machine Section. However, his evidence goes to show that he used to work on a big machine in the Machine Section which is located in the middle whereas deceased Naresh Pandey was working on a small machine. PW1 Sunilkumar has not claimed that accused Vishvash Saptal who was Machine Operator, used to work in the same Machine Section / Room of M/s.V.P.Plastic Company. On the contrary, material elicited inof PW1 Sunilkumar goes to show that on 13th September, 2007, he was working on one out of the three big machine whereas deceased Naresh Pandey was working on one of the total seven machines in the Machine Section / Room. Evidence of PW1 Sunilkumar goes to show that out of total seven machines in that section, only two machines which were occupied by them were functioning and rest of the machines were not functioning. This goes to show that accused Vishvash Saptal was not working in Machine Section / Room on the day of the incident i.e. 13th September, 2007. At what place accused Vishvash Saptal was working on 13th September, 2007 is as aspect shrouded in mystery, as entire prosecution evidence does not show the exact place of work of accused Vishvash Saptal on that day of incident. Even evidence of alleged eye witnessPW1 Sunilkumar isconspicuously silent on this aspect.At the outset, it needs to be mentioned here that thoughPW3 Vilash Shindeis stated to be an eye witness to the alleged incident of assault by the accused, he has not supported the prosecution case in respect of the alleged assault. PW4 Meena and PW5 Shantaben were employees working in the Finishing Section and they reached the spot after the incident in question. Both these witnesses are not eye witnesses to the incident in question. Therefore, now only evidence available on record to give an eye witness account of the incident is that of PW1 Sunilkumar.9. Trial is an attempt to ascertain guilt or innocence of the accused and for reaching to a correct conclusion, the Court is required to adopt a rational approach by evaluating the evidence by its intrinsic worth. Crime might have been committed in presence of many witnesses but there are cases where the testimony of a single witness is only available in proof of the crime. As a general rule, the Court can and may act on the testimony of a single witness even though it is without corroboration. Section 134 of the Evidence Act, 1872 makes it clear that our legal system does not insists of plurality of witnesses and, therefore, the credibility of a sole witness can outweigh the testimony of number of other witnesses of indifferent and hostile character. If the testimony of such a single witness is found by the Court to be wholly reliable, there is no legal impediment to the conviction of the accused on such proof. In the present case, this Court is required to weigh carefully the testimony of single witness PW1 Sunilkumar and if it is satisfied that evidence of this witness is reliable and free from all taints leading to suspicion, his version can be accepted and by confirming the conviction recorded by the trial Court, the appeal can be dismissed. That apart, in the case in hand, we will have to scrutinize evidence of PW1 Sunilkumarsole eye witness to the alleged incident carefully and minutely in order to judge whether he passes the test of reliability and trustworthiness for basing conviction in respect of major offence as he seems to be an interested witness. Let us, therefore, scrutinize his evidence in detail.10. It is in evidence of PW1 Sunilkumar that he as well as deceased Naresh Pandey were working in Machine Section / Room of M/s.V.P.Plastic Company. PW1 Sunilkumar has stated that he was working as a helper. His testimony is conspicuously silent about the capacity in which deceased Naresh Pandey was working in the Machine Section. However, his evidence goes to show that he used to work on a big machine in the Machine Section which is located in the middle whereas deceased Naresh Pandey was working on a small machine. PW1 Sunilkumar has not claimed that accused Vishvash Saptal who was Machine Operator, used to work in the same Machine Section / Room of M/s.V.P.Plastic Company. On the contrary, material elicited inof PW1 Sunilkumar goes to show that on 13th September, 2007, he was working on one out of the three big machine whereas deceased Naresh Pandey was working on one of the total seven machines in the Machine Section / Room. Evidence of PW1 Sunilkumar goes to show that out of total seven machines in that section, only two machines which were occupied by them were functioning and rest of the machines were not functioning. This goes to show that accused Vishvash Saptal was not working in Machine Section / Room on the day of the incident i.e. 13th September, 2007. At what place accused Vishvash Saptal was working on 13th September, 2007 is as aspect shrouded in mystery, as entire prosecution evidence does not show the exact place of work of accused Vishvash Saptal on that day of incident. Even evidence of alleged eye witnessPW1 Sunilkumar isconspicuously silent on thisis well settled legal proposition that evidence of a prosecution witness cannot be rejected in toto merely because the prosecution has chosen to treat him as a hostile witness andhim. Evidence of such witness cannot be treated as effaced or washed off from the record. Evidence of such witness can be accepted to the extent his version is found to be dependable on the careful scrutiny thereof. That part of evidence of such hostile witness which truthfully supports the prosecution case can be accepted. In the case in hand PW3 Vilash Sinde has deposed that on 13th September, 2007 he as well as PW1 Sunilkumar and deceased Naresh Pandey were present in the factory. As per version ofPW1 Sunilkumar and deceased Naresh Pandey were working in the Machine Working Room.PW3 Vilash Shindehas testified that at the time of incident he was at the neighbouring plant and after hearing shouts from the Machine Room within 2 or 4 minutes he reached the Machine Room. This witness further stated that he found Naresh Pandey lying on the floor with bleeding injuries and PW1 Sunilkumar as well as accused Vishvash were present in that Room at that time. Thereafter, this witness has not supported the prosecution case and he wasby the learned Additional Public Prosecutor. He was confronted with his police statement recorded under section 161 of the Code of Criminal Procedure, 1973 and contradiction from his former statement came to be marked as A during theOn due proof of the said contradiction through evidence ofPW8 Harilal Chouhan, PSI,It is thus clear that in order to seek corroboration to the version of the prosecution for convicting the appellant accused, the learned Sessions Judge has relied on duly proved contradictionbrought on record from the evidence ofe. Thisduly proved contradiction to the effect thatPW3 Vilash Shindehad seen the accused with wooden log in his hand andPW3 Vilash Shindehad snatched that wooden log from the accused and threw it, is virtually used it as substantive evidence by the learned Sessions Judge for recording conviction by using it as a piece of admissible evidence to corroborate the case of the prosecution against the appellant accused. It is well settled that though the contradiction is proved through the evidence of the Investigating Officer, that does not translate the contradiction into substantive evidence and can at the most impeach the credibility of the witness by throwing doubt on his version. Statement recorded under section 161 of the Code of Criminal Procedure, 1973 is not and cannot be treated as substantive evidence. It needs to be reiterated that duly proved contradictions can only make substantive evidence of such witness doubtful. Duly proved contradiction cannot be used for corroborating the evidence. Unfortunately, the learned trial Court committed an error on this aspect of appreciation of evidence and used the duly proved contradiction as a substantive peace of evidence for convicting the accused.It is thus clear that direct evidence as well as other evidence produced by the prosecution in support of the charge levelled against the accused is not at all reliable, cogent as well as trustworthy. In such situation, the motive, if any, with the accused to commit the crime in question becomes somewhat significant. True it is that normally there exists a motive for every crime and proof of its existence is not necessary for conviction but when direct evidence adduced by the prosecution cannot be said to be free from doubt, then, duly proved motive can be considered as a circumstance which is relevant for assessing the evidence. The motive is that which impels the accused to commit a crime. In the instance case, as per version of PW1 Sunilkumar, aftere, theSupervisor left the Machine Section after giving a warning to deceased Naresh Pandey, accused Vishvash came and after talking with deceased Naresh Pandey killed him by assaulting him. Evidence ofPW1 Sunilkumar isconspicuously silent about the subject of conversation between the deceased and the accused. Entire evidence of the prosecution does not reflect any motive with the accused to eliminate the deceased. As such, in the case in hand, motive is shrouded in mystery.27. Careful and meticulous reading of evidence of prosecution, thus indicates that evidence adduced by the prosecution is not of the standard required in a criminal trial for basing conviction. Upon meticulous examination of the evidence in this case, a reasonable doubt grows out that the accused might not have committed the offence in question. With certainty, we are not in a position to give a finding that the accused must have committed murder of deceased Naresh Pandey. It is a fundamental rule of criminal jurisprudence that before a conviction could be sustained, the prosecution has to establish that evidence on record unerringly points out that its case is free from all reasonable doubt. The accused cannot be convicted on the premises that case of the prosecution may be true. In the case in hand, evidence of PW1 Sunilkumar only indicates that the accused might have committed the crime in question but with all certainty, we are not unable to persuade ourself that it is the accused and the accused only who had murdered deceased Naresh Pandey. Thus, for the reasons stated in the foregoing paras, we are of the considered view that findings of the learned trial Court for inferring the guilt of the accused cannot be sustained. Onof evidence on record, we have recorded the compelling and substantial reasons for interfering with the impugned judgment and order of conviction. On reviewing the entire evidence of the prosecution, we are of the considered opinion that the accused is entitled to the benefit of doubt and as such, the impugned judgment and order of conviction and sentenced needs to be quashed and set aside. | 1 | 6,876 | 2,429 | ### 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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Duly proved contradiction cannot be used for corroborating the evidence. Unfortunately, the learned trial Court committed an error on this aspect of appreciation of evidence and used the duly proved contradiction as a substantive peace of evidence for convicting the accused.22. PW3 Vilash Shinde has not spoken that earlier to the incident of assault on deceased Naresh Pandey, he had been to the Machine Room to tell Naresh Pandey that he is not giving good production and he should change trend for giving good quality production or else he would be removed. Thus evidence on this aspect coming on record through PW1 Sunilkumar remained uncorroborated. Even though PW3 Vilash Shinde has not fully supported the prosecution case, even contradiction to this effect from his former statement is not brought on record by the prosecution. In other words, it goes to show that PW3 Vilash Shinde had even not made any such former statement regarding this incident deposed by PW1 Sunilkumar. Thus evidence of PW1 Sunilkumar on this material aspect remained uncorroborated.23. Statement of PW3 Vilash Shinde goes that he has not seen the incident of assault on deceased Naresh Pandey but he has reached the spot after that incident. Evidence of PW3 Vilash Shinde as such does not corroborate evidence of PW1 Sunilkumar regarding the actual assault.24. PW4 Meena Patel and PW5 Shantabai Dhamal are the employees of M/s.V.P.Plastics, who at the relevant time were working in the same section i.e. Finishing Section. Their congruous evidence shows that after hearing the shouts, they reached the Machine Section and found deceased Naresh Pandey lying on the floor with bleeding injuries. They both unanimously deposed that accused Vishvash Saptal and PW1 Sunilkumar were present in the Machine Room. However, both of them have stated that PW3 Vilash Shinde was not seen by them on the spot of incident. Though both these witnesses were cross-examined by the prosecution, nothing came on record in their cross-examination to infer guilt of the accused in the crime in question. Thus, evidence of both these witnesses is not useful to corroborate version of PW1 Sunilkumar in respect of the alleged assault. 25. PW7 Arun Shukhla is a panch witness to the spot panchanama and his version read with the contemporaneous document i.e. spot panchanama Exhibit-20 goes to show that incident happened in Machine Section / Room where a wooden log of 3 to 3.5 ft. length was found and it was seized by the police. Similar is the evidence of PW8 Hiralal Chouhan, who recorded the spot panchanama. The seized wooden log was subjected to the chemical analysis and human blood of O group was found on it. Serological Examination Report goes to show that blood of deceased Naresh Pandey as well as that of accused Vishvash Saptal belong to O group. That apart, mere finding of blood of the deceased or that of the accused on the wooden log cannot be said to be incriminating circumstances against the accused. The other part of evidence of PW8 Hiralal Chouchan only explains the line of investigation conducted by him.26. It is thus clear that direct evidence as well as other evidence produced by the prosecution in support of the charge levelled against the accused is not at all reliable, cogent as well as trustworthy. In such situation, the motive, if any, with the accused to commit the crime in question becomes somewhat significant. True it is that normally there exists a motive for every crime and proof of its existence is not necessary for conviction but when direct evidence adduced by the prosecution cannot be said to be free from doubt, then, duly proved motive can be considered as a circumstance which is relevant for assessing the evidence. The motive is that which impels the accused to commit a crime. In the instance case, as per version of PW1 Sunilkumar, after PW3 Vilash Shinde, the Supervisor left the Machine Section after giving a warning to deceased Naresh Pandey, accused Vishvash came and after talking with deceased Naresh Pandey killed him by assaulting him. Evidence of PW1 Sunilkumar is conspicuously silent about the subject of conversation between the deceased and the accused. Entire evidence of the prosecution does not reflect any motive with the accused to eliminate the deceased. As such, in the case in hand, motive is shrouded in mystery.27. Careful and meticulous reading of evidence of prosecution, thus indicates that evidence adduced by the prosecution is not of the standard required in a criminal trial for basing conviction. Upon meticulous examination of the evidence in this case, a reasonable doubt grows out that the accused might not have committed the offence in question. With certainty, we are not in a position to give a finding that the accused must have committed murder of deceased Naresh Pandey. It is a fundamental rule of criminal jurisprudence that before a conviction could be sustained, the prosecution has to establish that evidence on record unerringly points out that its case is free from all reasonable doubt. The accused cannot be convicted on the premises that case of the prosecution may be true. In the case in hand, evidence of PW1 Sunilkumar only indicates that the accused might have committed the crime in question but with all certainty, we are not unable to persuade ourself that it is the accused and the accused only who had murdered deceased Naresh Pandey. Thus, for the reasons stated in the foregoing paras, we are of the considered view that findings of the learned trial Court for inferring the guilt of the accused cannot be sustained. On re-appreciation of evidence on record, we have recorded the compelling and substantial reasons for interfering with the impugned judgment and order of conviction. On reviewing the entire evidence of the prosecution, we are of the considered opinion that the accused is entitled to the benefit of doubt and as such, the impugned judgment and order of conviction and sentenced needs to be quashed and set aside. Hence the order:-(
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working on 13th September, 2007 is as aspect shrouded in mystery, as entire prosecution evidence does not show the exact place of work of accused Vishvash Saptal on that day of incident. Even evidence of alleged eye witnessPW1 Sunilkumar isconspicuously silent on thisis well settled legal proposition that evidence of a prosecution witness cannot be rejected in toto merely because the prosecution has chosen to treat him as a hostile witness andhim. Evidence of such witness cannot be treated as effaced or washed off from the record. Evidence of such witness can be accepted to the extent his version is found to be dependable on the careful scrutiny thereof. That part of evidence of such hostile witness which truthfully supports the prosecution case can be accepted. In the case in hand PW3 Vilash Sinde has deposed that on 13th September, 2007 he as well as PW1 Sunilkumar and deceased Naresh Pandey were present in the factory. As per version ofPW1 Sunilkumar and deceased Naresh Pandey were working in the Machine Working Room.PW3 Vilash Shindehas testified that at the time of incident he was at the neighbouring plant and after hearing shouts from the Machine Room within 2 or 4 minutes he reached the Machine Room. This witness further stated that he found Naresh Pandey lying on the floor with bleeding injuries and PW1 Sunilkumar as well as accused Vishvash were present in that Room at that time. Thereafter, this witness has not supported the prosecution case and he wasby the learned Additional Public Prosecutor. He was confronted with his police statement recorded under section 161 of the Code of Criminal Procedure, 1973 and contradiction from his former statement came to be marked as A during theOn due proof of the said contradiction through evidence ofPW8 Harilal Chouhan, PSI,It is thus clear that in order to seek corroboration to the version of the prosecution for convicting the appellant accused, the learned Sessions Judge has relied on duly proved contradictionbrought on record from the evidence ofe. Thisduly proved contradiction to the effect thatPW3 Vilash Shindehad seen the accused with wooden log in his hand andPW3 Vilash Shindehad snatched that wooden log from the accused and threw it, is virtually used it as substantive evidence by the learned Sessions Judge for recording conviction by using it as a piece of admissible evidence to corroborate the case of the prosecution against the appellant accused. It is well settled that though the contradiction is proved through the evidence of the Investigating Officer, that does not translate the contradiction into substantive evidence and can at the most impeach the credibility of the witness by throwing doubt on his version. Statement recorded under section 161 of the Code of Criminal Procedure, 1973 is not and cannot be treated as substantive evidence. It needs to be reiterated that duly proved contradictions can only make substantive evidence of such witness doubtful. Duly proved contradiction cannot be used for corroborating the evidence. Unfortunately, the learned trial Court committed an error on this aspect of appreciation of evidence and used the duly proved contradiction as a substantive peace of evidence for convicting the accused.It is thus clear that direct evidence as well as other evidence produced by the prosecution in support of the charge levelled against the accused is not at all reliable, cogent as well as trustworthy. In such situation, the motive, if any, with the accused to commit the crime in question becomes somewhat significant. True it is that normally there exists a motive for every crime and proof of its existence is not necessary for conviction but when direct evidence adduced by the prosecution cannot be said to be free from doubt, then, duly proved motive can be considered as a circumstance which is relevant for assessing the evidence. The motive is that which impels the accused to commit a crime. In the instance case, as per version of PW1 Sunilkumar, aftere, theSupervisor left the Machine Section after giving a warning to deceased Naresh Pandey, accused Vishvash came and after talking with deceased Naresh Pandey killed him by assaulting him. Evidence ofPW1 Sunilkumar isconspicuously silent about the subject of conversation between the deceased and the accused. Entire evidence of the prosecution does not reflect any motive with the accused to eliminate the deceased. As such, in the case in hand, motive is shrouded in mystery.27. Careful and meticulous reading of evidence of prosecution, thus indicates that evidence adduced by the prosecution is not of the standard required in a criminal trial for basing conviction. Upon meticulous examination of the evidence in this case, a reasonable doubt grows out that the accused might not have committed the offence in question. With certainty, we are not in a position to give a finding that the accused must have committed murder of deceased Naresh Pandey. It is a fundamental rule of criminal jurisprudence that before a conviction could be sustained, the prosecution has to establish that evidence on record unerringly points out that its case is free from all reasonable doubt. The accused cannot be convicted on the premises that case of the prosecution may be true. In the case in hand, evidence of PW1 Sunilkumar only indicates that the accused might have committed the crime in question but with all certainty, we are not unable to persuade ourself that it is the accused and the accused only who had murdered deceased Naresh Pandey. Thus, for the reasons stated in the foregoing paras, we are of the considered view that findings of the learned trial Court for inferring the guilt of the accused cannot be sustained. Onof evidence on record, we have recorded the compelling and substantial reasons for interfering with the impugned judgment and order of conviction. On reviewing the entire evidence of the prosecution, we are of the considered opinion that the accused is entitled to the benefit of doubt and as such, the impugned judgment and order of conviction and sentenced needs to be quashed and set aside.
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THE CHAIRMAN, STATE BANK OF INDIA AND ANOTHER Vs. M.J. JAMES | sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance,(See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax (1992) 194 ITR 584 ) which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention.(See Krishan Dev v. Smt. Ram Piari AIR 1964 HP 34 ) Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and inspite of the infringement takes no action mirroring acceptance.(See Introduction, UN Mitra, Tagore Law Lectures – Law of Limitation and Prescription, Volume I, 14TH Edition, 2016.) However, acquiescence will not apply if lapse of time is of no importance or consequence. 30. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person.(Refer Footnote 18 ) Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation. 31. The questions of prejudice, change of position, creation of third-party rights or interests on the part of the party seeking relief are important and relevant aspects as delay may obscure facts, encourage dubious claims, and may prevent fair and just adjudication. Often, relevant and material evidence go missing or are not traceable causing prejudice to the opposite party. It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken up to gain any advantage and benefit, which aspects have been noticed in M/s Dehri Rohtas Light Rly. Co. Ltd. v. District Board, Bhojpur and Others((1992) 2 SCC 598 ) and State of Maharashtra v. Digambar. (1995) 4 SCC 683 ) These facets, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. These have bearing on grant and withholding of relief. Therefore, we have factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment. 32. The relief as granted certainly has serious financial repercussions and would also prevent the appellants from taking further action, which aspect has been noticed, though not finally determined in the impugned judgment. The studied silence of the respondent, who did not correspond or make any representation for nine years, was with an ulterior motive as he wanted to take benefit of the slipup though he had suffered dismissal. The courts can always refuse to grant relief to a litigant if it considers that grant of relief sought is likely to cause substantial hardship or substantial prejudice to the opposite side or would be detrimental to good administration.(R. (on the application of Parkyn) v. Restormel BC [2001] EWCA Civ 330 ) This principle of good administration is independent of hardship, or prejudice to the rights of the third parties and does not require specific evidence that this has in fact occurred, though in relation to withholding relief some evidence may be required. Relief should not be denied for mere inconvenience but when the difficulty caused to the decision maker approaches impracticability or when there is an overriding need for finality and certainty.(R. v. Monopolies and Mergers Commission Ex p. Argyll Group [1986] 1 W.L.R. 763.) 33. Learned counsel for the respondent had submitted that the appeal was not dismissed on the ground of delay and laches by the Chief General Manager vide order dated 23.01.1999. This aspect has also appealed to the Single Judge and the Division Bench. We do not agree with the aforesaid views for several reasons. The respondent had approached the High Court through a writ petition in O.P. No. 19807/1998 G, whereby directions were issued vide order dated 14.10.1998 for consideration and disposal of the appeal, which, it is apparent, was interpreted as a direction that the appeal should be decided on merits. One can appreciate the predicament of the Chief General Manager who had to adjudicate the appeal in terms of the direction of the Constitutional Court and, therefore, his reluctance to dismiss the appeal on the ground of delay and laches. The appeal was dismissed on merits. These aspects cannot be ignored as the exercise of writ jurisdiction is always discretionary which has to keep in view the conduct of the parties. 34. By the order dated 04.12.2009, the dues payable to the respondent in terms of the impugned judgment were released to him on furnishing security to the satisfaction of the Chief General Manager. During the course of hearing, it was stated that the amount released has been kept in a fixed deposit. The payment released is directed to be returned and restituted to the appellant bank without interest within a period of six weeks from the date of pronouncement of this judgment. However, in case payment is not made within the aforesaid period, the respondent would be liable to pay interest @ 8% per annum from the date of this judgment till actual payment is made. In addition, the appellants would be entitled to enforce the security furnished by the respondent. | 1[ds]18. The judgment under challenge seems to have overlooked the implications of clause 2(e) of the Service Code. The objective of definition clauses is to avoid frequent repetition in describing the subject matter to which the word or expression is intended to apply.(Nahalchand Laloochand Private Ltd. v. Panchali Coop. Housing Society Ltd., (2010) 9 SCC 536 ) This is useful when the same word or expression is used more than once in the same enactment.(Bhagwati Developers Pvt. Ltd. v. Peerless General Finance and Investment Co. Ltd. & Anr., (2013) 9 SCC 584 ) The raison detre behind the definition clause is that while interpreting a provision, the defined word or expression would carry the same meaning as the defined words or expression are employed and used by the maker in the sense appropriate to the definition. The definition can be with the intent to attract a meaning already established by law; expand the meaning by adding a meaning; or narrow the meaning by exclusion.(Part XII, Rules of Construction Laid Down by Statute, Sections 199 and 200 at page 517, Bennion on Statutory Interpretation, Indian Reprint, Sixth Edition.) This general rule of construction laid down by the enactment is subject to the context. Albeit, the interpreter, to deviate from the defined meaning, should record reasons to show that the word/expression in that particular provision carries a different meaning. Contrary context is not to be assumed or accepted easily, in the absence of indication and reason to differ from the defined meaning. The repugnancy will arise when the definition meaning does not agree with the subject in the context. Repugnancy is not indicated and does not arise in the context of Clause 22(ix)(a) of Chapter VIII of the Service Code by mere absence of article the in Clause 22(ix)(a) before the word bank, as held in the impugned judgment. This is too weak and feeble a reason to discard and over-ride the defined meaning which is the general norm, and not an exception that has to be justified. Deficiency of the does not disclose abandonment of the express definition of bank vide clause 2(e) of the Service Code. Absurdity or even ambiguity is not obvious or even palpable. The word bank in Clause 22(ix)(a) can be validly and effectively interpreted as per the definition clause as referring to the Bank of Cochin Ltd., and not any or other bank(s).19. Therefore, the reasoning solely predicated on non-existence of article the before bank in Clause 22(ix)(a) of the Service Code does not justify inference of repugnancy in the context of the subject- matter, including the intent behind Clause 22(ix)(a) of the Service Code.20. Now, we need to advert our attention on the aspect of the choice of representation in domestic inquiry. Both sides rely on the dictum of this Court in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi (1993) 2 SCC 115 and National Seeds Corporation Ltd. v. K.V. Rama Reddy, (2006) 11 SCC 645 which hold that the right to be represented by a third person in domestic inquiries/tribunals is based upon the precept that it is not desirable to restrict right of representation by a counsel or agent of ones choice. The ratio does not tantamount to acceptance of the proposition that such a right is an element of principles of natural justice, and its denial would immediately invalidate the inquiry. Representations are often restricted by a law, such as under Section 36 of the Industrial Disputes Act, 1947, as also by certified Standing Orders. The aforementioned two decisions ascribe to catena of decisions, including English case law on this subject, which accept that the right to be legally represented depends on how the rules govern such representation. Further, if the rules are silent, the party has no absolute right to be legally represented. However, the entitlement of a fair hearing is not to be dispensed with. What fairness requires would depend upon the nature of the investigation and the consequences it may have on the persons affected by it.This Court in Crescent Dyes and Chemicals Ltd. (supra), observed as follows:17. It is, therefore, clear from the above case-law that the right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquents right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent…Thus, the right to be represented by a counsel or agent of ones choice is not an absolute right but one which can be controlled, restricted, or regulated by law, rules, or regulations. However, if the charge is of severe and complex nature, then the request to be represented through a counsel or agent should be considered. The above proposition flows from the entitlement of fair hearing, which is applicable in judicial as well as quasi-judicial decisions.23. Legal position on the importance to show prejudice to get relief is also required to be stated. In State Bank of Patiala and Others v. S.K. Sharma, (1996) 3 SCC 364 a Division Bench of this Court distinguished between adequate opportunity and no opportunity at all and held that the prejudice exception operates more specifically in the latter case. This judgment also speaks of procedural and substantive provisions of law embodying the principles of natural justice which, when infracted, must lead to prejudice being caused to the litigant in order to afford him relief. The principle was expressed in the following words:32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise.24. Earlier decision in M.C. Mehta v. Union of India and Others, (1999) 6 SCC 237 examined the expression admitted and undisputable facts, as also divergence of legal opinion on whether it is necessary to show slight proof or real likelihood of prejudice; or legal effect of an open and shut case, with reference to the observations in S.L. Kapoor v. Jagmohan and Others, (1980) 4 SCC 379 and elucidates in the following words:22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of real substance or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corpn. (per Lord Reid and Lord Wilberforce), Glynn v. Keele University, Cinnamond v. British Airports Authority and other cases where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates court, ex p Fannaran (Admn LR at p. 358) (see de Smith, Suppl. p. 89) (1998) where Straughton, L.J. held that there must be demonstrable beyond doubt that the result would have been different. Lord Woolf in Lloyd v. McMahon (WLR at p. 862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is real likelihood — not certainty — of prejudice. On the other hand, Garner Administrative Law (8th Edn., 1996, pp. 271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin, Megarry, J. in John v. Rees stating that there are always open and shut cases and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J. has said that the useless formality theory is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that convenience and justice are often not on speaking terms. More recently Lord Bingham has deprecated the useless formality theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton [1990 IRLR 344] by giving six reasons. (See also his article Should Public Law Remedies be Discretionary? 1991 PL, p. 64.) A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice, Substance or Shadow by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-making authority de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their discretion, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, Rajendra Singh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.23. We do not propose to express any opinion on the correctness or otherwise of the useless formality theory and leave the matter for decision in an appropriate case, inasmuch as, in the case before us, admitted and indisputable facts show that grant of a writ will be in vain as pointed out by Chinnappa Reddy, J.26. In the light of the aforesaid legal position, we have examined the facts of the present case and have referred to the inquiry proceedings in some detail. The respondent was aware that his request to be represented by a representative of his own choice had been rejected. Even then he took time and decided not to file an appeal before the Board of Directors against the order of the inquiry officer rejecting his request. He allowed the inquiry proceedings to continue and then filed an application for production of documents. When asked about relevancy, his stance was he had his own reasons on how the documents were relevant. In spite of ample opportunity, the respondent did not adduce evidence or examine witnesses, and abruptly stood up and walked out. Observations and findings in the disciplinary proceedings on the aspect of irregularities regarding exceeding his authority in the grant of advances, acceptance of discovery bills and the issue of bank guarantees etc. are clear and remain uncontroverted. The respondents defence in the form of alibi that he had followed the oral instructions of the then Chairman and the Director, which is of questionable merit, is to be rejected as unproven. On this aspect somewhat reflecting on merits, the Single Judge had observed that the allegations if proven constitute gross misconduct, warranting punishment of dismissal. The Division Bench has not commented on this aspect, but has made observations assuming prejudice was caused, which reasoning in the light of the ratio elucidated in paragraph nos. 23 to 25 (supra) cannot be sustained. The judgments under challenge do not consider the effect of the defence pleaded by the respondent and whether there was no effective denial. Conduct of the respondent, including the opportunities granted during the departmental proceedings, have gone unnoticed. On the alibi, the respondent did not furnish any details or particulars of cases or instances and had refused to lead evidence. Clause 22(ix)(a), as worded, envisages that an employee against whom disciplinary action is proposed will be served with memorandum of charges, be given sufficient time to prepare and present his explanation and produce evidence which he may wish to render in his defence. He is permitted to appear before the officer conducting the inquiry, cross-examine the witnesses and produce other evidence in his defence. Further, the officer can also be permitted to be defended by a representative, who must be a representative of a registered union/association of bank employees, which, as held above, means an union/association of the employees of the Bank of Cochin and not association of employees of any or other banks. Notably, the provision does not stipulate that the employee requires permission from any authority or the inquiry officer for representation by a representative of a registered union or association of the Bank of Cochin. Such permission is required if an employee wants a lawyer to represent him/her in the disciplinary proceedings. In this case, contrary to the observations in the impugned judgment by the Division Bench, the respondent had never prayed or sought permission to be represented by a lawyer. This is despite the respondent being aware of the professional status of the inquiry officer and the presenting officer.In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case.28. The appeal preferred by the respondent with the Chief General Manager of the State Bank of India on 20.09.1989 had remained unattended for almost nine years. The appellants, it is apparent, simply lost track and forgot that the service appeal was filed or pending. The respondent was never an employee of the appellants bank as his services were terminated on 18.04.1985, nearly four months before the Bank of Cochin, a private Bank, got amalgamated with the State Bank of India. The appellants being at fault must bear the burden and adverse consequences. In Ram Chand and Others v. Union of India and Others (1994) 1 SCC 44 and State of U.P. and Others v. Manohar, (2005) 2 SCC 126 this Court observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India and Others v. Tarsem Singh, (2008) 8 SCC 648 may be continuing cause of action. The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in paragraph 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Others.(1979) 2 SCC 409 Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam and Another v. Jaswant Singh and Another,(2006) 11 SCC 464 after referring to several judgments, has accepted the following elucidation in Halsburys Laws of England:12. The statement of law has also been summarised in Halsburys Laws of England, para 911, p. 395 as follows:In determining whether there has been such delay as to amount to laches, the chief points to be considered are:(i) acquiescence on the claimants part; and(ii) any change of position that has occurred on the defendants part.Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.31. The questions of prejudice, change of position, creation of third-party rights or interests on the part of the party seeking relief are important and relevant aspects as delay may obscure facts, encourage dubious claims, and may prevent fair and just adjudication. Often, relevant and material evidence go missing or are not traceable causing prejudice to the opposite party. It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken up to gain any advantage and benefit, which aspects have been noticed in M/s Dehri Rohtas Light Rly. Co. Ltd. v. District Board, Bhojpur and Others((1992) 2 SCC 598 ) and State of Maharashtra v. Digambar. (1995) 4 SCC 683 ) These facets, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. These have bearing on grant and withholding of relief. Therefore, we have factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment.32. The relief as granted certainly has serious financial repercussions and would also prevent the appellants from taking further action, which aspect has been noticed, though not finally determined in the impugned judgment. The studied silence of the respondent, who did not correspond or make any representation for nine years, was with an ulterior motive as he wanted to take benefit of the slipup though he had suffered dismissal. The courts can always refuse to grant relief to a litigant if it considers that grant of relief sought is likely to cause substantial hardship or substantial prejudice to the opposite side or would be detrimental to good administration.(R. (on the application of Parkyn) v. Restormel BC [2001] EWCA Civ 330 ) This principle of good administration is independent of hardship, or prejudice to the rights of the third parties and does not require specific evidence that this has in fact occurred, though in relation to withholding relief some evidence may be required. Relief should not be denied for mere inconvenience but when the difficulty caused to the decision maker approaches impracticability or when there is an overriding need for finality and certainty.(R. v. Monopolies and Mergers Commission Ex p. Argyll Group [1986] 1 W.L.R. 763.)We do not agree with the aforesaid views for several reasons. The respondent had approached the High Court through a writ petition in O.P. No. 19807/1998 G, whereby directions were issued vide order dated 14.10.1998 for consideration and disposal of the appeal, which, it is apparent, was interpreted as a direction that the appeal should be decided on merits. One can appreciate the predicament of the Chief General Manager who had to adjudicate the appeal in terms of the direction of the Constitutional Court and, therefore, his reluctance to dismiss the appeal on the ground of delay and laches. The appeal was dismissed on merits. These aspects cannot be ignored as the exercise of writ jurisdiction is always discretionary which has to keep in view the conduct of the parties.34. By the order dated 04.12.2009, the dues payable to the respondent in terms of the impugned judgment were released to him on furnishing security to the satisfaction of the Chief General Manager. During the course of hearing, it was stated that the amount released has been kept in a fixed deposit. The payment released is directed to be returned and restituted to the appellant bank without interest within a period of six weeks from the date of pronouncement of this judgment. However, in case payment is not made within the aforesaid period, the respondent would be liable to pay interest @ 8% per annum from the date of this judgment till actual payment is made. In addition, the appellants would be entitled to enforce the security furnished by the respondent. | 1 | 8,749 | 4,601 | ### Instruction:
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sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance,(See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax (1992) 194 ITR 584 ) which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention.(See Krishan Dev v. Smt. Ram Piari AIR 1964 HP 34 ) Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and inspite of the infringement takes no action mirroring acceptance.(See Introduction, UN Mitra, Tagore Law Lectures – Law of Limitation and Prescription, Volume I, 14TH Edition, 2016.) However, acquiescence will not apply if lapse of time is of no importance or consequence. 30. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person.(Refer Footnote 18 ) Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation. 31. The questions of prejudice, change of position, creation of third-party rights or interests on the part of the party seeking relief are important and relevant aspects as delay may obscure facts, encourage dubious claims, and may prevent fair and just adjudication. Often, relevant and material evidence go missing or are not traceable causing prejudice to the opposite party. It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken up to gain any advantage and benefit, which aspects have been noticed in M/s Dehri Rohtas Light Rly. Co. Ltd. v. District Board, Bhojpur and Others((1992) 2 SCC 598 ) and State of Maharashtra v. Digambar. (1995) 4 SCC 683 ) These facets, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. These have bearing on grant and withholding of relief. Therefore, we have factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment. 32. The relief as granted certainly has serious financial repercussions and would also prevent the appellants from taking further action, which aspect has been noticed, though not finally determined in the impugned judgment. The studied silence of the respondent, who did not correspond or make any representation for nine years, was with an ulterior motive as he wanted to take benefit of the slipup though he had suffered dismissal. The courts can always refuse to grant relief to a litigant if it considers that grant of relief sought is likely to cause substantial hardship or substantial prejudice to the opposite side or would be detrimental to good administration.(R. (on the application of Parkyn) v. Restormel BC [2001] EWCA Civ 330 ) This principle of good administration is independent of hardship, or prejudice to the rights of the third parties and does not require specific evidence that this has in fact occurred, though in relation to withholding relief some evidence may be required. Relief should not be denied for mere inconvenience but when the difficulty caused to the decision maker approaches impracticability or when there is an overriding need for finality and certainty.(R. v. Monopolies and Mergers Commission Ex p. Argyll Group [1986] 1 W.L.R. 763.) 33. Learned counsel for the respondent had submitted that the appeal was not dismissed on the ground of delay and laches by the Chief General Manager vide order dated 23.01.1999. This aspect has also appealed to the Single Judge and the Division Bench. We do not agree with the aforesaid views for several reasons. The respondent had approached the High Court through a writ petition in O.P. No. 19807/1998 G, whereby directions were issued vide order dated 14.10.1998 for consideration and disposal of the appeal, which, it is apparent, was interpreted as a direction that the appeal should be decided on merits. One can appreciate the predicament of the Chief General Manager who had to adjudicate the appeal in terms of the direction of the Constitutional Court and, therefore, his reluctance to dismiss the appeal on the ground of delay and laches. The appeal was dismissed on merits. These aspects cannot be ignored as the exercise of writ jurisdiction is always discretionary which has to keep in view the conduct of the parties. 34. By the order dated 04.12.2009, the dues payable to the respondent in terms of the impugned judgment were released to him on furnishing security to the satisfaction of the Chief General Manager. During the course of hearing, it was stated that the amount released has been kept in a fixed deposit. The payment released is directed to be returned and restituted to the appellant bank without interest within a period of six weeks from the date of pronouncement of this judgment. However, in case payment is not made within the aforesaid period, the respondent would be liable to pay interest @ 8% per annum from the date of this judgment till actual payment is made. In addition, the appellants would be entitled to enforce the security furnished by the respondent.
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be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.31. The questions of prejudice, change of position, creation of third-party rights or interests on the part of the party seeking relief are important and relevant aspects as delay may obscure facts, encourage dubious claims, and may prevent fair and just adjudication. Often, relevant and material evidence go missing or are not traceable causing prejudice to the opposite party. It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken up to gain any advantage and benefit, which aspects have been noticed in M/s Dehri Rohtas Light Rly. Co. Ltd. v. District Board, Bhojpur and Others((1992) 2 SCC 598 ) and State of Maharashtra v. Digambar. (1995) 4 SCC 683 ) These facets, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. These have bearing on grant and withholding of relief. Therefore, we have factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment.32. The relief as granted certainly has serious financial repercussions and would also prevent the appellants from taking further action, which aspect has been noticed, though not finally determined in the impugned judgment. The studied silence of the respondent, who did not correspond or make any representation for nine years, was with an ulterior motive as he wanted to take benefit of the slipup though he had suffered dismissal. The courts can always refuse to grant relief to a litigant if it considers that grant of relief sought is likely to cause substantial hardship or substantial prejudice to the opposite side or would be detrimental to good administration.(R. (on the application of Parkyn) v. Restormel BC [2001] EWCA Civ 330 ) This principle of good administration is independent of hardship, or prejudice to the rights of the third parties and does not require specific evidence that this has in fact occurred, though in relation to withholding relief some evidence may be required. Relief should not be denied for mere inconvenience but when the difficulty caused to the decision maker approaches impracticability or when there is an overriding need for finality and certainty.(R. v. Monopolies and Mergers Commission Ex p. Argyll Group [1986] 1 W.L.R. 763.)We do not agree with the aforesaid views for several reasons. The respondent had approached the High Court through a writ petition in O.P. No. 19807/1998 G, whereby directions were issued vide order dated 14.10.1998 for consideration and disposal of the appeal, which, it is apparent, was interpreted as a direction that the appeal should be decided on merits. One can appreciate the predicament of the Chief General Manager who had to adjudicate the appeal in terms of the direction of the Constitutional Court and, therefore, his reluctance to dismiss the appeal on the ground of delay and laches. The appeal was dismissed on merits. These aspects cannot be ignored as the exercise of writ jurisdiction is always discretionary which has to keep in view the conduct of the parties.34. By the order dated 04.12.2009, the dues payable to the respondent in terms of the impugned judgment were released to him on furnishing security to the satisfaction of the Chief General Manager. During the course of hearing, it was stated that the amount released has been kept in a fixed deposit. The payment released is directed to be returned and restituted to the appellant bank without interest within a period of six weeks from the date of pronouncement of this judgment. However, in case payment is not made within the aforesaid period, the respondent would be liable to pay interest @ 8% per annum from the date of this judgment till actual payment is made. In addition, the appellants would be entitled to enforce the security furnished by the respondent.
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Kumar Dhirendra Mullick Vs. Tivoli Park Apartments (P) Ltd | mentioned in the decree for specific performance, despite the application for rescission of the agreement/ decree. 31. In the case of Vaiyapuri Reddy and another vs. Sivalinga Reddiar reported in (1970) 1 Madras L.J. 92) it has been held that since the Court has, under section 28, the power to extend the period in cases where it has already fixed a period of deposit, it should be deemed to have the power to either fix a period or grant a fresh period to deposit, particularly in cases where no such period is fixed by the decree. In that case, the Court found that there were laches on the part of the plaintiff in depositing the amount and yet the Court gave thirty days time to the plaintiff to deposit the amount on the application made by the defendants for rescission of the contract. 32. In the case of Ouseph & another vs. Devassy reported in [AIR 2001 Kerala 104] the decree was silent as to the date by which the decree holder was to pay the balance of the price. Possession was with the decree holder. The purchaser deposited the balance before filing of the petition for rescission of the agreement but after expiry of the period fixed by the decree. The decree holder applied for condonation of the delay. The same was granted. In doing so, the Court observed that section 28 enables the Court to extend the time which by itself implies that mere failure to deposit the balance need not result in the rescission of the contract. On facts, it was found that the decree was silent as to the date by which the decree holder was to deposit the balance of the sale consideration. On facts, it was found that the decree holder was in possession for 18 years. On facts, it was found that the vendor did not take any steps to get the balance of the sale consideration. That the vendor failed to seek rescission for 18 years. In the circumstances, the Court allowed the decree-holder, condonation of delay in depositing the balance consideration. 33. In the case of V.S. Palanichamy Chettiar Firm vs. C. Alagappan and another reported in [AIR 1999 SC 918 ], cited on behalf of the appellants, the vendee-decree holder filed application for execution of the decree of specific performance after five years. No reason was given for not putting the decree in execution for five years. Further, under the decree, there was a specific direction to the decree holder to deposit the balance purchase price within the stipulated period. Under the said decree, a further direction was given to the judgment debtor to execute the sale deed on the vendees depositing the balance purchase price. It was a case of a final decree. In the execution application, the judgment debtor applied for rescission of the agreement of sale on the ground of default on the part of the vendee in failing to deposit the balance price. Under the above circumstances, this Court held that the vendee, who had applied for extension of time to deposit the balance price, was not entitled to such extension. This Court observed that in deciding application under section 28(1), the Court has to see all the attendant circumstances including the conduct of the parties. On facts, this Court found that there was no default on the part of the vendor - judgment debtor. That no explanation whatsoever came from the vendee - decree holder for failure to deposit the balance price. In the circumstances, on facts, this Court refused extension of time to deposit the balance price. Therefore, the said judgment has no application to the facts of the present case. 34. Applying the above tests to the facts of the present case, the decree in question is not a self operative final decree. It is a preliminary decree. It merely directs the Trust to execute the lease on or before 24.10.1985. It does not prescribe any consequence of non deposit of premium. It does not prescribe any consequence of non tender of rent on or before 24.10.1985. Till date, the decree holder has paid the premium of Rs. 30 lacs. It has paid rent amounting to Rs. 96 lacs. In the circumstances, it cannot be said that the decree holder intended to abandon the contract dated 16.8.1980. There is no positive refusal on the part of the respondent to complete the lease. There is no explanation given by the Trust for not moving the application for rescission of the contract for nine years. The decree was passed on 25.7.1985 whereas the application for rescission of the agreement is dated 3.10.1994. As stated above, the Trust did not lead the evidence in suit no. 176/81. The corresponding suit no. 87/81 filed by the Trust was dismissed for non-prosecution. The Trust moved under Order IX Rule 13 CPC for setting aside the decree dated 25.7.1985. That application was dismissed for default vide order dated 1.8.1987. The Trust moved the application for restoration which was also dismissed for default on 16.7.1988. The Trust moved in appeal against the decree dated 25.7.1985. That appeal was also dismissed. The decree holder has referred to the entire correspondence between the parties which indicate that during this period of nine years in the guise of negotiations, the decree holder was prevented from filing execution application. The decree holder was repeatedly assured of settlement. The decree holder was repeatedly assured that lease would be executed in its favour. Attempt was also made by the Trustees during the interregnum to lease the property to Dilip Chand Kankaria and Smt. Sudha Kankaria. Lastly, in the present case, the decree holder was put in possession under the deed of assignment dated 20.8.1970. The respondent was not put in possession under the agreement dated 16.8.1980. In the circumstances, the trial Court erred in directing rescission of the said agreement dated 16.8.1980. For the aforestated reasons, we do not find any merit in this appeal. 35. | 1[ds]been submitted on behalf of the appellants herein that at the time of the agreement dated 16.8.1980, the value of the property in question was about Rs. 30 crores. On the basis of the said value, the market rate ought to have been Rs. 30 lacs. It was urged that if the Trust property is allowed to be leased out to the respondent herein on monthly rent of Rs. 30,000/- and at a premium of Rs. 30 lacs, the appellant-Trust will loose substantially. In this connection, reliance has been placed on the valuation report dated 26.4.2000.18. We do not find any merit in the aforestated arguments. As far back as 20.8.1970, the Trustees allowed the lessee, Mohd. Ismail, to assign the leasehold rights in favour of the respondent herein. Further, the assignee was allowed to be put in possession. On 16.8.1980, the Trustees entered into oral agreement to renew the above lease for 70 years w.e.f. 1.5.1981 at increased rent of Rs. 30,000/- per month plus premium of Rs. 30 lacs as found by the trial Court in title suit no. 176/81 decided on 25.7.1985. In the circumstances, increase in the value of the immovable property, on account of inflation, is no ground to rescind the agreement dated 16.8.1980. We have to see the circumstances prevalent as on 16.8.1980 when the parties entered into the oral agreement to leasenext contended on behalf of the appellants that the oral agreement dated 16.8.1980 for renewal of lease stood vitiated on account of collusion between Tivoli Court Pvt. Ltd., the constituted attorney appointed by the Trustees, and the respondent herein. In this connection, it has been alleged that the Trust had entered into an agreement dated 29.4.1981 to lease out the property to one Tivoli Court Pvt. Ltd., in whose favour a power of attorney was also executed. Under that power of attorney, Tivoli Court Pvt. Ltd. was authorized to adopt all legal proceedings against the respondent herein for eviction. It is further alleged that the respondent herein perpetrated fraud on the Trust by colluding with the Tivoli Court Pvt. Ltd., so that no effective legal steps could be taken against the respondent herein. It is further alleged that the Director of Tivoli Court Pvt. Ltd. was also a Director of the respondent company. Consequently, the suit for eviction bearing no. 87/81 was allowed to be dismissed for default while suit for specific performance was allowed to be decreed ex-parte. That even the subsequent application under Order IX Rule 13 CPC was allowed to be dismissed for default. In the circumstances, it is submitted that the trial Court was right in rescinding the agreement dated 16.8.1980.20. We do not find any merit in the above arguments. At stated above, prior to the purported agreement dated 29.4.1981 in favour of Tivoli Court Pvt. Ltd. the Trustees had consented to the Assignment dated 20.8.1970 by their lessee, Mohd. Ismail, in favour of the respondent herein. Pursuant to the said Assignment, the said respondent was put in possession. This assignment was followed by oral agreement dated 16.8.1980 to renew the lease. In the circumstances, one fails to appreciate the authority of the Trustees to enter into an agreement dated 29.4.1981 to lease out the said property in favour of Tivoli Court Pvt. Ltd. On 25.7.1985, when title suit no. 176/81 came for hearing, no evidence was led on behalf of the Trustees explaining circumstances under which the Trust entered into the agreement dated 29.4.1981 with Tivoli Court Pvt. Ltd. In the circumstances, it is not open to the appellants herein to go behind the said decree dated 25.7.1985. Lastly, it may be mentioned that the trial Court has rescinded the agreement dated 16.8.1980 basically on the ground of alleged breaches thereof. In the circumstances, it is not open to the appellants now to submit that the decree dated 25.7.1985 was collusive and not binding on the Trust estatenext contended on behalf of the appellants that the oral agreement dated 16.8.1980 for renewal of lease stood vitiated on account of collusion between Tivoli Court Pvt. Ltd., the constituted attorney appointed by the Trustees, and the respondent herein. In this connection, it has been alleged that the Trust had entered into an agreement dated 29.4.1981 to lease out the property to one Tivoli Court Pvt. Ltd., in whose favour a power of attorney was also executed. Under that power of attorney, Tivoli Court Pvt. Ltd. was authorized to adopt all legal proceedings against the respondent herein for eviction. It is further alleged that the respondent herein perpetrated fraud on the Trust by colluding with the Tivoli Court Pvt. Ltd., so that no effective legal steps could be taken against the respondent herein. It is further alleged that the Director of Tivoli Court Pvt. Ltd. was also a Director of the respondent company. Consequently, the suit for eviction bearing no. 87/81 was allowed to be dismissed for default while suit for specific performance was allowed to be decreed ex-parte. That even the subsequent application under Order IX Rule 13 CPC was allowed to be dismissed for default. In the circumstances, it is submitted that the trial Court was right in rescinding the agreement dated 16.8.1980.20. We do not find any merit in the above arguments. At stated above, prior to the purported agreement dated 29.4.1981 in favour of Tivoli Court Pvt. Ltd. the Trustees had consented to the Assignment dated 20.8.1970 by their lessee, Mohd. Ismail, in favour of the respondent herein. Pursuant to the said Assignment, the said respondent was put in possession. This assignment was followed by oral agreement dated 16.8.1980 to renew the lease. In the circumstances, one fails to appreciate the authority of the Trustees to enter into an agreement dated 29.4.1981 to lease out the said property in favour of Tivoli Court Pvt. Ltd. On 25.7.1985, when title suit no. 176/81 came for hearing, no evidence was led on behalf of the Trustees explaining circumstances under which the Trust entered into the agreement dated 29.4.1981 with Tivoli Court Pvt. Ltd. In the circumstances, it is not open to the appellants herein to go behind the said decree dated 25.7.1985. Lastly, it may be mentioned that the trial Court has rescinded the agreement dated 16.8.1980 basically on the ground of alleged breaches thereof. In the circumstances, it is not open to the appellants now to submit that the decree dated 25.7.1985 was collusive and not binding on the Trust estateOn behalf of the appellants, it was next submitted that the respondent herein was not serious about performing its obligations under the decree. In this connection, it was submitted that nothing prevented the respondent from applying to the Court for execution of the lease. That, nothing prevented the respondent from seeking extension of time to deposit the premium/rent. It was urged that the very fact that the respondent chose to make no such application and slept on its rights for nine years conclusively proves that it was not ready and willing to perform its part of the contract and also its obligations under the decree and in the circumstances, the trial Court had rightly rescinded the oral lease agreement dated 16.8.1980. It was further submitted that the trial Court while passing the decree had stated that within 90 days of the decree dated 25.7.1985, the lease shall be executed i.e. all payments were required to be made within that period. That without such payments, a lease could not be directed to be executed. No steps were taken by the respondent herein to renew the lease and pay the premium in accordance with the agreement dated 16.8.1980. No rent was offered during the period 25.7.1985 to 3.10.1994 when the appellants filed their application for rescission of the oral lease agreement dated 16.8.1980. In the circumstances, it was submitted, that, by implication, the respondent herein was obliged to pay or tender the amount of premium of Rs. 30 lacs within 90 days from the date of the decree dated 25.7.1985. It was urged that when the decree fixed 90 days for execution of the lease, it was implicit in the said direction that the respondent herein shall pay or tender Rs. 30 lacs on or before 24.10.1985. That, since the respondent failed to pay or tender Rs. 30 lacs on or before 24.10.1985, the appellants were entitled to seek rescission of the agreement dated 16.8.1980. That, when the agreement for renewal of the lease dated 16.8.1980 provided for payment of monthly rent of Rs. 30,000/-, it was implicit in the decree dated 25.7.1985 for the respondent to pay the monthly rent in terms of the agreement dated 16.8.1980 and since the decree holder failed to pay, in the aforestated terms, the appellants were entitled to seek rescission of the decree dated 25.7.1985 under section 28(1) of the 1963 Act. In the circumstances, it was urged, that the respondent herein was never ready and willing to abide by the terms and conditions of the agreement and consequently, the trial Court was right in rescinding the oral lease agreement dated 16.8.198022. We do not find merit in the above arguments. The short question which arises for determination in this case is - whether the oral lease agreement dated 16.8.1980 was liable to be rescinded for alleged breaches. Mr. L.N. Rao learned senior counsel appearing on behalf of the appellants, at the very threshold, submitted that he would like to confine his arguments to the question of rescission only. According to the learned counsel, the power of the Court under section 28(1) to order cancellation of the decree and order restoration of possession to the vendor was a very wide question which need not to be gone into in the present case. In the case of V.S. Palanichamy Chettiar Firm vs. C. Alagappan and another reported in [AIR 1999 SC 918 ], cited on behalf of the appellants, the vendee-decree holder filed application for execution of the decree of specific performance after five years. No reason was given for not putting the decree in execution for five years. Further, under the decree, there was a specific direction to the decree holder to deposit the balance purchase price within the stipulated period. Under the said decree, a further direction was given to the judgment debtor to execute the sale deed on the vendees depositing the balance purchase price. It was a case of a final decree. In the execution application, the judgment debtor applied for rescission of the agreement of sale on the ground of default on the part of the vendee in failing to deposit the balance price. Under the above circumstances, this Court held that the vendee, who had applied for extension of time to deposit the balance price, was not entitled to such extension. This Court observed that in deciding application under section 28(1), the Court has to see all the attendant circumstances including the conduct of the parties. On facts, this Court found that there was no default on the part of the vendor - judgment debtor. That no explanation whatsoever came from the vendee - decree holder for failure to deposit the balance price. In the circumstances, on facts, this Court refused extension of time to deposit the balance price. Therefore, the said judgment has no application to the facts of the present case34. Applying the above tests to the facts of the present case, the decree in question is not a self operative final decree. It is a preliminary decree. It merely directs the Trust to execute the lease on or before 24.10.1985. It does not prescribe any consequence of non deposit of premium. It does not prescribe any consequence of non tender of rent on or before 24.10.1985. Till date, the decree holder has paid the premium of Rs. 30 lacs. It has paid rent amounting to Rs. 96 lacs. In the circumstances, it cannot be said that the decree holder intended to abandon the contract dated 16.8.1980. There is no positive refusal on the part of the respondent to complete the lease. There is no explanation given by the Trust for not moving the application for rescission of the contract for nine years. The decree was passed on 25.7.1985 whereas the application for rescission of the agreement is dated 3.10.1994. As stated above, the Trust did not lead the evidence in suit no. 176/81. The corresponding suit no. 87/81 filed by the Trust was dismissed for non-prosecution. The Trust moved under Order IX Rule 13 CPC for setting aside the decree dated 25.7.1985. That application was dismissed for default vide order dated 1.8.1987. The Trust moved the application for restoration which was also dismissed for default on 16.7.1988. The Trust moved in appeal against the decree dated 25.7.1985. That appeal was also dismissed. The decree holder has referred to the entire correspondence between the parties which indicate that during this period of nine years in the guise of negotiations, the decree holder was prevented from filing execution application. The decree holder was repeatedly assured of settlement. The decree holder was repeatedly assured that lease would be executed in its favour. Attempt was also made by the Trustees during the interregnum to lease the property to Dilip Chand Kankaria and Smt. Sudha Kankaria. Lastly, in the present case, the decree holder was put in possession under the deed of assignment dated 20.8.1970. The respondent was not put in possession under the agreement dated 16.8.1980. In the circumstances, the trial Court erred in directing rescission of the said agreement dated 16.8.1980. For the aforestated reasons, we do not find any merit in this appeal | 1 | 5,958 | 2,513 | ### Instruction:
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mentioned in the decree for specific performance, despite the application for rescission of the agreement/ decree. 31. In the case of Vaiyapuri Reddy and another vs. Sivalinga Reddiar reported in (1970) 1 Madras L.J. 92) it has been held that since the Court has, under section 28, the power to extend the period in cases where it has already fixed a period of deposit, it should be deemed to have the power to either fix a period or grant a fresh period to deposit, particularly in cases where no such period is fixed by the decree. In that case, the Court found that there were laches on the part of the plaintiff in depositing the amount and yet the Court gave thirty days time to the plaintiff to deposit the amount on the application made by the defendants for rescission of the contract. 32. In the case of Ouseph & another vs. Devassy reported in [AIR 2001 Kerala 104] the decree was silent as to the date by which the decree holder was to pay the balance of the price. Possession was with the decree holder. The purchaser deposited the balance before filing of the petition for rescission of the agreement but after expiry of the period fixed by the decree. The decree holder applied for condonation of the delay. The same was granted. In doing so, the Court observed that section 28 enables the Court to extend the time which by itself implies that mere failure to deposit the balance need not result in the rescission of the contract. On facts, it was found that the decree was silent as to the date by which the decree holder was to deposit the balance of the sale consideration. On facts, it was found that the decree holder was in possession for 18 years. On facts, it was found that the vendor did not take any steps to get the balance of the sale consideration. That the vendor failed to seek rescission for 18 years. In the circumstances, the Court allowed the decree-holder, condonation of delay in depositing the balance consideration. 33. In the case of V.S. Palanichamy Chettiar Firm vs. C. Alagappan and another reported in [AIR 1999 SC 918 ], cited on behalf of the appellants, the vendee-decree holder filed application for execution of the decree of specific performance after five years. No reason was given for not putting the decree in execution for five years. Further, under the decree, there was a specific direction to the decree holder to deposit the balance purchase price within the stipulated period. Under the said decree, a further direction was given to the judgment debtor to execute the sale deed on the vendees depositing the balance purchase price. It was a case of a final decree. In the execution application, the judgment debtor applied for rescission of the agreement of sale on the ground of default on the part of the vendee in failing to deposit the balance price. Under the above circumstances, this Court held that the vendee, who had applied for extension of time to deposit the balance price, was not entitled to such extension. This Court observed that in deciding application under section 28(1), the Court has to see all the attendant circumstances including the conduct of the parties. On facts, this Court found that there was no default on the part of the vendor - judgment debtor. That no explanation whatsoever came from the vendee - decree holder for failure to deposit the balance price. In the circumstances, on facts, this Court refused extension of time to deposit the balance price. Therefore, the said judgment has no application to the facts of the present case. 34. Applying the above tests to the facts of the present case, the decree in question is not a self operative final decree. It is a preliminary decree. It merely directs the Trust to execute the lease on or before 24.10.1985. It does not prescribe any consequence of non deposit of premium. It does not prescribe any consequence of non tender of rent on or before 24.10.1985. Till date, the decree holder has paid the premium of Rs. 30 lacs. It has paid rent amounting to Rs. 96 lacs. In the circumstances, it cannot be said that the decree holder intended to abandon the contract dated 16.8.1980. There is no positive refusal on the part of the respondent to complete the lease. There is no explanation given by the Trust for not moving the application for rescission of the contract for nine years. The decree was passed on 25.7.1985 whereas the application for rescission of the agreement is dated 3.10.1994. As stated above, the Trust did not lead the evidence in suit no. 176/81. The corresponding suit no. 87/81 filed by the Trust was dismissed for non-prosecution. The Trust moved under Order IX Rule 13 CPC for setting aside the decree dated 25.7.1985. That application was dismissed for default vide order dated 1.8.1987. The Trust moved the application for restoration which was also dismissed for default on 16.7.1988. The Trust moved in appeal against the decree dated 25.7.1985. That appeal was also dismissed. The decree holder has referred to the entire correspondence between the parties which indicate that during this period of nine years in the guise of negotiations, the decree holder was prevented from filing execution application. The decree holder was repeatedly assured of settlement. The decree holder was repeatedly assured that lease would be executed in its favour. Attempt was also made by the Trustees during the interregnum to lease the property to Dilip Chand Kankaria and Smt. Sudha Kankaria. Lastly, in the present case, the decree holder was put in possession under the deed of assignment dated 20.8.1970. The respondent was not put in possession under the agreement dated 16.8.1980. In the circumstances, the trial Court erred in directing rescission of the said agreement dated 16.8.1980. For the aforestated reasons, we do not find any merit in this appeal. 35.
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dated 16.8.1980. No rent was offered during the period 25.7.1985 to 3.10.1994 when the appellants filed their application for rescission of the oral lease agreement dated 16.8.1980. In the circumstances, it was submitted, that, by implication, the respondent herein was obliged to pay or tender the amount of premium of Rs. 30 lacs within 90 days from the date of the decree dated 25.7.1985. It was urged that when the decree fixed 90 days for execution of the lease, it was implicit in the said direction that the respondent herein shall pay or tender Rs. 30 lacs on or before 24.10.1985. That, since the respondent failed to pay or tender Rs. 30 lacs on or before 24.10.1985, the appellants were entitled to seek rescission of the agreement dated 16.8.1980. That, when the agreement for renewal of the lease dated 16.8.1980 provided for payment of monthly rent of Rs. 30,000/-, it was implicit in the decree dated 25.7.1985 for the respondent to pay the monthly rent in terms of the agreement dated 16.8.1980 and since the decree holder failed to pay, in the aforestated terms, the appellants were entitled to seek rescission of the decree dated 25.7.1985 under section 28(1) of the 1963 Act. In the circumstances, it was urged, that the respondent herein was never ready and willing to abide by the terms and conditions of the agreement and consequently, the trial Court was right in rescinding the oral lease agreement dated 16.8.198022. We do not find merit in the above arguments. The short question which arises for determination in this case is - whether the oral lease agreement dated 16.8.1980 was liable to be rescinded for alleged breaches. Mr. L.N. Rao learned senior counsel appearing on behalf of the appellants, at the very threshold, submitted that he would like to confine his arguments to the question of rescission only. According to the learned counsel, the power of the Court under section 28(1) to order cancellation of the decree and order restoration of possession to the vendor was a very wide question which need not to be gone into in the present case. In the case of V.S. Palanichamy Chettiar Firm vs. C. Alagappan and another reported in [AIR 1999 SC 918 ], cited on behalf of the appellants, the vendee-decree holder filed application for execution of the decree of specific performance after five years. No reason was given for not putting the decree in execution for five years. Further, under the decree, there was a specific direction to the decree holder to deposit the balance purchase price within the stipulated period. Under the said decree, a further direction was given to the judgment debtor to execute the sale deed on the vendees depositing the balance purchase price. It was a case of a final decree. In the execution application, the judgment debtor applied for rescission of the agreement of sale on the ground of default on the part of the vendee in failing to deposit the balance price. Under the above circumstances, this Court held that the vendee, who had applied for extension of time to deposit the balance price, was not entitled to such extension. This Court observed that in deciding application under section 28(1), the Court has to see all the attendant circumstances including the conduct of the parties. On facts, this Court found that there was no default on the part of the vendor - judgment debtor. That no explanation whatsoever came from the vendee - decree holder for failure to deposit the balance price. In the circumstances, on facts, this Court refused extension of time to deposit the balance price. Therefore, the said judgment has no application to the facts of the present case34. Applying the above tests to the facts of the present case, the decree in question is not a self operative final decree. It is a preliminary decree. It merely directs the Trust to execute the lease on or before 24.10.1985. It does not prescribe any consequence of non deposit of premium. It does not prescribe any consequence of non tender of rent on or before 24.10.1985. Till date, the decree holder has paid the premium of Rs. 30 lacs. It has paid rent amounting to Rs. 96 lacs. In the circumstances, it cannot be said that the decree holder intended to abandon the contract dated 16.8.1980. There is no positive refusal on the part of the respondent to complete the lease. There is no explanation given by the Trust for not moving the application for rescission of the contract for nine years. The decree was passed on 25.7.1985 whereas the application for rescission of the agreement is dated 3.10.1994. As stated above, the Trust did not lead the evidence in suit no. 176/81. The corresponding suit no. 87/81 filed by the Trust was dismissed for non-prosecution. The Trust moved under Order IX Rule 13 CPC for setting aside the decree dated 25.7.1985. That application was dismissed for default vide order dated 1.8.1987. The Trust moved the application for restoration which was also dismissed for default on 16.7.1988. The Trust moved in appeal against the decree dated 25.7.1985. That appeal was also dismissed. The decree holder has referred to the entire correspondence between the parties which indicate that during this period of nine years in the guise of negotiations, the decree holder was prevented from filing execution application. The decree holder was repeatedly assured of settlement. The decree holder was repeatedly assured that lease would be executed in its favour. Attempt was also made by the Trustees during the interregnum to lease the property to Dilip Chand Kankaria and Smt. Sudha Kankaria. Lastly, in the present case, the decree holder was put in possession under the deed of assignment dated 20.8.1970. The respondent was not put in possession under the agreement dated 16.8.1980. In the circumstances, the trial Court erred in directing rescission of the said agreement dated 16.8.1980. For the aforestated reasons, we do not find any merit in this appeal
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THE STATE OF KERALA Vs. MOHAMMED BASHEER | tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates." (emphasis supplied)15. Section 102 of the Land Reforms Act authorises the Government or any person aggrieved by any order of the Land Tribunal to file an appeal within such time, as may be prescribed, to the Appellate Authority. 16. Rule 5 of the Land Reforms Rules authorizes the Land Tribunal to initiate suo motu proceedings; which is as under:"5. Land Tribunal to initiate suo motu proceedings. – (1) Where a Land Tribunal receives information that the right, title and interest of the landowner and intermediaries in respect of a holding or part of a holding situate within its jurisdiction have vested in the Government under Section 72, it shall, notwithstanding that an application referred to in Rule 4 has not been received in respect of that holding or part, as the case may be, of its own motion assign such right, title and interest to the cultivating tenants entitled thereto in the manner hereinafter provided."17. As noticed above, sub-section (2) of Section 3 of the KPF Act provides for the exemption of the private forest from vesting. It states that the land comprised in private forest held by an owner under his personal cultivation is exempted from vesting, if the ceiling limit under the Kerala Land Reforms Act is not exceeded. The land in question measures about 2 acres. It is not the case of the appellants that the land exceeds the ceiling limit under the Kerala Land Reforms Act. The expression held by the owner under his personal cultivation contained in sub- section (2) of Section 3 of the KPF Act is crucial. To bring the land under the exempted category, the claimant should hold the same as an owner and that it should be under his personal cultivation. To own is to have good legal title to hold and possess the property. Blacks Law Dictionary, Ninth Edition defines the word own as to rightfully have or possess as property; to have legal title to. 18. It is well settled that when the enactment enjoins that any evidence would be treated as a conclusive proof of certain factual situation or legal hypothesis, the law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness. This is the principle embodied in Section 4 of the Evidence Act, 1872 when it defines "conclusive proof" (See: Cheeranthoodika Ahmmedkutty and Anr. v. Parambur Mariakutty Umma and Ors. reported in 2000 (2) SCC 417 ). 19. In the instant case, the land in question is jenmam land. The Land Tribunal initiated suo motu proceedings under Rule 5 of the Land Reform Rules, after obtaining information that the cultivating tenant had been in possession, obviously on a report of the revenue inspector. It is evident from Section 74 of the Land Reforms Act that any tenancy after 01.04.1964 is prohibited. Any tenancy created after that date is invalid. The Land Tribunal initiating proceedings under Section 72B in favour of the cultivating tenant would be considering the possession of a tenant as on the said date which is far earlier than the KPF Act. Possession and title under the certificate of purchase have to relate back to a date prior to the date of vesting under the Land Reforms Act, i.e. 01.04.1964. Therefore, there is no question of vesting of the land in the Government under the KPF Act which has come into force subsequent to the date of Land Reforms Act. As noted above, the certificate of purchase issued under the Land Reforms Act is attributed with statutory conclusiveness as regards ownership/title under sub-section (2) of Section 72K. The certificate issued by a competent Land Tribunal after finding that the tenant was in possession of the property as a cultivating tenant is a conclusive proof of possession as well. 20. In the instant case, certificate of purchase has been issued in favour of the respondent after enquiry by the Land Tribunal. Though the State Government is not a party to this order, there was no bar for it to challenge this order under Section 102 of the Land Reforms Act. No appeal has been filed challenging the certificate of purchase either by the Government or by any other person. Thus, the certificate of purchase has become final. 21. To sum up, the certificate of purchase was issued by the Land Tribunal, under sub-section (1) of Section 72K. Sub-section (2) of Section 72K of the Land Reforms Act clearly states that the certificate of purchase issued under sub-section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase. Therefore, it can safely be concluded that the respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our view, the land in question is exempted from vesting in the State under sub-section (2) of Section 3 of the KPF Act. 22. In Kunjanam Antony (Dead) by LRs. v. State of Kerala and Anr. (2003) 3 SCC 221 , relied on by the learned senior counsel for the appellants, it has been held that the order of the Thaluka Land Board is a piece of evidence so far as the proceedings under the Kerala Private Forests (Vesting and Assignment) Act, 1971 are concerned, but it cannot be treated as binding on the authorities. | 0[ds]9. It is clear from sub-section (2) of Section 3 that the extent of land comprised in private forests held by the owner under his personal cultivation is exempted from vesting, if the ceiling limit under the Kerala Land Reforms Act is not exceeded. Similarly, sub-section (3) of Section 3 does not apply in respect of so much of extent of private forests as is held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, if the ceiling limit under Chapter III of the Kerala Land Reforms Act is not exceeded. The appointed day for the purpose of Section 3 is 10.5.1971, which is clear from Section 2(a) of the KPF Act.As noticed above, sub-section (2) of Section 3 of the KPF Act provides for the exemption of the private forest from vesting. It states that the land comprised in private forest held by an owner under his personal cultivation is exempted from vesting, if the ceiling limit under the Kerala Land Reforms Act is not exceeded. The land in question measures about 2 acres. It is not the case of the appellants that the land exceeds the ceiling limit under the Kerala Land Reforms Act. The expression held by the owner under his personal cultivation contained in sub- section (2) of Section 3 of the KPF Act is crucial. To bring the land under the exempted category, the claimant should hold the same as an owner and that it should be under his personal cultivation. To own is to have good legal title to hold and possess the property. Blacks Law Dictionary, Ninth Edition defines the word own as to rightfully have or possess as property; to have legal title to.It is well settled that when the enactment enjoins that any evidence would be treated as a conclusive proof of certain factual situation or legal hypothesis, the law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness. This is the principle embodied in Section 4 of the Evidence Act, 1872 when it defines "conclusive proof" (See: Cheeranthoodika Ahmmedkutty and Anr. v. Parambur Mariakutty Umma and Ors. reported in 2000 (2) SCC 417 ).In the instant case, the land in question is jenmam land. The Land Tribunal initiated suo motu proceedings under Rule 5 of the Land Reform Rules, after obtaining information that the cultivating tenant had been in possession, obviously on a report of the revenue inspector. It is evident from Section 74 of the Land Reforms Act that any tenancy after 01.04.1964 is prohibited. Any tenancy created after that date is invalid. The Land Tribunal initiating proceedings under Section 72B in favour of the cultivating tenant would be considering the possession of a tenant as on the said date which is far earlier than the KPF Act. Possession and title under the certificate of purchase have to relate back to a date prior to the date of vesting under the Land Reforms Act, i.e. 01.04.1964. Therefore, there is no question of vesting of the land in the Government under the KPF Act which has come into force subsequent to the date of Land Reforms Act. As noted above, the certificate of purchase issued under the Land Reforms Act is attributed with statutory conclusiveness as regards ownership/title under sub-section (2) of Section 72K. The certificate issued by a competent Land Tribunal after finding that the tenant was in possession of the property as a cultivating tenant is a conclusive proof of possession as well.In the instant case, certificate of purchase has been issued in favour of the respondent after enquiry by the Land Tribunal. Though the State Government is not a party to this order, there was no bar for it to challenge this order under Section 102 of the Land Reforms Act. No appeal has been filed challenging the certificate of purchase either by the Government or by any other person. Thus, the certificate of purchase has become final.To sum up, the certificate of purchase was issued by the Land Tribunal, under sub-section (1) of Section 72K. Sub-section (2) of Section 72K of the Land Reforms Act clearly states that the certificate of purchase issued under sub-section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase. Therefore, it can safely be concluded that the respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our view, the land in question is exempted from vesting in the State under sub-section (2) of Section 3 of the KPF Act.In Kunjanam Antony (Dead) by LRs. v. State of Kerala and Anr. (2003) 3 SCC 221 , relied on by the learned senior counsel for the appellants, it has been held that the order of the Thaluka Land Board is a piece of evidence so far as the proceedings under the Kerala Private Forests (Vesting and Assignment) Act, 1971 are concerned, but it cannot be treated as binding on the authorities. | 0 | 3,533 | 1,038 | ### Instruction:
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tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates." (emphasis supplied)15. Section 102 of the Land Reforms Act authorises the Government or any person aggrieved by any order of the Land Tribunal to file an appeal within such time, as may be prescribed, to the Appellate Authority. 16. Rule 5 of the Land Reforms Rules authorizes the Land Tribunal to initiate suo motu proceedings; which is as under:"5. Land Tribunal to initiate suo motu proceedings. – (1) Where a Land Tribunal receives information that the right, title and interest of the landowner and intermediaries in respect of a holding or part of a holding situate within its jurisdiction have vested in the Government under Section 72, it shall, notwithstanding that an application referred to in Rule 4 has not been received in respect of that holding or part, as the case may be, of its own motion assign such right, title and interest to the cultivating tenants entitled thereto in the manner hereinafter provided."17. As noticed above, sub-section (2) of Section 3 of the KPF Act provides for the exemption of the private forest from vesting. It states that the land comprised in private forest held by an owner under his personal cultivation is exempted from vesting, if the ceiling limit under the Kerala Land Reforms Act is not exceeded. The land in question measures about 2 acres. It is not the case of the appellants that the land exceeds the ceiling limit under the Kerala Land Reforms Act. The expression held by the owner under his personal cultivation contained in sub- section (2) of Section 3 of the KPF Act is crucial. To bring the land under the exempted category, the claimant should hold the same as an owner and that it should be under his personal cultivation. To own is to have good legal title to hold and possess the property. Blacks Law Dictionary, Ninth Edition defines the word own as to rightfully have or possess as property; to have legal title to. 18. It is well settled that when the enactment enjoins that any evidence would be treated as a conclusive proof of certain factual situation or legal hypothesis, the law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness. This is the principle embodied in Section 4 of the Evidence Act, 1872 when it defines "conclusive proof" (See: Cheeranthoodika Ahmmedkutty and Anr. v. Parambur Mariakutty Umma and Ors. reported in 2000 (2) SCC 417 ). 19. In the instant case, the land in question is jenmam land. The Land Tribunal initiated suo motu proceedings under Rule 5 of the Land Reform Rules, after obtaining information that the cultivating tenant had been in possession, obviously on a report of the revenue inspector. It is evident from Section 74 of the Land Reforms Act that any tenancy after 01.04.1964 is prohibited. Any tenancy created after that date is invalid. The Land Tribunal initiating proceedings under Section 72B in favour of the cultivating tenant would be considering the possession of a tenant as on the said date which is far earlier than the KPF Act. Possession and title under the certificate of purchase have to relate back to a date prior to the date of vesting under the Land Reforms Act, i.e. 01.04.1964. Therefore, there is no question of vesting of the land in the Government under the KPF Act which has come into force subsequent to the date of Land Reforms Act. As noted above, the certificate of purchase issued under the Land Reforms Act is attributed with statutory conclusiveness as regards ownership/title under sub-section (2) of Section 72K. The certificate issued by a competent Land Tribunal after finding that the tenant was in possession of the property as a cultivating tenant is a conclusive proof of possession as well. 20. In the instant case, certificate of purchase has been issued in favour of the respondent after enquiry by the Land Tribunal. Though the State Government is not a party to this order, there was no bar for it to challenge this order under Section 102 of the Land Reforms Act. No appeal has been filed challenging the certificate of purchase either by the Government or by any other person. Thus, the certificate of purchase has become final. 21. To sum up, the certificate of purchase was issued by the Land Tribunal, under sub-section (1) of Section 72K. Sub-section (2) of Section 72K of the Land Reforms Act clearly states that the certificate of purchase issued under sub-section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase. Therefore, it can safely be concluded that the respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our view, the land in question is exempted from vesting in the State under sub-section (2) of Section 3 of the KPF Act. 22. In Kunjanam Antony (Dead) by LRs. v. State of Kerala and Anr. (2003) 3 SCC 221 , relied on by the learned senior counsel for the appellants, it has been held that the order of the Thaluka Land Board is a piece of evidence so far as the proceedings under the Kerala Private Forests (Vesting and Assignment) Act, 1971 are concerned, but it cannot be treated as binding on the authorities.
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9. It is clear from sub-section (2) of Section 3 that the extent of land comprised in private forests held by the owner under his personal cultivation is exempted from vesting, if the ceiling limit under the Kerala Land Reforms Act is not exceeded. Similarly, sub-section (3) of Section 3 does not apply in respect of so much of extent of private forests as is held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, if the ceiling limit under Chapter III of the Kerala Land Reforms Act is not exceeded. The appointed day for the purpose of Section 3 is 10.5.1971, which is clear from Section 2(a) of the KPF Act.As noticed above, sub-section (2) of Section 3 of the KPF Act provides for the exemption of the private forest from vesting. It states that the land comprised in private forest held by an owner under his personal cultivation is exempted from vesting, if the ceiling limit under the Kerala Land Reforms Act is not exceeded. The land in question measures about 2 acres. It is not the case of the appellants that the land exceeds the ceiling limit under the Kerala Land Reforms Act. The expression held by the owner under his personal cultivation contained in sub- section (2) of Section 3 of the KPF Act is crucial. To bring the land under the exempted category, the claimant should hold the same as an owner and that it should be under his personal cultivation. To own is to have good legal title to hold and possess the property. Blacks Law Dictionary, Ninth Edition defines the word own as to rightfully have or possess as property; to have legal title to.It is well settled that when the enactment enjoins that any evidence would be treated as a conclusive proof of certain factual situation or legal hypothesis, the law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness. This is the principle embodied in Section 4 of the Evidence Act, 1872 when it defines "conclusive proof" (See: Cheeranthoodika Ahmmedkutty and Anr. v. Parambur Mariakutty Umma and Ors. reported in 2000 (2) SCC 417 ).In the instant case, the land in question is jenmam land. The Land Tribunal initiated suo motu proceedings under Rule 5 of the Land Reform Rules, after obtaining information that the cultivating tenant had been in possession, obviously on a report of the revenue inspector. It is evident from Section 74 of the Land Reforms Act that any tenancy after 01.04.1964 is prohibited. Any tenancy created after that date is invalid. The Land Tribunal initiating proceedings under Section 72B in favour of the cultivating tenant would be considering the possession of a tenant as on the said date which is far earlier than the KPF Act. Possession and title under the certificate of purchase have to relate back to a date prior to the date of vesting under the Land Reforms Act, i.e. 01.04.1964. Therefore, there is no question of vesting of the land in the Government under the KPF Act which has come into force subsequent to the date of Land Reforms Act. As noted above, the certificate of purchase issued under the Land Reforms Act is attributed with statutory conclusiveness as regards ownership/title under sub-section (2) of Section 72K. The certificate issued by a competent Land Tribunal after finding that the tenant was in possession of the property as a cultivating tenant is a conclusive proof of possession as well.In the instant case, certificate of purchase has been issued in favour of the respondent after enquiry by the Land Tribunal. Though the State Government is not a party to this order, there was no bar for it to challenge this order under Section 102 of the Land Reforms Act. No appeal has been filed challenging the certificate of purchase either by the Government or by any other person. Thus, the certificate of purchase has become final.To sum up, the certificate of purchase was issued by the Land Tribunal, under sub-section (1) of Section 72K. Sub-section (2) of Section 72K of the Land Reforms Act clearly states that the certificate of purchase issued under sub-section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase. Therefore, it can safely be concluded that the respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our view, the land in question is exempted from vesting in the State under sub-section (2) of Section 3 of the KPF Act.In Kunjanam Antony (Dead) by LRs. v. State of Kerala and Anr. (2003) 3 SCC 221 , relied on by the learned senior counsel for the appellants, it has been held that the order of the Thaluka Land Board is a piece of evidence so far as the proceedings under the Kerala Private Forests (Vesting and Assignment) Act, 1971 are concerned, but it cannot be treated as binding on the authorities.
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Central Provinces Manganese Ore. Co. Ltd Vs. I.T.O Nagpur | section 147 of the Act were not given. However, along with the return filed on behalf of the Revenue before the High Court, the reasons which led to the issue of notice under section 148 on the grounds mentioned under section 147(a) of the Act were disclosed. It is not disputed that the reasons need not be set out in the notice and the same can be produced before the court Section 147 of the Act provides for assessment or reassessment in cases where income has escaped assessment. The Revenues right to take action under the section is subject to the conditions laid down therein. The requisite conditions provided under section 147(a) at the relevant time were as under The Income-tax Officer should have reasons to believe that income has "escaped assessment" by reason of omission or failure on the part of the assessee -(i) to make a return of his income under the relevant provisions of the Act; or (ii) to disclose fully and truly all material facts necessary for his assessment for the year Section 147(b) of the Act, on the other hand, required that the Income-tax Officer should have, in consequence of information in his possession, reason to believe that income has "escaped assessment" It is not disputed that, in the year 1970, the Income-tax Officer had o jurisdiction to issue notice under section 148 on the grounds contained under section 147(b) of the Act as the period of limitation for the issue of such notice provided under the Act had expired. There was. However, no bar at that point of time to issue the said notice on the grounds under section 147 (a) of the Act Mr. K Rajgopal, Senior Advocate, learned counsel for the appellant, has contended that the Income-tax Officer could not have reason to believe that there was omission or failure on the part of the appellant to disclose fully and truly all material facts necessary for the assessment and that income chargeable to tax had escaped assessment, according to him it was not the practice with the appellant to produce the account books from their head office in London before the Income-tax Officer. The appellant-company produced before the Income-tax Officer the balance-sheets, profit and loss accounts and all other necessary records required for the purpose of assessment. According to learned counsel. The only material before the Income-tax Officer was the original order of the Collector of Customs wherein it was held that he appellant had indulged in under-invoicing, resulting in declaring lesser price than the prevailing market price. Learned counsel contended that the order Collector could, at the most, be information within the ambit of section 147(b) of the Act but it could not be the basis or the reason to entertain the belief as required under section 147(a) of the ActThe only question with arises for our consideration is as to whether the two conditions required to confer jurisdiction on the Income-tax Officer under section 147(a) of the Act have been satisfied in this case. The first is that the Income-tax Officer must have reason to believe that the income chargeable to income-tax had been under- assessed and the second that such under-assessment has occurred by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year 1953-54 So far as the first condition is concerned. The Income-tax Officer, in his recorded reasons, has relied upon the fact as found by the Customs Authorities that the Appellant had under-invoiced the goods it exported. It is no doubt correct that the said finding may not be binding upon the income-tax authorities but it can be a valid reason to believe that the chargeable income has been under-assessed. The final outcome of the proceedings is not relevant. What is relevant is the existence of reasons to make the Income-tax Officer believe that there has been under-assessment of the assessees income for a particular year. We are satisfied that the first condition to invoke the jurisdiction of the Income-tax Officer under section 147(a) of the Act was satisfiedAs regards the second condition, the appellant did not produce the books of account kept by them at their head office in London nor the original contracts of sale which were entitled into at London with the buyers. The appellant did not produce before the Income-tax Officer any of the accounts which related to the foreign buyers, No reasons were given for the supply of manganese ore at a rate lower than the market rate. It is for the assessee to disclose all the primary facts before the Income-tax Officer to enable him to account for the true income of the assessee. The proven charge of under-invoicing per se satisfies the second condition. The appellants assessable income has to be determined on the basis of the price received by it for the goods exported. If the true price has not been disclosed and there was under-invoicing, the logical conclusion prima facie is that there has been failure on the part of the appellant to disclose fully and truly all material facts before the Income-tax Officer. We are, therefore, satisfied that both the conditions required to attract the provisions of section 147(a) have been complied with in this caseMr. K Rajgopal further argued that, in fact, the notice was issued under section 147(b) of the Act and under section 147(a) of the Act. We are unable to accept this contention. Although the notice only mentioned section 147 of the Act without indicating whether it was under section 147(a) or section 147(b), the reasons recorded by the Income-tax Officer on February 26, 1970, which run into more than 20 pages specifically state that the proposed action was under section 147(a) of the Act. Even otherwise, we are satisfied that the material on the record and the reasons recorded by the Income-tax Officer justify the issue of the notice under section 147(a) of the Act | 0[ds]So far as the first condition is concerned. The Income-tax Officer, in his recorded reasons, has relied upon the fact as found by the Customs Authorities that the Appellant had under-invoiced the goods it exported. It is no doubt correct that the said finding may not be binding upon the income-tax authorities but it can be a valid reason to believe that the chargeable income has been under-assessed. The final outcome of the proceedings is not relevant. What is relevant is the existence of reasons to make the Income-tax Officer believe that there has been under-assessment of the assessees income for a particular year. We are satisfied that the first condition to invoke the jurisdiction of the Income-tax Officer under section 147(a) of the Act was satisfiedAs regards the second condition, the appellant did not produce the books of account kept by them at their head office in London nor the original contracts of sale which were entitled into at London with the buyers. The appellant did not produce before the Income-tax Officer any of the accounts which related to the foreign buyers, No reasons were given for the supply of manganese ore at a rate lower than the market rate. It is for the assessee to disclose all the primary facts before the Income-tax Officer to enable him to account for the true income of the assessee. The proven charge of under-invoicing per se satisfies the second condition. The appellants assessable income has to be determined on the basis of the price received by it for the goods exported. If the true price has not been disclosed and there was under-invoicing, the logical conclusion prima facie is that there has been failure on the part of the appellant to disclose fully and truly all material facts before the Income-tax Officer. We are, therefore, satisfied that both the conditions required to attract the provisions of section 147(a) have been complied with in this caseMr. K Rajgopal further argued that, in fact, the notice was issued under section 147(b) of the Act and under section 147(a) of the Act. We are unable to accept this contention. Although the notice only mentioned section 147 of the Act without indicating whether it was under section 147(a) or section 147(b), the reasons recorded by the Income-tax Officer on February 26, 1970, which run into more than 20 pages specifically state that the proposed action was under section 147(a) of the Act. Even otherwise, we are satisfied that the material on the record and the reasons recorded by the Income-tax Officer justify the issue of the notice under section 147(a) of the Act | 0 | 1,663 | 494 | ### 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:
section 147 of the Act were not given. However, along with the return filed on behalf of the Revenue before the High Court, the reasons which led to the issue of notice under section 148 on the grounds mentioned under section 147(a) of the Act were disclosed. It is not disputed that the reasons need not be set out in the notice and the same can be produced before the court Section 147 of the Act provides for assessment or reassessment in cases where income has escaped assessment. The Revenues right to take action under the section is subject to the conditions laid down therein. The requisite conditions provided under section 147(a) at the relevant time were as under The Income-tax Officer should have reasons to believe that income has "escaped assessment" by reason of omission or failure on the part of the assessee -(i) to make a return of his income under the relevant provisions of the Act; or (ii) to disclose fully and truly all material facts necessary for his assessment for the year Section 147(b) of the Act, on the other hand, required that the Income-tax Officer should have, in consequence of information in his possession, reason to believe that income has "escaped assessment" It is not disputed that, in the year 1970, the Income-tax Officer had o jurisdiction to issue notice under section 148 on the grounds contained under section 147(b) of the Act as the period of limitation for the issue of such notice provided under the Act had expired. There was. However, no bar at that point of time to issue the said notice on the grounds under section 147 (a) of the Act Mr. K Rajgopal, Senior Advocate, learned counsel for the appellant, has contended that the Income-tax Officer could not have reason to believe that there was omission or failure on the part of the appellant to disclose fully and truly all material facts necessary for the assessment and that income chargeable to tax had escaped assessment, according to him it was not the practice with the appellant to produce the account books from their head office in London before the Income-tax Officer. The appellant-company produced before the Income-tax Officer the balance-sheets, profit and loss accounts and all other necessary records required for the purpose of assessment. According to learned counsel. The only material before the Income-tax Officer was the original order of the Collector of Customs wherein it was held that he appellant had indulged in under-invoicing, resulting in declaring lesser price than the prevailing market price. Learned counsel contended that the order Collector could, at the most, be information within the ambit of section 147(b) of the Act but it could not be the basis or the reason to entertain the belief as required under section 147(a) of the ActThe only question with arises for our consideration is as to whether the two conditions required to confer jurisdiction on the Income-tax Officer under section 147(a) of the Act have been satisfied in this case. The first is that the Income-tax Officer must have reason to believe that the income chargeable to income-tax had been under- assessed and the second that such under-assessment has occurred by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year 1953-54 So far as the first condition is concerned. The Income-tax Officer, in his recorded reasons, has relied upon the fact as found by the Customs Authorities that the Appellant had under-invoiced the goods it exported. It is no doubt correct that the said finding may not be binding upon the income-tax authorities but it can be a valid reason to believe that the chargeable income has been under-assessed. The final outcome of the proceedings is not relevant. What is relevant is the existence of reasons to make the Income-tax Officer believe that there has been under-assessment of the assessees income for a particular year. We are satisfied that the first condition to invoke the jurisdiction of the Income-tax Officer under section 147(a) of the Act was satisfiedAs regards the second condition, the appellant did not produce the books of account kept by them at their head office in London nor the original contracts of sale which were entitled into at London with the buyers. The appellant did not produce before the Income-tax Officer any of the accounts which related to the foreign buyers, No reasons were given for the supply of manganese ore at a rate lower than the market rate. It is for the assessee to disclose all the primary facts before the Income-tax Officer to enable him to account for the true income of the assessee. The proven charge of under-invoicing per se satisfies the second condition. The appellants assessable income has to be determined on the basis of the price received by it for the goods exported. If the true price has not been disclosed and there was under-invoicing, the logical conclusion prima facie is that there has been failure on the part of the appellant to disclose fully and truly all material facts before the Income-tax Officer. We are, therefore, satisfied that both the conditions required to attract the provisions of section 147(a) have been complied with in this caseMr. K Rajgopal further argued that, in fact, the notice was issued under section 147(b) of the Act and under section 147(a) of the Act. We are unable to accept this contention. Although the notice only mentioned section 147 of the Act without indicating whether it was under section 147(a) or section 147(b), the reasons recorded by the Income-tax Officer on February 26, 1970, which run into more than 20 pages specifically state that the proposed action was under section 147(a) of the Act. Even otherwise, we are satisfied that the material on the record and the reasons recorded by the Income-tax Officer justify the issue of the notice under section 147(a) of the Act
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### Explanation:
So far as the first condition is concerned. The Income-tax Officer, in his recorded reasons, has relied upon the fact as found by the Customs Authorities that the Appellant had under-invoiced the goods it exported. It is no doubt correct that the said finding may not be binding upon the income-tax authorities but it can be a valid reason to believe that the chargeable income has been under-assessed. The final outcome of the proceedings is not relevant. What is relevant is the existence of reasons to make the Income-tax Officer believe that there has been under-assessment of the assessees income for a particular year. We are satisfied that the first condition to invoke the jurisdiction of the Income-tax Officer under section 147(a) of the Act was satisfiedAs regards the second condition, the appellant did not produce the books of account kept by them at their head office in London nor the original contracts of sale which were entitled into at London with the buyers. The appellant did not produce before the Income-tax Officer any of the accounts which related to the foreign buyers, No reasons were given for the supply of manganese ore at a rate lower than the market rate. It is for the assessee to disclose all the primary facts before the Income-tax Officer to enable him to account for the true income of the assessee. The proven charge of under-invoicing per se satisfies the second condition. The appellants assessable income has to be determined on the basis of the price received by it for the goods exported. If the true price has not been disclosed and there was under-invoicing, the logical conclusion prima facie is that there has been failure on the part of the appellant to disclose fully and truly all material facts before the Income-tax Officer. We are, therefore, satisfied that both the conditions required to attract the provisions of section 147(a) have been complied with in this caseMr. K Rajgopal further argued that, in fact, the notice was issued under section 147(b) of the Act and under section 147(a) of the Act. We are unable to accept this contention. Although the notice only mentioned section 147 of the Act without indicating whether it was under section 147(a) or section 147(b), the reasons recorded by the Income-tax Officer on February 26, 1970, which run into more than 20 pages specifically state that the proposed action was under section 147(a) of the Act. Even otherwise, we are satisfied that the material on the record and the reasons recorded by the Income-tax Officer justify the issue of the notice under section 147(a) of the Act
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Landesban Baden-Wurttemberg Vs. Pushkaraj Packaging India Pvt. Ltd | registered office was at Mahalaxmi. It was in this context that the Court held, inter alia, in paragraph 8 that this made no difference for a statutory notice had admittedly been served at the companys Mahalaxmi address. Secondly, another notice was served at the Khar address, which was actually the registered office of the company. There was some dispute about this and it is in this context that the observations in paragraphs 13, 14 and 15 of this judgment came to be made. The Ispat Court not only examined Section 434(1)(a) of the Companies Act, 1956, but also Section 27 of the General Clauses Act and relied on certain observations from a treatise on interpretation of statutes. A decision of the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan & Another (1999) 7 SCC 510 was cited to the effect that a notice returned as unclaimed is presumed to have been served. That decision, however, was under Section 138 of the Negotiable Instruments Act, not the Companies Act at all. There were no words of the kind we find in Section 434(1)(a). It was to stop in their tracks fraudsters issuing bad cheques that the Court took such a liberal view. On the other hand, none of the decisions of the Division Bench in N.L. Mehta Cinema Enterprises; of the learned Single Judge in Kold-Hold Industries; and of another learned single Judge in Randhir Steel Alloys were cited before the Ispat Court. These are directly on the question of service of notice under Section 434(1)(a) and not a general question of service of notices. All three were binding. Whether or not the want of consideration of these judgments renders the Ispat decision per incuriam is a matter that I decline to address at this stage. I do not think it is necessary. For, in my view, the facts in the Ispat case were so entirely different that this case can be distinguished from that judgment on that ground alone. Apart from anything else, in the matter before the Ispat Court, service was actually effected on two separate addresses. The only question was which of these was the statutory notice and which of these was the corrected registered address at the time. The decision in Ispat does not lend itself to the kind of overbroad generalisation that Ms. Srivastava commends; and I do not find from her any answer to the three binding decision squarely on point in N.L. Mehta Cinema Enterprises, Kold-Hold Industries, and Randhir Steel Alloys. I am bound by all three, and one of these is a decision of a Division Bench. 18. I must note that in the case before me all that we have is two alphabets I.P. and these, I am told to assume without proof, man Intimation Posted. Even if this is true, this is not refusal of delivery. This is not sufficient proof that the packet was returned unclaimed. This is only indication that intimation was posted. It is no better than saying that a letter was sent by registered post. It does satisfy the requirement of Section 434(1)(a) of having a letter by registered post (or other means; clearly hand-delivery is good enough) actually delivered. Something further would be required to be shown to establish that delivery was refused though attempted. 19. Matters might have been different if the Petitioners would have been able to establish that they had tried again to send that notice by registered post or hand-delivery and that the fresh notice had once again met the same fate. Even this material is not on record. In any case, there are the words or other means. This presumably allows for delivery by hand; none was attempted. 20. There is also the matter of correctness of this endorsement on the packets and the curious question of why the Petitioner did not attempt hand-delivery. Mr. Purohit shows me an Inward Register (though the printing is to the contrary) maintained between January 2013 and going on well into 2016. There are entries through February 2013, including around the time of the date of the statutory notice. Mr. Purohit points out that in the regular course there are entries showing correspondence received even from this particular Petitioner. That is the entry at Serial No. 154 of 4th April 2013. There is another entry of 15th April 2013 and yet another of 21st October 2013. The endorsement on the packet at page 141 is dated 25th February 2013. I find this extremely strange because in this register there are at least eight entries of that very date of letters received by the Respondent from various other parties. There are several too over the next few days. In other words, Mr. Purohit says, the registered office was open and functioning. Letters were being received and all were entered in various modes. There are later letters received from this very Petitioner. The Respondent had no cause to refuse delivery, and it did not in fact refuse delivery. None was attempted, that is all; and that is what the material shows. 21. Therefore, even on the ground of want of service of the statutory notice, I would have been moved to dismiss this Petition, reserving, however, liberty to the Petitioner to file a fresh Petition after issuance of a fresh notice. In either case, the result would have been almost the same, but given the previous order of 7th December 2015, I do not see how I can even reserve that liberty to the present Petitioner. 22. I am unable to find any merit in the distinctions that I am asked to draw, viz., that the contract in question was a different contract from that before the Court on 7th December 2015; that the Petitioner was a different Petitioner; and that the machines involved and the underlying contracts were different. The same defence was taken in Company Petition No. 340 of 2013 against another guarantor as is taken here. That Petition was dismissed. So must this. | 0[ds]I understand this to mean that in his formulation of it, the Respondents liability as guarantor cannot be separated from the liability of the principal borrower S.K. Agrotech Ltd. In other words, if S.K. Agrotech Ltd. has a grievance with its supplier, this is sufficient to raise a bona fide dispute and a valid defence to the present Petition, one brought by a lender against a guarantor.4. Today my attention is drawn to an order dated 7th December 2015 passed, apparently, in Company Petition No. 340 of 2013. It seems that in that order the title taken was of a group of Company Petitions, including the present Petition. However, what seems to have been disposed of was only Company Petition Nos. 340 and 341 of 2013. In that order, the Court dealt, inter alia, with a situation that is substantially similar to the one in this case. The principal borrower there was also S.K. Agrotech Industries Limited. In that case, as in the present one, an irrevocable and conditional guarantee was required by the Respondent- guarantor . That guarantee was furnished. The Petition was filed on the basis of that guarantee.5. There, as here, the Respondent-guarantor contended, inter alia, that the machinery imported by the principal borrower was defective and did not function satisfactorily. A considerable amount of correspondence was relied on. Ultimately, the Court held that it could not be said that the defence was not bona fide.6. It is to be noted that Company Petition No. 341 of 2013 was against the principal borrower (S.K. Agrotech) and Company Petition No. 340 of 2013 was against one of three guarantor. In the present case also, the principal borrower is S.K. Agrotech Industries Limited and the present Respondent is another one of the three guarantors. Left to myself, I would have drawn a distinction between the Petition brought on a guarantee and the Petition brought on the contract with the principal borrower. The latter, against the principal borrower, might have required very different considerations from an action against a guarantor.7. Having said that, I do not believe that I can draw that distinction, for the order of 7th December 2015 passed by Honble Mr. Justice K.R. Shriram also deals with the case where the Respondent in one of the two Petitions before him was a guarantor. The result of that order was a finding that the defence is substantial. Indeed, paragraph 8 of the order dismisses Company Petition No. 340 of 2013. That was the Petition that was filed not against the principal borrower but against the guarantor.8. Whatever may be my view, I am bound by the order of Honble Mr. Justice K.R. Shriram. I cannot go behind it. I certainly cannot sit in appeal over it. Nothing is shown to me to indicate that that order was per incuriam. It is not enough to ask me to take a different and contrary view, at least not on facts that are so close. This I cannot do as a matter of law.I do not see how this helps her at all. That paragraph refers to a decision of the Delhi High Court in which a statutory notice was returned with a remark that the addressee had left the premises. The Delhi High Court in that case held that it is the duty of the Company in law to maintain a proper registered office at which it can be served. Proceedings against a company cannot be invalidated by the companys own acts of illegality. This was the consideration of the Delhi High Court and the Division Bench of this Court.12. I believe he is correct in saying that service by post under Section 27 of the General Clauses Act is distinct from the requirement of Section 434(1)(a).13. Clearly, the requirement in the Companies Act, 1956 is not merely that it should be sent by registered post or otherwise. It uses a different language. It uses the all-important words by causing it to be delivered at its registered office. This requires actual delivery of the notice. In this context, Mr. Purohit cites a decision of a learned Single Judge of this Court in Vysya Bank Limited v. Randhir Steel and Alloys (P) Limited,1993 (76) Company Cases 244 where precisely the same question arose. The Court observed thus:Now, in the present case, the Petitioners sent the notice by registered post to the companys registered office but it was returned to the Petitioners undelivered and unserved. Thereafter the Petitioners sent the notice to the company at 89/19, Ramesh Bhawan, first floor, TambaKanta, Bombay 400 003. It is on this basis that it is claimed on behalf of the Petitioners that they have complied with the provisions of section 434(1)(a) of the Companies Act. I do not agree. The provisions of section 434(1)(a) have already been reproduced above. The demand in question has to be served on the company and what amounts to serving on the company has been laid down in the said clause (a) of sub-section (1) of section 434 itself by stating by causing it to be delivered at its registered office. Admittedly, the demand was not delivered at the registered office of the company.14. Mr. Purohit is also correct in relying on the decision of a learned Single Judge of this Court in Kold-Hold Industries (P) Limited v. Arabian Exports Limited(2004) 55 SCL 131 (Bom.) saying that there is no question of substantial compliance with the provisions of Section 434 of the Companies Act, 1956.15. In that case, it was found that the notice was sent to a previous registered office address although the Company had been careful to intimate its application for change of registered address well in advance. The Court held that it is the duty of the Company to ensure that its correct registered office is maintained in the official records. Following the decision of the Division Bench of this Court in N.L. Mehta Cinema Enterprises (P) Limited v. Pravinchandra P. Mehta,(1991) 70 Comp. Cas. 31 (Bom.) the learned Single Judge held that the requirement under Section 434 of serving a demand notice on the registered office of the Company is mandatory and has to be strictly complied with. There is, therefore, no question of substantial compliance with this provision. This concept comes in only where a provision is held to be directory.This is a complete misreading of Mr. Justice S.J. Kathawallas order. He said nothing of the kind. He was not even dealing with a case under Section 434(1)(a). He was considering the question of service of a notice under Rule 28 of the Company (Court) Rules, 1959, after an order of admission and advertisement had been made. This is hardly a decision that can be extended even by implication to Section 434 of the Companies Act, 1956.There, the Court had before it a case where a notice despatched by post with the correct address was returned unclaimed. In that case, not one but three statutory notices were sent between October 1999 and April 2000. The first of these was sent to the office at Mahalaxmi, Mumbai. The second two were served at the Pune and Khar (Mumbai) offices respectively. A further statutory notice was sent on 21st July 2000 to the Pune Office. The company contended that its registered office was at Mahalaxmi. It was in this context that the Court held, inter alia, in paragraph 8 that this made no difference for a statutory notice had admittedly been served at the companys Mahalaxmi address. Secondly, another notice was served at the Khar address, which was actually the registered office of the company. There was some dispute about this and it is in this context that the observations in paragraphs 13, 14 and 15 of this judgment came to be made. The Ispat Court not only examined Section 434(1)(a) of the Companies Act, 1956, but also Section 27 of the General Clauses Act and relied on certain observations from a treatise on interpretation of statutes. A decision of the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan & Another(1999) 7 SCC 510 was cited to the effect that a notice returned as unclaimed is presumed to have been served. That decision, however, was under Section 138 of the Negotiable Instruments Act, not the Companies Act at all. There were no words of the kind we find in Section 434(1)(a). It was to stop in their tracks fraudsters issuing bad cheques that the Court took such a liberal view. On the other hand, none of the decisions of the Division Bench in N.L. Mehta Cinema Enterprises; of the learned Single Judge in Kold-Hold Industries; and of another learned single Judge in Randhir Steel Alloys were cited before the Ispat Court. These are directly on the question of service of notice under Section 434(1)(a) and not a general question of service of notices. All three were binding. Whether or not the want of consideration of these judgments renders the Ispat decision per incuriam is a matter that I decline to address at this stage. I do not think it is necessary. For, in my view, the facts in the Ispat case were so entirely different that this case can be distinguished from that judgment on that ground alone. Apart from anything else, in the matter before the Ispat Court, service was actually effected on two separate addresses. The only question was which of these was the statutory notice and which of these was the corrected registered address at the time. The decision in Ispat does not lend itself to the kind of overbroad generalisation that Ms. Srivastava commends; and I do not find from her any answer to the three binding decision squarely on point in N.L. Mehta Cinema Enterprises, Kold-Hold Industries, and Randhir Steel Alloys. I am bound by all three, and one of these is a decision of a Division Bench.18. I must note that in the case before me all that we have is two alphabets I.P. and these, I am told to assume without proof, man Intimation Posted. Even if this is true, this is not refusal of delivery. This is not sufficient proof that the packet was returned unclaimed. This is only indication that intimation was posted. It is no better than saying that a letter was sent by registered post. It does satisfy the requirement of Section 434(1)(a) of having a letter by registered post (or other means; clearly hand-delivery is good enough) actually delivered. Something further would be required to be shown to establish that delivery was refused though attempted.19. Matters might have been different if the Petitioners would have been able to establish that they had tried again to send that notice by registered post or hand-delivery and that the fresh notice had once again met the same fate. Even this material is not on record. In any case, there are the words or other means. This presumably allows for delivery by hand; none was attempted.20. There is also the matter of correctness of this endorsement on the packets and the curious question of why the Petitioner did not attempt hand-delivery. Mr. Purohit shows me an Inward Register (though the printing is to the contrary) maintained between January 2013 and going on well into 2016. There are entries through February 2013, including around the time of the date of the statutory notice. Mr. Purohit points out that in the regular course there are entries showing correspondence received even from this particular Petitioner. That is the entry at Serial No. 154 of 4th April 2013. There is another entry of 15th April 2013 and yet another of 21st October 2013. The endorsement on the packet at page 141 is dated 25th February 2013. I find this extremely strange because in this register there are at least eight entries of that very date of letters received by the Respondent from various other parties. There are several too over the next few days. In other words, Mr. Purohit says, the registered office was open and functioning. Letters were being received and all were entered in various modes. There are later letters received from this very Petitioner. The Respondent had no cause to refuse delivery, and it did not in fact refuse delivery. None was attempted, that is all; and that is what the material shows.21. Therefore, even on the ground of want of service of the statutory notice, I would have been moved to dismiss this Petition, reserving, however, liberty to the Petitioner to file a fresh Petition after issuance of a fresh notice. In either case, the result would have been almost the same, but given the previous order of 7th December 2015, I do not see how I can even reserve that liberty to the present Petitioner.22. I am unable to find any merit in the distinctions that I am asked to draw, viz., that the contract in question was a different contract from that before the Court on 7th December 2015; that the Petitioner was a different Petitioner; and that the machines involved and the underlying contracts were different. The same defence was taken in Company Petition No. 340 of 2013 against another guarantor as is taken here. That Petition was dismissed. So must this. | 0 | 3,660 | 2,525 | ### 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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registered office was at Mahalaxmi. It was in this context that the Court held, inter alia, in paragraph 8 that this made no difference for a statutory notice had admittedly been served at the companys Mahalaxmi address. Secondly, another notice was served at the Khar address, which was actually the registered office of the company. There was some dispute about this and it is in this context that the observations in paragraphs 13, 14 and 15 of this judgment came to be made. The Ispat Court not only examined Section 434(1)(a) of the Companies Act, 1956, but also Section 27 of the General Clauses Act and relied on certain observations from a treatise on interpretation of statutes. A decision of the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan & Another (1999) 7 SCC 510 was cited to the effect that a notice returned as unclaimed is presumed to have been served. That decision, however, was under Section 138 of the Negotiable Instruments Act, not the Companies Act at all. There were no words of the kind we find in Section 434(1)(a). It was to stop in their tracks fraudsters issuing bad cheques that the Court took such a liberal view. On the other hand, none of the decisions of the Division Bench in N.L. Mehta Cinema Enterprises; of the learned Single Judge in Kold-Hold Industries; and of another learned single Judge in Randhir Steel Alloys were cited before the Ispat Court. These are directly on the question of service of notice under Section 434(1)(a) and not a general question of service of notices. All three were binding. Whether or not the want of consideration of these judgments renders the Ispat decision per incuriam is a matter that I decline to address at this stage. I do not think it is necessary. For, in my view, the facts in the Ispat case were so entirely different that this case can be distinguished from that judgment on that ground alone. Apart from anything else, in the matter before the Ispat Court, service was actually effected on two separate addresses. The only question was which of these was the statutory notice and which of these was the corrected registered address at the time. The decision in Ispat does not lend itself to the kind of overbroad generalisation that Ms. Srivastava commends; and I do not find from her any answer to the three binding decision squarely on point in N.L. Mehta Cinema Enterprises, Kold-Hold Industries, and Randhir Steel Alloys. I am bound by all three, and one of these is a decision of a Division Bench. 18. I must note that in the case before me all that we have is two alphabets I.P. and these, I am told to assume without proof, man Intimation Posted. Even if this is true, this is not refusal of delivery. This is not sufficient proof that the packet was returned unclaimed. This is only indication that intimation was posted. It is no better than saying that a letter was sent by registered post. It does satisfy the requirement of Section 434(1)(a) of having a letter by registered post (or other means; clearly hand-delivery is good enough) actually delivered. Something further would be required to be shown to establish that delivery was refused though attempted. 19. Matters might have been different if the Petitioners would have been able to establish that they had tried again to send that notice by registered post or hand-delivery and that the fresh notice had once again met the same fate. Even this material is not on record. In any case, there are the words or other means. This presumably allows for delivery by hand; none was attempted. 20. There is also the matter of correctness of this endorsement on the packets and the curious question of why the Petitioner did not attempt hand-delivery. Mr. Purohit shows me an Inward Register (though the printing is to the contrary) maintained between January 2013 and going on well into 2016. There are entries through February 2013, including around the time of the date of the statutory notice. Mr. Purohit points out that in the regular course there are entries showing correspondence received even from this particular Petitioner. That is the entry at Serial No. 154 of 4th April 2013. There is another entry of 15th April 2013 and yet another of 21st October 2013. The endorsement on the packet at page 141 is dated 25th February 2013. I find this extremely strange because in this register there are at least eight entries of that very date of letters received by the Respondent from various other parties. There are several too over the next few days. In other words, Mr. Purohit says, the registered office was open and functioning. Letters were being received and all were entered in various modes. There are later letters received from this very Petitioner. The Respondent had no cause to refuse delivery, and it did not in fact refuse delivery. None was attempted, that is all; and that is what the material shows. 21. Therefore, even on the ground of want of service of the statutory notice, I would have been moved to dismiss this Petition, reserving, however, liberty to the Petitioner to file a fresh Petition after issuance of a fresh notice. In either case, the result would have been almost the same, but given the previous order of 7th December 2015, I do not see how I can even reserve that liberty to the present Petitioner. 22. I am unable to find any merit in the distinctions that I am asked to draw, viz., that the contract in question was a different contract from that before the Court on 7th December 2015; that the Petitioner was a different Petitioner; and that the machines involved and the underlying contracts were different. The same defence was taken in Company Petition No. 340 of 2013 against another guarantor as is taken here. That Petition was dismissed. So must this.
### Response:
0
### Explanation:
that its registered office was at Mahalaxmi. It was in this context that the Court held, inter alia, in paragraph 8 that this made no difference for a statutory notice had admittedly been served at the companys Mahalaxmi address. Secondly, another notice was served at the Khar address, which was actually the registered office of the company. There was some dispute about this and it is in this context that the observations in paragraphs 13, 14 and 15 of this judgment came to be made. The Ispat Court not only examined Section 434(1)(a) of the Companies Act, 1956, but also Section 27 of the General Clauses Act and relied on certain observations from a treatise on interpretation of statutes. A decision of the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan & Another(1999) 7 SCC 510 was cited to the effect that a notice returned as unclaimed is presumed to have been served. That decision, however, was under Section 138 of the Negotiable Instruments Act, not the Companies Act at all. There were no words of the kind we find in Section 434(1)(a). It was to stop in their tracks fraudsters issuing bad cheques that the Court took such a liberal view. On the other hand, none of the decisions of the Division Bench in N.L. Mehta Cinema Enterprises; of the learned Single Judge in Kold-Hold Industries; and of another learned single Judge in Randhir Steel Alloys were cited before the Ispat Court. These are directly on the question of service of notice under Section 434(1)(a) and not a general question of service of notices. All three were binding. Whether or not the want of consideration of these judgments renders the Ispat decision per incuriam is a matter that I decline to address at this stage. I do not think it is necessary. For, in my view, the facts in the Ispat case were so entirely different that this case can be distinguished from that judgment on that ground alone. Apart from anything else, in the matter before the Ispat Court, service was actually effected on two separate addresses. The only question was which of these was the statutory notice and which of these was the corrected registered address at the time. The decision in Ispat does not lend itself to the kind of overbroad generalisation that Ms. Srivastava commends; and I do not find from her any answer to the three binding decision squarely on point in N.L. Mehta Cinema Enterprises, Kold-Hold Industries, and Randhir Steel Alloys. I am bound by all three, and one of these is a decision of a Division Bench.18. I must note that in the case before me all that we have is two alphabets I.P. and these, I am told to assume without proof, man Intimation Posted. Even if this is true, this is not refusal of delivery. This is not sufficient proof that the packet was returned unclaimed. This is only indication that intimation was posted. It is no better than saying that a letter was sent by registered post. It does satisfy the requirement of Section 434(1)(a) of having a letter by registered post (or other means; clearly hand-delivery is good enough) actually delivered. Something further would be required to be shown to establish that delivery was refused though attempted.19. Matters might have been different if the Petitioners would have been able to establish that they had tried again to send that notice by registered post or hand-delivery and that the fresh notice had once again met the same fate. Even this material is not on record. In any case, there are the words or other means. This presumably allows for delivery by hand; none was attempted.20. There is also the matter of correctness of this endorsement on the packets and the curious question of why the Petitioner did not attempt hand-delivery. Mr. Purohit shows me an Inward Register (though the printing is to the contrary) maintained between January 2013 and going on well into 2016. There are entries through February 2013, including around the time of the date of the statutory notice. Mr. Purohit points out that in the regular course there are entries showing correspondence received even from this particular Petitioner. That is the entry at Serial No. 154 of 4th April 2013. There is another entry of 15th April 2013 and yet another of 21st October 2013. The endorsement on the packet at page 141 is dated 25th February 2013. I find this extremely strange because in this register there are at least eight entries of that very date of letters received by the Respondent from various other parties. There are several too over the next few days. In other words, Mr. Purohit says, the registered office was open and functioning. Letters were being received and all were entered in various modes. There are later letters received from this very Petitioner. The Respondent had no cause to refuse delivery, and it did not in fact refuse delivery. None was attempted, that is all; and that is what the material shows.21. Therefore, even on the ground of want of service of the statutory notice, I would have been moved to dismiss this Petition, reserving, however, liberty to the Petitioner to file a fresh Petition after issuance of a fresh notice. In either case, the result would have been almost the same, but given the previous order of 7th December 2015, I do not see how I can even reserve that liberty to the present Petitioner.22. I am unable to find any merit in the distinctions that I am asked to draw, viz., that the contract in question was a different contract from that before the Court on 7th December 2015; that the Petitioner was a different Petitioner; and that the machines involved and the underlying contracts were different. The same defence was taken in Company Petition No. 340 of 2013 against another guarantor as is taken here. That Petition was dismissed. So must this.
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Union Of India Vs. Modi Industries Ltd. | 29 will cover a revision of rates made by the railway authority in terms of a contract but the matter seems to stand concluded by the decision of this court in Union of India v. The Indian Sugar Mills Association, Calcutta, (1967) 3 SCR 2l9=(AIR 1968 SC 22 ) according to which it is immaterial that the charges being levied by the railway administration arise as a result of a voluntary agreement. The real difficulties in the way of the appellant are two fold; firstly, if any question arises about the validity of a clause of a contract that will be entertainable by a civil court. As laid down in Raichand Amulakh Shah v. Union of India, (1964) 5 SCR 148 (AIR l964 SC 1268) the Railways Tribunal has no jurisdiction to decide whether the rules empowering the railway administration to levy a particular charge are ultra vires or whether the railway administration collected amounts in excess of the charges which it can legally levy under a rule. In Upper Doab Sugar Mills Ltd. v. Shahdara (Delhi) Saharanpur Light Rly. Co. Ltd. (1963) 2 SCR 333 at p. 342 = (AIR 1963 SC 217 ) two main points arose; one was whether the Railway Tribunal had jurisdiction to entertain the complaint as regards the reasonableness of the rates prior to the institution of the complaint and the other was whether it had jurisdiction to grant refund for the aforesaid period. This is what was said by Das Gupta J.,: The words charging in cl. (b) and levying in cl. (c) were used in the one and the same sense. We find it impossible to agree however that they were used to include collecting. It appears to be clear that if the intention of the legislature was to give the Tribunal jurisdiction over complaints in connection with charges already made the legislature would have used the words has charged and charging and would not merely say is charging. Special jurisdiction of such a nature would be given clearly and the very fact that the words has charged have not been used is sufficient ground for thinking that it was not the legislatures intention to give the Tribunal jurisdiction over complaints in connection with charges made in the past. In our opinion, the words is charging in cl. (b) and is levying in cl. (c) must be construed to mean is demanding a price at the present time for services to be rendered. Coming to the facts of the present case it is apparent that one of the main questions involved was whether cl. 23 of the contract between the parties was not void because it contravened S. 29 of the Indian Contract Act. Another question which had to be investigated was whether a proper notice regarding the enhancement of rates had been given in accordance with the terms of the said agreement. From the facts which have been started it appears that the rates were being revised and actually enhanced the rates but then the matter was kept pending and there was exchange of correspondence and discussion between the parties from time to time. No effort was made to enforce the demand made in the various letters and the plaintiff was allowed to make payments according to the rates originally agreed. It was only in May 1957 that the plaintiff was really threatened to make payment of the outstanding amount calculated at the revised rates on pain of the supply of wagons being stopped and the agreement being determined. It is somewhat surprising that in September 1955 the rates which were revised were very much less than those which were demanded for the prior period. The position thus remained in a flexible state and there is a good deal of substance in the submission on behalf of the plaintiff-respondent that a complaint was not filed under S. 41 of the Act because the rates which were being paid and actually accepted were the same as the contractual rates and not the revised or enhanced rates. According to the decisions of this court referred to before it was hardly open to the plaintiff to file a complaint with regard to the reasonableness or otherwise of the rates and charges which had already become due and payable. The plaintiff had no grievance whatsoever with regard to the charges which had been fixed with effect from April 1, 1956 by means of the letter dated September 29, 1955 and therefore there was no question of its filing a complaint with regard to those charges. Its grievance was confined only to the amount which was being demanded on the basis of the revised enhanced rates between the period December 1, 1949 and March 1, 1956. If that amount had actually been realised by the railway authorities the plaintiff could only file a suit for its refund and could not have laid a complaint under Section 41 of the Act before the Railway Tribunal. By analogy the plaintiff could not have filed a complaint with regard to past dues as the Railway Tribunal could not have given any relief in respect thereof following the law laid down by this court. In this view of the matter apart from other questions involving the validity of clause 23 of the agreement as also of the notice or intimation of enhancement of rates on the ground of non-compliance with its terms the suit could not be held barred under S. 26 of the Act and the civil court could grant the relief claimed. 9. We have not been shown any serious infirmity in the reasoning of the High Court by which it arrived at the conclusion that the question of reasonableness of the charges, keeping in mind the facts of this case, was justiciable. Nor has any justification been shown for reopening the concurrent finding of the two courts below that the rates which were demanded for the period in question were unreasonable. The suit was thus rightly decreed. | 0[ds]Coming to the facts of the present case it is apparent that one of the main questions involved was whether cl. 23 of the contract between the parties was not void because it contravened S. 29 of the Indian Contract Act. Another question which had to be investigated was whether a proper notice regarding the enhancement of rates had been given in accordance with the terms of the said agreement. From the facts which have been started it appears that the rates were being revised and actually enhanced the rates but then the matter was kept pending and there was exchange of correspondence and discussion between the parties from time to time. No effort was made to enforce the demand made in the various letters and the plaintiff was allowed to make payments according to the rates originally agreed. It was only in May 1957 that the plaintiff was really threatened to make payment of the outstanding amount calculated at the revised rates on pain of the supply of wagons being stopped and the agreement being determined. It is somewhat surprising that in September 1955 the rates which were revised were very much less than those which were demanded for the prior period. The position thus remained in a flexible state and there is a good deal of substance in the submission on behalf of the plaintiff-respondent that a complaint was not filed under S. 41 of the Act because the rates which were being paid and actually accepted were the same as the contractual rates and not the revised or enhanced rates. According to the decisions of this court referred to before it was hardly open to the plaintiff to file a complaint with regard to the reasonableness or otherwise of the rates and charges which had already become due and payable. The plaintiff had no grievance whatsoever with regard to the charges which had been fixed with effect from April 1, 1956 by means of the letter dated September 29, 1955 and therefore there was no question of its filing a complaint with regard to those charges. Its grievance was confined only to the amount which was being demanded on the basis of the revised enhanced rates between the period December 1, 1949 and March 1, 1956. If that amount had actually been realised by the railway authorities the plaintiff could only file a suit for its refund and could not have laid a complaint under Section 41 of the Act before the Railway Tribunal. By analogy the plaintiff could not have filed a complaint with regard to past dues as the Railway Tribunal could not have given any relief in respect thereof following the law laid down by this court. In this view of the matter apart from other questions involving the validity of clause 23 of the agreement as also of the notice or intimation of enhancement of rates on the ground of non-compliance with its terms the suit could not be held barred under S. 26 of the Act and the civil court could grant the relief claimed9. We have not been shown any serious infirmity in the reasoning of the High Court by which it arrived at the conclusion that the question of reasonableness of the charges, keeping in mind the facts of this case, was justiciable. Nor has any justification been shown for reopening the concurrent finding of the two courts below that the rates which were demanded for the period in question were unreasonable. The suit was thus rightly decreed. | 0 | 3,252 | 615 | ### 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:
29 will cover a revision of rates made by the railway authority in terms of a contract but the matter seems to stand concluded by the decision of this court in Union of India v. The Indian Sugar Mills Association, Calcutta, (1967) 3 SCR 2l9=(AIR 1968 SC 22 ) according to which it is immaterial that the charges being levied by the railway administration arise as a result of a voluntary agreement. The real difficulties in the way of the appellant are two fold; firstly, if any question arises about the validity of a clause of a contract that will be entertainable by a civil court. As laid down in Raichand Amulakh Shah v. Union of India, (1964) 5 SCR 148 (AIR l964 SC 1268) the Railways Tribunal has no jurisdiction to decide whether the rules empowering the railway administration to levy a particular charge are ultra vires or whether the railway administration collected amounts in excess of the charges which it can legally levy under a rule. In Upper Doab Sugar Mills Ltd. v. Shahdara (Delhi) Saharanpur Light Rly. Co. Ltd. (1963) 2 SCR 333 at p. 342 = (AIR 1963 SC 217 ) two main points arose; one was whether the Railway Tribunal had jurisdiction to entertain the complaint as regards the reasonableness of the rates prior to the institution of the complaint and the other was whether it had jurisdiction to grant refund for the aforesaid period. This is what was said by Das Gupta J.,: The words charging in cl. (b) and levying in cl. (c) were used in the one and the same sense. We find it impossible to agree however that they were used to include collecting. It appears to be clear that if the intention of the legislature was to give the Tribunal jurisdiction over complaints in connection with charges already made the legislature would have used the words has charged and charging and would not merely say is charging. Special jurisdiction of such a nature would be given clearly and the very fact that the words has charged have not been used is sufficient ground for thinking that it was not the legislatures intention to give the Tribunal jurisdiction over complaints in connection with charges made in the past. In our opinion, the words is charging in cl. (b) and is levying in cl. (c) must be construed to mean is demanding a price at the present time for services to be rendered. Coming to the facts of the present case it is apparent that one of the main questions involved was whether cl. 23 of the contract between the parties was not void because it contravened S. 29 of the Indian Contract Act. Another question which had to be investigated was whether a proper notice regarding the enhancement of rates had been given in accordance with the terms of the said agreement. From the facts which have been started it appears that the rates were being revised and actually enhanced the rates but then the matter was kept pending and there was exchange of correspondence and discussion between the parties from time to time. No effort was made to enforce the demand made in the various letters and the plaintiff was allowed to make payments according to the rates originally agreed. It was only in May 1957 that the plaintiff was really threatened to make payment of the outstanding amount calculated at the revised rates on pain of the supply of wagons being stopped and the agreement being determined. It is somewhat surprising that in September 1955 the rates which were revised were very much less than those which were demanded for the prior period. The position thus remained in a flexible state and there is a good deal of substance in the submission on behalf of the plaintiff-respondent that a complaint was not filed under S. 41 of the Act because the rates which were being paid and actually accepted were the same as the contractual rates and not the revised or enhanced rates. According to the decisions of this court referred to before it was hardly open to the plaintiff to file a complaint with regard to the reasonableness or otherwise of the rates and charges which had already become due and payable. The plaintiff had no grievance whatsoever with regard to the charges which had been fixed with effect from April 1, 1956 by means of the letter dated September 29, 1955 and therefore there was no question of its filing a complaint with regard to those charges. Its grievance was confined only to the amount which was being demanded on the basis of the revised enhanced rates between the period December 1, 1949 and March 1, 1956. If that amount had actually been realised by the railway authorities the plaintiff could only file a suit for its refund and could not have laid a complaint under Section 41 of the Act before the Railway Tribunal. By analogy the plaintiff could not have filed a complaint with regard to past dues as the Railway Tribunal could not have given any relief in respect thereof following the law laid down by this court. In this view of the matter apart from other questions involving the validity of clause 23 of the agreement as also of the notice or intimation of enhancement of rates on the ground of non-compliance with its terms the suit could not be held barred under S. 26 of the Act and the civil court could grant the relief claimed. 9. We have not been shown any serious infirmity in the reasoning of the High Court by which it arrived at the conclusion that the question of reasonableness of the charges, keeping in mind the facts of this case, was justiciable. Nor has any justification been shown for reopening the concurrent finding of the two courts below that the rates which were demanded for the period in question were unreasonable. The suit was thus rightly decreed.
### Response:
0
### Explanation:
Coming to the facts of the present case it is apparent that one of the main questions involved was whether cl. 23 of the contract between the parties was not void because it contravened S. 29 of the Indian Contract Act. Another question which had to be investigated was whether a proper notice regarding the enhancement of rates had been given in accordance with the terms of the said agreement. From the facts which have been started it appears that the rates were being revised and actually enhanced the rates but then the matter was kept pending and there was exchange of correspondence and discussion between the parties from time to time. No effort was made to enforce the demand made in the various letters and the plaintiff was allowed to make payments according to the rates originally agreed. It was only in May 1957 that the plaintiff was really threatened to make payment of the outstanding amount calculated at the revised rates on pain of the supply of wagons being stopped and the agreement being determined. It is somewhat surprising that in September 1955 the rates which were revised were very much less than those which were demanded for the prior period. The position thus remained in a flexible state and there is a good deal of substance in the submission on behalf of the plaintiff-respondent that a complaint was not filed under S. 41 of the Act because the rates which were being paid and actually accepted were the same as the contractual rates and not the revised or enhanced rates. According to the decisions of this court referred to before it was hardly open to the plaintiff to file a complaint with regard to the reasonableness or otherwise of the rates and charges which had already become due and payable. The plaintiff had no grievance whatsoever with regard to the charges which had been fixed with effect from April 1, 1956 by means of the letter dated September 29, 1955 and therefore there was no question of its filing a complaint with regard to those charges. Its grievance was confined only to the amount which was being demanded on the basis of the revised enhanced rates between the period December 1, 1949 and March 1, 1956. If that amount had actually been realised by the railway authorities the plaintiff could only file a suit for its refund and could not have laid a complaint under Section 41 of the Act before the Railway Tribunal. By analogy the plaintiff could not have filed a complaint with regard to past dues as the Railway Tribunal could not have given any relief in respect thereof following the law laid down by this court. In this view of the matter apart from other questions involving the validity of clause 23 of the agreement as also of the notice or intimation of enhancement of rates on the ground of non-compliance with its terms the suit could not be held barred under S. 26 of the Act and the civil court could grant the relief claimed9. We have not been shown any serious infirmity in the reasoning of the High Court by which it arrived at the conclusion that the question of reasonableness of the charges, keeping in mind the facts of this case, was justiciable. Nor has any justification been shown for reopening the concurrent finding of the two courts below that the rates which were demanded for the period in question were unreasonable. The suit was thus rightly decreed.
|
Laxmi Organic Industries Limited Vs. Union of India & Others | to the notice of the Board by exporters, trade associations and the field formations that with this amendment the benefit of availing of exemption from bank guarantee will be denied even before the show cause notice proposing imposition of penalty has been adjudicated.4. The Board has reviewed the matter and considers that the position of not having been penalized should be restored. Accordingly, the para 3.2(c) of Circular 58/2004-Cus shall be read as follows:(c) The License holder should not have been penalized during the previous three financial years in cases booked against him related to Customs, Central Excise or Service Tax under the provisions of the Customs Act, 1962, the Central Excise Act, 1944, the Finance Act, 1994 (for Service Tax), as detailed below:(a) Cases of duty evasion involving misdeclaration / misstatement/ collusion / willful suppression / fraudulent intent whether or not extended period for issue of show cause notice has been invoked.(b) Cases of misdeclaration and/or clandestine/unauthorized removal of excisable / import / export goods warranting confiscation of said goods.(c) Cases of misdeclaration /misstatement / collusion / willful suppression / fraudulent intent aimed at availing CENVAT credit, rebate, refund, drawback, benefits under export promotion/reward schemes.(d) Cases wherein Customs/Excise duties and Service Tax has been collected but not deposited with the exchequer.(e) Cases of non-registration with the Department with intent to evade payment of duty / tax. or in cases booked against him under the Foreign Exchange Management Act (FEMA), 1999 or the Foreign Trade (Development and Regulation) Act, 1992. In order to ascertain/verify whether the License/Authorization holder meets this criterion he may be asked to furnish an affidavit. The Commissioners shall ensure that some of the affidavits furnished are cross checked randomly with the field formations for their veracity..5. It may be noted that the other conditions in Para 3.2 of the Circular No.58/2004-Cus dated 21-10-2004 remain unchanged. These instructions may be brought to the notice of the trade/exporters by issuing trade/Public Notices. Standing orders/instructions may be issued for guidance of the assessing officers. Difficulties faced, if any, in implementation of the Circular may please be brought to the notice of the Board at an early date.Receipt of this circular may kindly be acknowledged.25. That circular further revised the norms and which have been prescribed by the earlier circular dated 21st October, 2004 which itself came to be amended by circular No.17/2009 and 32/2009. It was further amended by circular No.6/2009 dated 18th January, 2011. The last amendment and which has been put in issue before us contained in para 3.2(c) is now notified by the Central Board of Excise and Customs vide this circular of 4th March, 2013. It has been stated that prior to the issuance of the amended circular of 2011 one of the explicit criteria for denying benefit to the license order is that license holder should not have been penalized. However, the issue of penalty imposed for technical offences had arisen. Therefore an affidavit was insisted from the license holder with regard to the offences recorded as other than technical offences and for which the said license holder had been booked during the three previous financial years. If that was revealed then in cases of such violations benefit of exemption from bank guarantee should not be extended. Attention of the Board was invited by Exporters Trade Associations and Field Forming to the fact that by these amendments the benefit of availing of bank guarantee will be denied even before the show cause notice imposing penalty has been adjudicated. That is how the Board reviewed the matter and it restored the position prior to issuance of the circular No.6/2011 dated 18th January, 2011. However while restoring it the Board amended para 3.2(c) of earlier circular of 2004 and in para-4 brought in cases of Mis-declaration / mis-statement / collusion / willful suppression / fraudulent intent aimed at availing Cenvat Credit, rebate, refund, drawback, benefits under export promotion/ reward schemes. Thus, the cases of the nature for which the petitioners have been proceeded against are expressly brought in. The petitioners may eventually succeed and / or the order in Original may be set aside but today the position factually is that such an order passed against them in the year 2012 is in force and it is passed and communicated within the period specified in the circulars and the Foreign Trade Policy. It is within the preceding three years. In such circumstances, when larger public interest is sought to be sub-served by denying exemption to such Advance License holders from the condition of furnishing of bank guarantee that we are of the opinion that the mandate enshrined in Articles 14 & 19(1)(g) of the Constitution of India has not been violated. The benefits are under the export promotions / reward schemes and which finds recognition in the Foreign Trade Policy as well. When the Foreign Trade Policy and consistent therewith the Board circulars aim at not giving any privileges, special status and exemptions to the category of persons who are proceeded against for violations or breaches of the aforementioned enactments then the insistence by the Commissioner on the petitioners furnishing a Bank guarantee of 25% vide communication dated 9th December, 2014, cannot be faulted.26. We do not think and as a result of the above discussion that the Foreign Trade Policy has been amended or overridden by any stipulations in the Customs Department circular or the communication impugned in the present Writ Petition. Far from taking such a stand or step the Customs authorities have acted consistent with both the Foreign Trade Policy and the Foreign Trade Act, 1992. The mandate of both Acts, namely, Foreign Trade Act and the Customs Act, 1962 do not favour grant of any exemptions or special privileges to those who have been penalized or proceeded against or booked for cases which are referred to in para-4 of the circular / notification dated 4th March, 2013. In such circumstances, we do not find any merit in the contentions of Mr. Shroff. | 0[ds]Further the Customs Act, 1962, the powers conferred thereunder are fully recognized even by the Foreign Trade Policy and, therefore, none of the paragraphs of the Foreign Trade Policy are affected by the modification made in the circular. In any event the Foreign Trade Policy itself clarifies that the privileges and the concessions are admissible in the event no violation or breach of the statutory enactments including the Customs Act, 1962 is committed. In the face of admitted violation by the petitioners and the order confirming the demand and the subsequent conduct of the petitioners would denote that they are fully aware that the privileges are conditional. They cannot be availed of in the event of any order or demand based on violation or breach of the Customs Act and Central Excise Act. In such circumstances, there is no merit in the Writ Petition and it deserves to be dismissed.That circular further revised the norms and which have been prescribed by the earlier circular dated 21st October, 2004 which itself came to be amended by circular No.17/2009 and 32/2009. It was further amended by circular No.6/2009 dated 18th January, 2011. The last amendment and which has been put in issue before us contained in para 3.2(c) is now notified by the Central Board of Excise and Customs vide this circular of 4th March, 2013. It has been stated that prior to the issuance of the amended circular of 2011 one of the explicit criteria for denying benefit to the license order is that license holder should not have been penalized. However, the issue of penalty imposed for technical offences had arisen. Therefore an affidavit was insisted from the license holder with regard to the offences recorded as other than technical offences and for which the said license holder had been booked during the three previous financial years. If that was revealed then in cases of such violations benefit of exemption from bank guarantee should not be extended. Attention of the Board was invited by Exporters Trade Associations and Field Forming to the fact that by these amendments the benefit of availing of bank guarantee will be denied even before the show cause notice imposing penalty has been adjudicated. That is how the Board reviewed the matter and it restored the position prior to issuance of the circular No.6/2011 dated 18th January, 2011. However while restoring it the Board amended para 3.2(c) of earlier circular of 2004 and inbrought in cases ofnt / collusion / willful suppression / fraudulent intent aimed at availing Cenvat Credit, rebate, refund, drawback, benefits under export promotion/ reward schemes. Thus, the cases of the nature for which the petitioners have been proceeded against are expressly brought in. The petitioners may eventually succeed and / or the order in Original may be set aside but today the position factually is that such an order passed against them in the year 2012 is in force and it is passed and communicated within the period specified in the circulars and the Foreign Trade Policy. It is within the preceding three years. In such circumstances, when larger public interest is sought to beby denying exemption to such Advance License holders from the condition of furnishing of bank guarantee that we are of the opinion that the mandate enshrined in Articles 1419(1)(g) of the Constitution of India has not been violated. The benefits are under the export promotions / reward schemes and which finds recognition in the Foreign Trade Policy as well. When the Foreign Trade Policy and consistent therewith the Board circulars aim at not giving any privileges, special status and exemptions to the category of persons who are proceeded against for violations or breaches of the aforementioned enactments then the insistence by the Commissioner on the petitioners furnishing a Bank guarantee of 25% vide communication dated 9th December, 2014, cannot be faulted.26. We do not think and as a result of the above discussion that the Foreign Trade Policy has been amended or overridden by any stipulations in the Customs Department circular or the communication impugned in the present Writ Petition. Far from taking such a stand or step the Customs authorities have acted consistent with both the Foreign Trade Policy and the Foreign Trade Act, 1992. The mandate of both Acts, namely, Foreign Trade Act and the Customs Act, 1962 do not favour grant of any exemptions or special privileges to those who have been penalized or proceeded against or booked for cases which are referred to inof the circular / notification dated 4th March, 2013. In such circumstances, we do not find any merit in the contentions of Mr. Shroff. | 0 | 6,029 | 842 | ### 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:
to the notice of the Board by exporters, trade associations and the field formations that with this amendment the benefit of availing of exemption from bank guarantee will be denied even before the show cause notice proposing imposition of penalty has been adjudicated.4. The Board has reviewed the matter and considers that the position of not having been penalized should be restored. Accordingly, the para 3.2(c) of Circular 58/2004-Cus shall be read as follows:(c) The License holder should not have been penalized during the previous three financial years in cases booked against him related to Customs, Central Excise or Service Tax under the provisions of the Customs Act, 1962, the Central Excise Act, 1944, the Finance Act, 1994 (for Service Tax), as detailed below:(a) Cases of duty evasion involving misdeclaration / misstatement/ collusion / willful suppression / fraudulent intent whether or not extended period for issue of show cause notice has been invoked.(b) Cases of misdeclaration and/or clandestine/unauthorized removal of excisable / import / export goods warranting confiscation of said goods.(c) Cases of misdeclaration /misstatement / collusion / willful suppression / fraudulent intent aimed at availing CENVAT credit, rebate, refund, drawback, benefits under export promotion/reward schemes.(d) Cases wherein Customs/Excise duties and Service Tax has been collected but not deposited with the exchequer.(e) Cases of non-registration with the Department with intent to evade payment of duty / tax. or in cases booked against him under the Foreign Exchange Management Act (FEMA), 1999 or the Foreign Trade (Development and Regulation) Act, 1992. In order to ascertain/verify whether the License/Authorization holder meets this criterion he may be asked to furnish an affidavit. The Commissioners shall ensure that some of the affidavits furnished are cross checked randomly with the field formations for their veracity..5. It may be noted that the other conditions in Para 3.2 of the Circular No.58/2004-Cus dated 21-10-2004 remain unchanged. These instructions may be brought to the notice of the trade/exporters by issuing trade/Public Notices. Standing orders/instructions may be issued for guidance of the assessing officers. Difficulties faced, if any, in implementation of the Circular may please be brought to the notice of the Board at an early date.Receipt of this circular may kindly be acknowledged.25. That circular further revised the norms and which have been prescribed by the earlier circular dated 21st October, 2004 which itself came to be amended by circular No.17/2009 and 32/2009. It was further amended by circular No.6/2009 dated 18th January, 2011. The last amendment and which has been put in issue before us contained in para 3.2(c) is now notified by the Central Board of Excise and Customs vide this circular of 4th March, 2013. It has been stated that prior to the issuance of the amended circular of 2011 one of the explicit criteria for denying benefit to the license order is that license holder should not have been penalized. However, the issue of penalty imposed for technical offences had arisen. Therefore an affidavit was insisted from the license holder with regard to the offences recorded as other than technical offences and for which the said license holder had been booked during the three previous financial years. If that was revealed then in cases of such violations benefit of exemption from bank guarantee should not be extended. Attention of the Board was invited by Exporters Trade Associations and Field Forming to the fact that by these amendments the benefit of availing of bank guarantee will be denied even before the show cause notice imposing penalty has been adjudicated. That is how the Board reviewed the matter and it restored the position prior to issuance of the circular No.6/2011 dated 18th January, 2011. However while restoring it the Board amended para 3.2(c) of earlier circular of 2004 and in para-4 brought in cases of Mis-declaration / mis-statement / collusion / willful suppression / fraudulent intent aimed at availing Cenvat Credit, rebate, refund, drawback, benefits under export promotion/ reward schemes. Thus, the cases of the nature for which the petitioners have been proceeded against are expressly brought in. The petitioners may eventually succeed and / or the order in Original may be set aside but today the position factually is that such an order passed against them in the year 2012 is in force and it is passed and communicated within the period specified in the circulars and the Foreign Trade Policy. It is within the preceding three years. In such circumstances, when larger public interest is sought to be sub-served by denying exemption to such Advance License holders from the condition of furnishing of bank guarantee that we are of the opinion that the mandate enshrined in Articles 14 & 19(1)(g) of the Constitution of India has not been violated. The benefits are under the export promotions / reward schemes and which finds recognition in the Foreign Trade Policy as well. When the Foreign Trade Policy and consistent therewith the Board circulars aim at not giving any privileges, special status and exemptions to the category of persons who are proceeded against for violations or breaches of the aforementioned enactments then the insistence by the Commissioner on the petitioners furnishing a Bank guarantee of 25% vide communication dated 9th December, 2014, cannot be faulted.26. We do not think and as a result of the above discussion that the Foreign Trade Policy has been amended or overridden by any stipulations in the Customs Department circular or the communication impugned in the present Writ Petition. Far from taking such a stand or step the Customs authorities have acted consistent with both the Foreign Trade Policy and the Foreign Trade Act, 1992. The mandate of both Acts, namely, Foreign Trade Act and the Customs Act, 1962 do not favour grant of any exemptions or special privileges to those who have been penalized or proceeded against or booked for cases which are referred to in para-4 of the circular / notification dated 4th March, 2013. In such circumstances, we do not find any merit in the contentions of Mr. Shroff.
### Response:
0
### Explanation:
Further the Customs Act, 1962, the powers conferred thereunder are fully recognized even by the Foreign Trade Policy and, therefore, none of the paragraphs of the Foreign Trade Policy are affected by the modification made in the circular. In any event the Foreign Trade Policy itself clarifies that the privileges and the concessions are admissible in the event no violation or breach of the statutory enactments including the Customs Act, 1962 is committed. In the face of admitted violation by the petitioners and the order confirming the demand and the subsequent conduct of the petitioners would denote that they are fully aware that the privileges are conditional. They cannot be availed of in the event of any order or demand based on violation or breach of the Customs Act and Central Excise Act. In such circumstances, there is no merit in the Writ Petition and it deserves to be dismissed.That circular further revised the norms and which have been prescribed by the earlier circular dated 21st October, 2004 which itself came to be amended by circular No.17/2009 and 32/2009. It was further amended by circular No.6/2009 dated 18th January, 2011. The last amendment and which has been put in issue before us contained in para 3.2(c) is now notified by the Central Board of Excise and Customs vide this circular of 4th March, 2013. It has been stated that prior to the issuance of the amended circular of 2011 one of the explicit criteria for denying benefit to the license order is that license holder should not have been penalized. However, the issue of penalty imposed for technical offences had arisen. Therefore an affidavit was insisted from the license holder with regard to the offences recorded as other than technical offences and for which the said license holder had been booked during the three previous financial years. If that was revealed then in cases of such violations benefit of exemption from bank guarantee should not be extended. Attention of the Board was invited by Exporters Trade Associations and Field Forming to the fact that by these amendments the benefit of availing of bank guarantee will be denied even before the show cause notice imposing penalty has been adjudicated. That is how the Board reviewed the matter and it restored the position prior to issuance of the circular No.6/2011 dated 18th January, 2011. However while restoring it the Board amended para 3.2(c) of earlier circular of 2004 and inbrought in cases ofnt / collusion / willful suppression / fraudulent intent aimed at availing Cenvat Credit, rebate, refund, drawback, benefits under export promotion/ reward schemes. Thus, the cases of the nature for which the petitioners have been proceeded against are expressly brought in. The petitioners may eventually succeed and / or the order in Original may be set aside but today the position factually is that such an order passed against them in the year 2012 is in force and it is passed and communicated within the period specified in the circulars and the Foreign Trade Policy. It is within the preceding three years. In such circumstances, when larger public interest is sought to beby denying exemption to such Advance License holders from the condition of furnishing of bank guarantee that we are of the opinion that the mandate enshrined in Articles 1419(1)(g) of the Constitution of India has not been violated. The benefits are under the export promotions / reward schemes and which finds recognition in the Foreign Trade Policy as well. When the Foreign Trade Policy and consistent therewith the Board circulars aim at not giving any privileges, special status and exemptions to the category of persons who are proceeded against for violations or breaches of the aforementioned enactments then the insistence by the Commissioner on the petitioners furnishing a Bank guarantee of 25% vide communication dated 9th December, 2014, cannot be faulted.26. We do not think and as a result of the above discussion that the Foreign Trade Policy has been amended or overridden by any stipulations in the Customs Department circular or the communication impugned in the present Writ Petition. Far from taking such a stand or step the Customs authorities have acted consistent with both the Foreign Trade Policy and the Foreign Trade Act, 1992. The mandate of both Acts, namely, Foreign Trade Act and the Customs Act, 1962 do not favour grant of any exemptions or special privileges to those who have been penalized or proceeded against or booked for cases which are referred to inof the circular / notification dated 4th March, 2013. In such circumstances, we do not find any merit in the contentions of Mr. Shroff.
|
State of U.P. & Another Vs. Uptron Emp. Union CMD.I & Others | that though the industrial undertakings or the companies in which they are working did not have the financial capacity to grant revision in pay scale, yet the Government should give financial support to meet the additional expenditure incurred in that regard. 8. We have carefully gone through the pleadings, the annexures filed by both sides and the orders passed by the BIFR and the judgments cited by the counsel appearing on either side. Learned counsel for the contesting respondent drew our attention to a recent judgment of this Court in A.K. Bindal vs. Union of India in support of her contention. We have perused the said judgment. In our opinion, since the employees of government companies are not government servants, they have absolutely no legal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay scales should met by the Government. Being employees of the companies, it is the responsibility of the companies to pay them salary and if the company is sustaining losses continuously over a period and does not have financial capacity to revise or enhance the pay scale, the petitioners, in our view, cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account of revision of pay scales. We are unable to countenance the submission made by Mr. Sanghi that economic of the industrial unit or the financial capacity of the employer cannot be taken into consideration in the matter of revision of pay scales of the employees: 15. We may observe that in both these cases the earlier decision of this Court in Heavy Engineering Mazdoor Union vs. State of Bihar and Others (1969) 1 SCC, 765 was noticed and applied.16. Counsel for the respondents have placed reliance on Workmen of Rohtas Industries vs. Rohtas Industries and others (1995) Supp. (4) SCC 5 . In that case this Court passed an order directing the State Government and the Central Government to contribute a sum of Rs. 30 crores each with a view to work the industry which has closed down, having regard to its potential. However, as noticed by the Court, the experiment did not yield any result and this Court noted that the unprecedented course adopted by this Court of assuming direct control over the functioning of the undertaking with a view to secure its revival and rehabilitation had failed, and it was therefore constrained to put an end to the proceedings and permit resumption of the winding up proceedings before the High Court. It would, thus, appear that the order passed in the matter of Rohtas Industries (supra) was passed in the peculiar facts of the case and no principle had been laid down that in such a case it is the duty or obligation of the State Government or the Central Government to provide funds for payment of dues of workers. Reliance was also placed on the decision of this Court in the case of Kapila Hingorani vs. State of Bihar (2003) 6 SCC 1. The order passed therein was passed in the peculiar facts and circumstances, where a large number of employees employed in a large number of government corporations and undertakings were not paid their dues for years together. Invoking the principles enshrined in Articles 21 and 23 of the Constitution, this Court directed the State of Bihar to deposit a sum of Rs. 50 crores before the High Court for disbursement of the salaries to the employees of the corporations. It also vested a discretion in the High Court to direct disbursement of some funds to the needy employees on adhoc basis so as to enable them to sustain themselves for the time being. There was also a clear direction that the rights of the workmen shall be considered in terms of Section 529A of the Companies Act. There are observations in the judgment of this Court to the effect that the Government companies / public sector undertakings being "State" would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the company may be confined to the shares held by it, but having regard to the deep and pervasive control it exercises over the government companies in the matter of enforcement of human rights and/or rights of the citizen to life and liberty, the State has also an additional duty to see that the rights of the employees of such corporations are not infringed. Having said so, the Court in para 74 of the judgment said,"74. We, however, hasten to add that we do not intend to lay down a law, as at present advised, that the State is directly or vicariously liable to pay salaries / remunerations of the employees of the public sector undertakings or the government companies in all situation. We, as explained hereinbefore, only say that the State cannot escape its liability when a human rights problem of such magnitude involving the starvation deaths and/ or suicide by the employees has taken place by reason of non-payment of salary to the employees of public sector undertakings for such a long time."17. It would, thus, appear that this Court did not lay down any principle of law of universal application and passed appropriate orders only in the compelling circumstances noticed by it. We are, therefore, satisfied that in respect of a sick industrial company, even if it be a subsidiary of a Government company, there is no legal obligation cast upon the State Government to pay the wages due to the workmen. The rights of workmen are governed by the relevant provisions of the Companies Act where their claim has been accorded priority. | 1[ds]It would, thus, appear that the order passed in the matter of Rohtas Industries (supra) was passed in the peculiar facts of the case and no principle had been laid down that in such a case it is the duty or obligation of the State Government or the Central Government to provide funds for payment of dues of workers. Reliance was also placed on the decision of this Court in the case of Kapila Hingorani vs. State of Bihar (2003) 6 SCC 1. The order passed therein was passed in the peculiar facts and circumstances, where a large number of employees employed in a large number of government corporations and undertakings were not paid their dues for years together. Invoking the principles enshrined in Articles 21 and 23 of the Constitution, this Court directed the State of Bihar to deposit a sum of Rs. 50 crores before the High Court for disbursement of the salaries to the employees of the corporations. It also vested a discretion in the High Court to direct disbursement of some funds to the needy employees on adhoc basis so as to enable them to sustain themselves for the time being. There was also a clear direction that the rights of the workmen shall be considered in terms of Section 529A of the Companies Act. There are observations in the judgment of this Court to the effect that the Government companies / public sector undertakings being "State" would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the company may be confined to the shares held by it, but having regard to the deep and pervasive control it exercises over the government companies in the matter of enforcement of human rights and/or rights of the citizen to life and liberty, the State has also an additional duty to see that the rights of the employees of such corporations are not infringed. Having said so, the Court in para 74 of the judgment said,"74. We, however, hasten to add that we do not intend to lay down a law, as at present advised, that the State is directly or vicariously liable to pay salaries / remunerations of the employees of the public sector undertakings or the government companies in all situation. We, as explained hereinbefore, only say that the State cannot escape its liability when a human rights problem of such magnitude involving the starvation deaths and/ or suicide by the employees has taken place by reason ofof salary to the employees of public sector undertakings for such a long time."17. It would, thus, appear that this Court did not lay down any principle of law of universal application and passed appropriate orders only in the compelling circumstances noticed by it. We are, therefore, satisfied that in respect of a sick industrial company, even if it be a subsidiary of a Government company, there is no legal obligation cast upon the State Government to pay the wages due to the workmen. The rights of workmen are governed by the relevant provisions of the Companies Act where their claim has been accorded priority. | 1 | 4,615 | 616 | ### 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:
that though the industrial undertakings or the companies in which they are working did not have the financial capacity to grant revision in pay scale, yet the Government should give financial support to meet the additional expenditure incurred in that regard. 8. We have carefully gone through the pleadings, the annexures filed by both sides and the orders passed by the BIFR and the judgments cited by the counsel appearing on either side. Learned counsel for the contesting respondent drew our attention to a recent judgment of this Court in A.K. Bindal vs. Union of India in support of her contention. We have perused the said judgment. In our opinion, since the employees of government companies are not government servants, they have absolutely no legal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay scales should met by the Government. Being employees of the companies, it is the responsibility of the companies to pay them salary and if the company is sustaining losses continuously over a period and does not have financial capacity to revise or enhance the pay scale, the petitioners, in our view, cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account of revision of pay scales. We are unable to countenance the submission made by Mr. Sanghi that economic of the industrial unit or the financial capacity of the employer cannot be taken into consideration in the matter of revision of pay scales of the employees: 15. We may observe that in both these cases the earlier decision of this Court in Heavy Engineering Mazdoor Union vs. State of Bihar and Others (1969) 1 SCC, 765 was noticed and applied.16. Counsel for the respondents have placed reliance on Workmen of Rohtas Industries vs. Rohtas Industries and others (1995) Supp. (4) SCC 5 . In that case this Court passed an order directing the State Government and the Central Government to contribute a sum of Rs. 30 crores each with a view to work the industry which has closed down, having regard to its potential. However, as noticed by the Court, the experiment did not yield any result and this Court noted that the unprecedented course adopted by this Court of assuming direct control over the functioning of the undertaking with a view to secure its revival and rehabilitation had failed, and it was therefore constrained to put an end to the proceedings and permit resumption of the winding up proceedings before the High Court. It would, thus, appear that the order passed in the matter of Rohtas Industries (supra) was passed in the peculiar facts of the case and no principle had been laid down that in such a case it is the duty or obligation of the State Government or the Central Government to provide funds for payment of dues of workers. Reliance was also placed on the decision of this Court in the case of Kapila Hingorani vs. State of Bihar (2003) 6 SCC 1. The order passed therein was passed in the peculiar facts and circumstances, where a large number of employees employed in a large number of government corporations and undertakings were not paid their dues for years together. Invoking the principles enshrined in Articles 21 and 23 of the Constitution, this Court directed the State of Bihar to deposit a sum of Rs. 50 crores before the High Court for disbursement of the salaries to the employees of the corporations. It also vested a discretion in the High Court to direct disbursement of some funds to the needy employees on adhoc basis so as to enable them to sustain themselves for the time being. There was also a clear direction that the rights of the workmen shall be considered in terms of Section 529A of the Companies Act. There are observations in the judgment of this Court to the effect that the Government companies / public sector undertakings being "State" would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the company may be confined to the shares held by it, but having regard to the deep and pervasive control it exercises over the government companies in the matter of enforcement of human rights and/or rights of the citizen to life and liberty, the State has also an additional duty to see that the rights of the employees of such corporations are not infringed. Having said so, the Court in para 74 of the judgment said,"74. We, however, hasten to add that we do not intend to lay down a law, as at present advised, that the State is directly or vicariously liable to pay salaries / remunerations of the employees of the public sector undertakings or the government companies in all situation. We, as explained hereinbefore, only say that the State cannot escape its liability when a human rights problem of such magnitude involving the starvation deaths and/ or suicide by the employees has taken place by reason of non-payment of salary to the employees of public sector undertakings for such a long time."17. It would, thus, appear that this Court did not lay down any principle of law of universal application and passed appropriate orders only in the compelling circumstances noticed by it. We are, therefore, satisfied that in respect of a sick industrial company, even if it be a subsidiary of a Government company, there is no legal obligation cast upon the State Government to pay the wages due to the workmen. The rights of workmen are governed by the relevant provisions of the Companies Act where their claim has been accorded priority.
### Response:
1
### Explanation:
It would, thus, appear that the order passed in the matter of Rohtas Industries (supra) was passed in the peculiar facts of the case and no principle had been laid down that in such a case it is the duty or obligation of the State Government or the Central Government to provide funds for payment of dues of workers. Reliance was also placed on the decision of this Court in the case of Kapila Hingorani vs. State of Bihar (2003) 6 SCC 1. The order passed therein was passed in the peculiar facts and circumstances, where a large number of employees employed in a large number of government corporations and undertakings were not paid their dues for years together. Invoking the principles enshrined in Articles 21 and 23 of the Constitution, this Court directed the State of Bihar to deposit a sum of Rs. 50 crores before the High Court for disbursement of the salaries to the employees of the corporations. It also vested a discretion in the High Court to direct disbursement of some funds to the needy employees on adhoc basis so as to enable them to sustain themselves for the time being. There was also a clear direction that the rights of the workmen shall be considered in terms of Section 529A of the Companies Act. There are observations in the judgment of this Court to the effect that the Government companies / public sector undertakings being "State" would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the company may be confined to the shares held by it, but having regard to the deep and pervasive control it exercises over the government companies in the matter of enforcement of human rights and/or rights of the citizen to life and liberty, the State has also an additional duty to see that the rights of the employees of such corporations are not infringed. Having said so, the Court in para 74 of the judgment said,"74. We, however, hasten to add that we do not intend to lay down a law, as at present advised, that the State is directly or vicariously liable to pay salaries / remunerations of the employees of the public sector undertakings or the government companies in all situation. We, as explained hereinbefore, only say that the State cannot escape its liability when a human rights problem of such magnitude involving the starvation deaths and/ or suicide by the employees has taken place by reason ofof salary to the employees of public sector undertakings for such a long time."17. It would, thus, appear that this Court did not lay down any principle of law of universal application and passed appropriate orders only in the compelling circumstances noticed by it. We are, therefore, satisfied that in respect of a sick industrial company, even if it be a subsidiary of a Government company, there is no legal obligation cast upon the State Government to pay the wages due to the workmen. The rights of workmen are governed by the relevant provisions of the Companies Act where their claim has been accorded priority.
|
DINESH CHANDRA SHUKLA Vs. STATE OF U.P. & ORS | Kand. He also conceded that the advertisement did not indicate any specific qualification except that the aspirant should hold a post graduate degree in the relevant subject. 11. In the absence of any specific prescription, the University ought to have referred the question of what constitutes relevant subjects, before the process of selection began. Neither the University nor the Chancellor took a stand in the first instance that the appellant was not qualified in the relevant subject. Their initial objection was that the Selection Committee did not include the subject experts nominated by the Chancellor. After it was pointed out that there were no subject experts in Karm Kand, as no University was offering a specific course in Karm Kand, the High Court thought fit to remand the matter back to the Chancellor, to ascertain whether subject experts were actually available and whether the failure of the Vice Chancellor to seek nomination of such experts from the Chancellor vitiated the whole process. Finding that the answer to the said question was too difficult to be provided, the Chancellor went on a detour to find out what are the differences between the subject of Sanskrit and the subject of Karm Kand. This was clearly erroneous and the High Court unfortunately omitted to notice this mistake. 12. Admittedly, the appellant has been teaching Karm Kand for the past nearly 16 years in the same University. Though the learned counsel for the University stated that his continuance was on account of an interim order of status quo passed by this Court, we notice that the interim order of status quo was passed only on 14.09.2015. Unless the appellant was continuing as on that date, the order of status quo would have meant nothing for him. 13. The parameters to be applied to a case where an incumbent to a post does not fulfil the qualifications prescribed for a post, are different from the parameters to be applied to a case where no specific qualifications are prescribed for a particular post. The question as to what constitutes relevant subject should have been left to the experts, before the advertisement was issued, especially when the statutes did not prescribe any specific qualifications. This did not happen in this case. In fact the question whether subject experts were available at all in Karm Kand, itself became a matter of controversy. The entire controversy appears to have arisen as a result of the tug of war in the year 2006 between the then Chancellor and the then Vice Chancellor, making the appellant a victim in the line of fire. Unfortunately, the High Court omitted to take note of all this. 14. The expression equivalent qualifications has a different connotation than the expression relevant subject. In Punjab University vs. Narinder Kumar and Others (1999) 9 SCC 8, this Court was concerned with the interpretation of the expression relevant subject. But in that case the advertisement itself prescribed the essential qualifications under one head and desirable specialisation under another head. Therefore, this Court found that though the words relevant subject did not throw any light on the question as to what are the relevant subjects for the post of a Lecturer in any specified subject, the column dealing with desirable qualifications threw light upon what was relevant. Therefore, cases in which a clue is available in the advertisement itself may stand on a different footing than cases where there is no such clue. 15. In Ganapath Singh Gangaram Singh Rajput vs. Gulbarga University (2014) 3 SCC 767, this Court was concerned with a case where applications were invited for appointment to the post of Lecturer in MCA, from candidates holding a post graduate degree in the relevant subject. As a matter of fact, this Court found that candidates with Masters degree in Computer Applications were available, but a candidate with Masters degree in Mathematics was selected. This Court found fault with the decision of the Board of Appointment in selecting the candidate with a Masters degree in Mathematics with a flawed reasoning that Mathematics is one of the subjects taught in MCA. 16. In the case on hand no candidate was available with a post graduate degree in Karm Kand and the Selection Committee which comprised of a representative of the Department of Sanskrit found the appellant to possess a Masters degree in the relevant subject. The appointment itself was to the post in the Department of Sanskrit. 17. In fact, during the pendency of the writ petition before the High Court, the Academic Council of the University held a meeting on 22.08.2013. Agenda No.10 for the said meeting related to the qualifications for appointment to the post of Lecturer in Karm Kand. The recommendation made by the Head of the Department of Sanskrit was accepted by the Academic Council. Agenda Item No.10 of the said meeting of the Academic Council reads as follows: Agenda No.10: Recommendations of Department of Sanskrit. Prof Uma Rani Tripathi Head of the Department, Department of Sanskrit gave the information related to the recommendation of the Department of Sanskrit by apprising that the Academic Qualification of the Karm Kand and for the post of Professor of Sanskrit be kept one and the same as well as the Specialized experience of karm kand be stipulated as compulsory which was passed unanimously. 18. If only the High Court had looked into the minutes of the meetings of the Academic Council it could have easily appreciated that the appellant was entitled to succeed. 19. Under Section 25(1)(c) of the U.P. University Act, the Academic Council is empowered to advise the Executive Council with regard to the qualifications required to be possessed by persons imparting instructions on particular subjects. Therefore, the minutes of the meetings of the Academic Council dated 22.08.2013 has clinched the issue in favour of the appellant. Hence it is time for the University to put an end to this Yuddh Kand and allow the appellant to move from Karm Kand to Karm Phal Kand. | 1[ds]4. Before we proceed to consider the core issue arising for consideration, we are obliged to take note of the fact that admittedly the appellant was engaged as a Guest Lecturer on remuneration of Rs.250/- per lecture subject to a maximum of Rs.5000/- per month from the year 2006. Ever since then the appellant has been teaching students undergoing a one year diploma course in Karm Kand for the past nearly 16 years.5. The next thing we have to take note of before we take up for consideration the issue arising in the above appeal, is that the appellant, and perhaps the entire selection process undertaken in 2006 by the University, became victims of the crossfire between the Chancellor and the Vice-Chancellor.9. Obviously the consultations made by the Chancellor with certain persons and the information gathered by him before passing the order impugned before the High Court, were beyond the scope of order of remand passed by the High Court. The information collected by the Chancellor not only enlarged his original objections to the selection of the appellant but was also gathered behind the back of the appellant.11. In the absence of any specific prescription, the University ought to have referred the question of what constitutes relevant subjects, before the process of selection began. Neither the University nor the Chancellor took a stand in the first instance that the appellant was not qualified in the relevant subject. Their initial objection was that the Selection Committee did not include the subject experts nominated by the Chancellor. After it was pointed out that there were no subject experts in Karm Kand, as no University was offering a specific course in Karm Kand, the High Court thought fit to remand the matter back to the Chancellor, to ascertain whether subject experts were actually available and whether the failure of the Vice Chancellor to seek nomination of such experts from the Chancellor vitiated the whole process. Finding that the answer to the said question was too difficult to be provided, the Chancellor went on a detour to find out what are the differences between the subject of Sanskrit and the subject of Karm Kand. This was clearly erroneous and the High Court unfortunately omitted to notice this mistake.12. Admittedly, the appellant has been teaching Karm Kand for the past nearly 16 years in the same University. Though the learned counsel for the University stated that his continuance was on account of an interim order of status quo passed by this Court, we notice that the interim order of status quo was passed only on 14.09.2015. Unless the appellant was continuing as on that date, the order of status quo would have meant nothing for him.13. The parameters to be applied to a case where an incumbent to a post does not fulfil the qualifications prescribed for a post, are different from the parameters to be applied to a case where no specific qualifications are prescribed for a particular post. The question as to what constitutes relevant subject should have been left to the experts, before the advertisement was issued, especially when the statutes did not prescribe any specific qualifications. This did not happen in this case. In fact the question whether subject experts were available at all in Karm Kand, itself became a matter of controversy. The entire controversy appears to have arisen as a result of the tug of war in the year 2006 between the then Chancellor and the then Vice Chancellor, making the appellant a victim in the line of fire. Unfortunately, the High Court omitted to take note of all this.14. The expression equivalent qualifications has a different connotation than the expression relevant subject. In Punjab University vs. Narinder Kumar and Others (1999) 9 SCC 8, this Court was concerned with the interpretation of the expression relevant subject. But in that case the advertisement itself prescribed the essential qualifications under one head and desirable specialisation under another head. Therefore, this Court found that though the words relevant subject did not throw any light on the question as to what are the relevant subjects for the post of a Lecturer in any specified subject, the column dealing with desirable qualifications threw light upon what was relevant. Therefore, cases in which a clue is available in the advertisement itself may stand on a different footing than cases where there is no such clue.15. In Ganapath Singh Gangaram Singh Rajput vs. Gulbarga University (2014) 3 SCC 767, this Court was concerned with a case where applications were invited for appointment to the post of Lecturer in MCA, from candidates holding a post graduate degree in the relevant subject. As a matter of fact, this Court found that candidates with Masters degree in Computer Applications were available, but a candidate with Masters degree in Mathematics was selected. This Court found fault with the decision of the Board of Appointment in selecting the candidate with a Masters degree in Mathematics with a flawed reasoning that Mathematics is one of the subjects taught in MCA.16. In the case on hand no candidate was available with a post graduate degree in Karm Kand and the Selection Committee which comprised of a representative of the Department of Sanskrit found the appellant to possess a Masters degree in the relevant subject. The appointment itself was to the post in the Department of Sanskrit.17. In fact, during the pendency of the writ petition before the High Court, the Academic Council of the University held a meeting on 22.08.2013. Agenda No.10 for the said meeting related to the qualifications for appointment to the post of Lecturer in Karm Kand. The recommendation made by the Head of the Department of Sanskrit was accepted by the Academic Council.18. If only the High Court had looked into the minutes of the meetings of the Academic Council it could have easily appreciated that the appellant was entitled to succeed.19. Under Section 25(1)(c) of the U.P. University Act, the Academic Council is empowered to advise the Executive Council with regard to the qualifications required to be possessed by persons imparting instructions on particular subjects. Therefore, the minutes of the meetings of the Academic Council dated 22.08.2013 has clinched the issue in favour of the appellant. Hence it is time for the University to put an end to this Yuddh Kand and allow the appellant to move from Karm Kand to Karm Phal Kand. | 1 | 3,074 | 1,152 | ### 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:
Kand. He also conceded that the advertisement did not indicate any specific qualification except that the aspirant should hold a post graduate degree in the relevant subject. 11. In the absence of any specific prescription, the University ought to have referred the question of what constitutes relevant subjects, before the process of selection began. Neither the University nor the Chancellor took a stand in the first instance that the appellant was not qualified in the relevant subject. Their initial objection was that the Selection Committee did not include the subject experts nominated by the Chancellor. After it was pointed out that there were no subject experts in Karm Kand, as no University was offering a specific course in Karm Kand, the High Court thought fit to remand the matter back to the Chancellor, to ascertain whether subject experts were actually available and whether the failure of the Vice Chancellor to seek nomination of such experts from the Chancellor vitiated the whole process. Finding that the answer to the said question was too difficult to be provided, the Chancellor went on a detour to find out what are the differences between the subject of Sanskrit and the subject of Karm Kand. This was clearly erroneous and the High Court unfortunately omitted to notice this mistake. 12. Admittedly, the appellant has been teaching Karm Kand for the past nearly 16 years in the same University. Though the learned counsel for the University stated that his continuance was on account of an interim order of status quo passed by this Court, we notice that the interim order of status quo was passed only on 14.09.2015. Unless the appellant was continuing as on that date, the order of status quo would have meant nothing for him. 13. The parameters to be applied to a case where an incumbent to a post does not fulfil the qualifications prescribed for a post, are different from the parameters to be applied to a case where no specific qualifications are prescribed for a particular post. The question as to what constitutes relevant subject should have been left to the experts, before the advertisement was issued, especially when the statutes did not prescribe any specific qualifications. This did not happen in this case. In fact the question whether subject experts were available at all in Karm Kand, itself became a matter of controversy. The entire controversy appears to have arisen as a result of the tug of war in the year 2006 between the then Chancellor and the then Vice Chancellor, making the appellant a victim in the line of fire. Unfortunately, the High Court omitted to take note of all this. 14. The expression equivalent qualifications has a different connotation than the expression relevant subject. In Punjab University vs. Narinder Kumar and Others (1999) 9 SCC 8, this Court was concerned with the interpretation of the expression relevant subject. But in that case the advertisement itself prescribed the essential qualifications under one head and desirable specialisation under another head. Therefore, this Court found that though the words relevant subject did not throw any light on the question as to what are the relevant subjects for the post of a Lecturer in any specified subject, the column dealing with desirable qualifications threw light upon what was relevant. Therefore, cases in which a clue is available in the advertisement itself may stand on a different footing than cases where there is no such clue. 15. In Ganapath Singh Gangaram Singh Rajput vs. Gulbarga University (2014) 3 SCC 767, this Court was concerned with a case where applications were invited for appointment to the post of Lecturer in MCA, from candidates holding a post graduate degree in the relevant subject. As a matter of fact, this Court found that candidates with Masters degree in Computer Applications were available, but a candidate with Masters degree in Mathematics was selected. This Court found fault with the decision of the Board of Appointment in selecting the candidate with a Masters degree in Mathematics with a flawed reasoning that Mathematics is one of the subjects taught in MCA. 16. In the case on hand no candidate was available with a post graduate degree in Karm Kand and the Selection Committee which comprised of a representative of the Department of Sanskrit found the appellant to possess a Masters degree in the relevant subject. The appointment itself was to the post in the Department of Sanskrit. 17. In fact, during the pendency of the writ petition before the High Court, the Academic Council of the University held a meeting on 22.08.2013. Agenda No.10 for the said meeting related to the qualifications for appointment to the post of Lecturer in Karm Kand. The recommendation made by the Head of the Department of Sanskrit was accepted by the Academic Council. Agenda Item No.10 of the said meeting of the Academic Council reads as follows: Agenda No.10: Recommendations of Department of Sanskrit. Prof Uma Rani Tripathi Head of the Department, Department of Sanskrit gave the information related to the recommendation of the Department of Sanskrit by apprising that the Academic Qualification of the Karm Kand and for the post of Professor of Sanskrit be kept one and the same as well as the Specialized experience of karm kand be stipulated as compulsory which was passed unanimously. 18. If only the High Court had looked into the minutes of the meetings of the Academic Council it could have easily appreciated that the appellant was entitled to succeed. 19. Under Section 25(1)(c) of the U.P. University Act, the Academic Council is empowered to advise the Executive Council with regard to the qualifications required to be possessed by persons imparting instructions on particular subjects. Therefore, the minutes of the meetings of the Academic Council dated 22.08.2013 has clinched the issue in favour of the appellant. Hence it is time for the University to put an end to this Yuddh Kand and allow the appellant to move from Karm Kand to Karm Phal Kand.
### Response:
1
### Explanation:
past nearly 16 years.5. The next thing we have to take note of before we take up for consideration the issue arising in the above appeal, is that the appellant, and perhaps the entire selection process undertaken in 2006 by the University, became victims of the crossfire between the Chancellor and the Vice-Chancellor.9. Obviously the consultations made by the Chancellor with certain persons and the information gathered by him before passing the order impugned before the High Court, were beyond the scope of order of remand passed by the High Court. The information collected by the Chancellor not only enlarged his original objections to the selection of the appellant but was also gathered behind the back of the appellant.11. In the absence of any specific prescription, the University ought to have referred the question of what constitutes relevant subjects, before the process of selection began. Neither the University nor the Chancellor took a stand in the first instance that the appellant was not qualified in the relevant subject. Their initial objection was that the Selection Committee did not include the subject experts nominated by the Chancellor. After it was pointed out that there were no subject experts in Karm Kand, as no University was offering a specific course in Karm Kand, the High Court thought fit to remand the matter back to the Chancellor, to ascertain whether subject experts were actually available and whether the failure of the Vice Chancellor to seek nomination of such experts from the Chancellor vitiated the whole process. Finding that the answer to the said question was too difficult to be provided, the Chancellor went on a detour to find out what are the differences between the subject of Sanskrit and the subject of Karm Kand. This was clearly erroneous and the High Court unfortunately omitted to notice this mistake.12. Admittedly, the appellant has been teaching Karm Kand for the past nearly 16 years in the same University. Though the learned counsel for the University stated that his continuance was on account of an interim order of status quo passed by this Court, we notice that the interim order of status quo was passed only on 14.09.2015. Unless the appellant was continuing as on that date, the order of status quo would have meant nothing for him.13. The parameters to be applied to a case where an incumbent to a post does not fulfil the qualifications prescribed for a post, are different from the parameters to be applied to a case where no specific qualifications are prescribed for a particular post. The question as to what constitutes relevant subject should have been left to the experts, before the advertisement was issued, especially when the statutes did not prescribe any specific qualifications. This did not happen in this case. In fact the question whether subject experts were available at all in Karm Kand, itself became a matter of controversy. The entire controversy appears to have arisen as a result of the tug of war in the year 2006 between the then Chancellor and the then Vice Chancellor, making the appellant a victim in the line of fire. Unfortunately, the High Court omitted to take note of all this.14. The expression equivalent qualifications has a different connotation than the expression relevant subject. In Punjab University vs. Narinder Kumar and Others (1999) 9 SCC 8, this Court was concerned with the interpretation of the expression relevant subject. But in that case the advertisement itself prescribed the essential qualifications under one head and desirable specialisation under another head. Therefore, this Court found that though the words relevant subject did not throw any light on the question as to what are the relevant subjects for the post of a Lecturer in any specified subject, the column dealing with desirable qualifications threw light upon what was relevant. Therefore, cases in which a clue is available in the advertisement itself may stand on a different footing than cases where there is no such clue.15. In Ganapath Singh Gangaram Singh Rajput vs. Gulbarga University (2014) 3 SCC 767, this Court was concerned with a case where applications were invited for appointment to the post of Lecturer in MCA, from candidates holding a post graduate degree in the relevant subject. As a matter of fact, this Court found that candidates with Masters degree in Computer Applications were available, but a candidate with Masters degree in Mathematics was selected. This Court found fault with the decision of the Board of Appointment in selecting the candidate with a Masters degree in Mathematics with a flawed reasoning that Mathematics is one of the subjects taught in MCA.16. In the case on hand no candidate was available with a post graduate degree in Karm Kand and the Selection Committee which comprised of a representative of the Department of Sanskrit found the appellant to possess a Masters degree in the relevant subject. The appointment itself was to the post in the Department of Sanskrit.17. In fact, during the pendency of the writ petition before the High Court, the Academic Council of the University held a meeting on 22.08.2013. Agenda No.10 for the said meeting related to the qualifications for appointment to the post of Lecturer in Karm Kand. The recommendation made by the Head of the Department of Sanskrit was accepted by the Academic Council.18. If only the High Court had looked into the minutes of the meetings of the Academic Council it could have easily appreciated that the appellant was entitled to succeed.19. Under Section 25(1)(c) of the U.P. University Act, the Academic Council is empowered to advise the Executive Council with regard to the qualifications required to be possessed by persons imparting instructions on particular subjects. Therefore, the minutes of the meetings of the Academic Council dated 22.08.2013 has clinched the issue in favour of the appellant. Hence it is time for the University to put an end to this Yuddh Kand and allow the appellant to move from Karm Kand to Karm Phal Kand.
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Cricket Club Of India Ltd Vs. The Bombay Labour Union & Another | in the public in general in the game of cricket. It was obviously with this object that the Stadium was constructed. Its use by spectators interested in the matches or by members of other organisations interested in the game of cricket its purely for the purpose of encouraging and promoting the game of cricket in pursuance of that primary object of forming the Club. It is true that, in carrying on this object of the Club, the Club has been charging the spectators by selling tickets to them and also charging organisations to whom seats are specially allotted. So far as seats allotted to those organisations are concerned, we are inclined to accept the argument advanced by Mr. Vimadalal that this arrangement, instead of enuring to the benefit of the Club, in fact is to its disadvantage. We have already indicated that at least in one case of the Catholic Gymkhana Ltd., the charge that is made from the Gymkhana is at a very low rate of Rs. 5/- or Rs. 4/- per seat. On the face of it, if the Club was intending to make profits, it need not have given those seats to the Gymkhana and could have sold the seats to outsiders at much higher rates. The very fact that such agreements have been entered into,with organisations connected with the game of cricket shows that, in entering into these agreements, the primary object of the Club was to encourage persons who are interested in the game of cricket, even though at the disadvantage of charging them at much lower rates. So far as charges from spectators are concerned by selling tickets to them, they are obviously realised in order to ensure that the Club can carry on its activity of the promotion of game of cricket and also make up losses for purposes of providing other facilities and amenities to the Members of the Club. It its to be noticed that, in the whole period of 37 years, only 13 Test Matches have been held on the grounds of the Club. Even these Matches are not organised by the Club itself. They are, in fact, organised by the Board of Control for Cricket in India. The Board then arranges with the Bombay Cricket Association, which is the controlling body, for the venue of the Test Match. The Bombay Cricket Association has no ground or Stadium of its own. It is the Bombay Cricket Association that approaches the Club to promote the Test Matches to be played at the Brabourne Stadium of the Club, and the Club accedes to these requests. It will thus be seen that the Club comes in at the last stage of providing the venue and making arrangements for the successful holding of the Test Matches and it is for that purpose, on the few occasions when Test Matches are allotted to the grounds of the Club, that the Club is able to sell tickets in the Stadium and make some income. In these circumstances, we are not inclined to accept the submission made on behalf of the workmen that this activity by the Club is an undertaking in the nature of trade or business.It is, in fact, an activity in the course of promotion of the game of cricket and it is incidental that the Club is able to make an income on these few occasions which income is later utilised for the purpose of fulfilling its other objects as incorporated in the Memorandum of Association. The holding of the Test Matches is primarily organised by the Club for the purpose of promoting the game of cricket. This activity by Club cannot, by itself, in our opinion, lead to the inference that the Club is carrying on an industry.14. Lastly, reference was made to the circumstance that, unlike the Madras Gymkhana Club, the Club has been incorporated as a Limited Company under the Indian Companies Act. It was urged that the effect of this incorporation in law was that the Club became an entity separate and distinct from its Members, so that, in providing catering facilities, the Club, as a separate legal entity, was entering into transactions with the Members who were distinct from the Club itself. In our opinion, the Tribunal was right in holding that the circumstance of incorporation of the Club as a Limited Company is not of importance.It is true that, for purposes of contract law and for purposes of suing or being sued, the fact of incorporation makes the Club a separate legal entity; but, in deciding whether the Club is an industry or not, we cannot base our decision on such legal technicalities. What we have to see is the nature of the activity in fact and in substance. Though the Club is incorporated as a Company, it is not like an ordinary Company constituted for the purpose of carrying on business. There are no share-holders. No dividends are ever declared and no distribution of profits takes place. Admission to the Club is by payment of admission fee and not by purchase of shares. Even this admission is subject to balloting. The membership is not transferable like the right of shareholders. There is the provision for expulsion of a Member under certain circumstances which feature never exists in the case of a shareholder holding shares in a Limited Company. The membership is fluid. A person retains rights as long as he continues as a Member and gets nothing at all when he ceases to be a Member, even though be may have paid a large amount as admission fee. He even loses his rights on expulsion. In these circumstances, it is clear that the Club cannot be treated as a separate legal entity of the nature of a Limited Co. carrying on business. The Club, in fact, continues to be a Members Club without any shareholders and, consequently, all services provided in the Club for Members have to be treated as activities of a self serving institution. | 1[ds]7. The first point urged before us was that an examination of the objects of the Club would show that it is not purely a social or recreational Club confining its activities to Members like the Madras Gymkhana Club. Our attention was drawn to objects of the Club as given in paragraph 8, Clauses (a), (c), (d), (g), (1) and (na) of the Memorandum of Association of the Club. It was argued that the activity of encouraging and promoting the game of cricket in India and elsewhere mentioned in Clause (a), financing and assisting in financing visits of foreign teams and of visits of Indian teams to foreign countries in Clause (c), organising and promoting or assisting in the organisation or promotion of Provincial Cricket Associations and Inter-Provincial Tournaments in Clause (d), buying, repairing, making, supplying, selling and dealing in all kinds of apparatus and appliances and all kinds of provisions, liquid and solid, required by persons frequenting the Club buildings or the cricket grounds or other premises of the Club in Clause (g) and paying all or any part of the expenses of any cricket match, tour or tournament, or any other sporting events or match or competition in any other form of game, athletics, or sports and any kind of entertainment, exhibition or display in Clause (1) are not activities which should form part of a social and recreational Club. The argument ignores the fact that the Club is not only a social and recreational Club but is a Club of Members organised with one of the primary objects encouraging and promoting sports and games. The activity of promotion of sports and games by a set of people combining together to form a Club cannot be said to be an undertaking in the nature of a trade or business in which material goods or material services are provided with the aid of the employees. In Clause (na), the object mentioned is to construct on any premises of the Club buildings of any kind for residential, commercial, sporting or other uses and to repair, or alter or pull down, or demolish the same. In this clause, emphasis was laid on the word "commercial" and it was urged that if buildings are constructed for commercial purposes, this object will make the Club an industry. We do not consider it necessary to deal with this point at this stage, because the very next point relating to investment of large sums of money in immovable properties indicates how this object is being carried out in practice and, when dealing with this point, we shall indicate that this activity is not of such a nature as to make the Club anfrom all these, there are a certain number of buildings just outside the Stadium which are let out for use as shops and offices by business concerns. The income that the Club earns is primarily from these last-mentioned constructions.It was urged that the Club in thus constructing building for the purpose of earning income from rents payable by business concerns, to whom those premises are let out, is carrying on an activity which is in the nature of trade or business and, consequently, it should be held that the Club is an industry.So far as the residential buildings are concerned, where it appears that some employees must be contributing their labour, the principal consideration for holding that it does not amount to an activity of the nature of an industry is that this residential accommodation is provided exclusively for the Members of the Club. It has been stated that it is meant primarily for outstation Members of the Club who occupy this residential accommodation when they visit Bombay. In addition, it seems that there are 11 Members of the Club who are residing more or less permanently in 11 of these residential rooms. It is also true that members occupying the residential accommodation are required to take advantage of the catering facilities provided by the Club. They are charged consolidated amounts for, occupation of the rooms as well as for the food served to them. The Tribunal has held that this activity is in the nature of keeping a Hotel. The view taken by the Tribunal is clearly incorrect, because it ignores the circumstance that this facility is available only to Members of the Club and to no outsider. It is in the nature of a self-service by the Club organised for its Members.The rules which have been brought to our notice make it clear that, apart from Members, no one is allowed to stay in these residential rooms and that, in exceptional cases where some important visitors come to the Club or competitors taking part in tournaments visit this place, they are permitted to stay in these residential rooms, but, in such cases, they are all made Honorary Members of the Club.The facility is thus availed of by them in the capacity of Members of the Club, even thought that membership is honorary. The principle of having honorary members is quite common to most Clubs and existed even in the Madras Gymkhana Club. Once a person becomes an honorary member, provision of facilities of the Club for him partakes of the same nature as for other members and, consequently, such an activity by the Club continues to remain a part of it as a self-serving institution. It is quite wrong to equate it with the activity of a Hotel. It may also be mentioned that there is definite evidence given on behalf of the Club that the charges for the residential accommodation with catering are much lower in the Club than the charges made for similar facility in any decent Hotel in Bombay where comparable accommodation may be provided. This further clarifies the position that this is a facility provided by the Club at concessional rates exclusively for its Members.10. We may at this stage also deal with the argument advanced on behalf of the Union in respect of the nature of catering activities of the Club. So far as the catering in the Refreshment Room maintained by the Club and for persons occupying the residential accommodation is concerned, it is confined to Members of the Club only. No outsider is allowed to take advantage of this facility. In fact, the bye-laws of the Club clearly lay down that, even if a guest is introduced by a Member, the guest is not entitled to pay for any refreshment served to him. The transaction continues to be confined to the Member of the Club who introduces the guest.The Club is of course, not open to public in general and, even when non- members are admitted in the Club, they are only allowed as guest of members with the certain restrictions. Such guests cannot enter into any transaction with the Catering Department of the Club. Consequently, this catering activity is also in the nature of a self-service by the Club for itsis true that, in carrying on this object of the Club, the Club has been charging the spectators by selling tickets to them and also charging organisations to whom seats are specially allotted. So far as seats allotted to those organisations are concerned, we are inclined to accept the argument advanced by Mr. Vimadalal that this arrangement, instead of enuring to the benefit of the Club, in fact is to its disadvantage. We have already indicated that at least in one case of the Catholic Gymkhana Ltd., the charge that is made from the Gymkhana is at a very low rate of Rs. 5/- or Rs. 4/- per seat. On the face of it, if the Club was intending to make profits, it need not have given those seats to the Gymkhana and could have sold the seats to outsiders at much higher rates. The very fact that such agreements have been entered into,with organisations connected with the game of cricket shows that, in entering into these agreements, the primary object of the Club was to encourage persons who are interested in the game of cricket, even though at the disadvantage of charging them at much lower rates. So far as charges from spectators are concerned by selling tickets to them, they are obviously realised in order to ensure that the Club can carry on its activity of the promotion of game of cricket and also make up losses for purposes of providing other facilities and amenities to the Members of the Club. It its to be noticed that, in the whole period of 37 years, only 13 Test Matches have been held on the grounds of the Club. Even these Matches are not organised by the Club itself. They are, in fact, organised by the Board of Control for Cricket in India. The Board then arranges with the Bombay Cricket Association, which is the controlling body, for the venue of the Test Match. The Bombay Cricket Association has no ground or Stadium of its own. It is the Bombay Cricket Association that approaches the Club to promote the Test Matches to be played at the Brabourne Stadium of the Club, and the Club accedes to these requests. It will thus be seen that the Club comes in at the last stage of providing the venue and making arrangements for the successful holding of the Test Matches and it is for that purpose, on the few occasions when Test Matches are allotted to the grounds of the Club, that the Club is able to sell tickets in the Stadium and make some income. In these circumstances, we are not inclined to accept the submission made on behalf of the workmen that this activity by the Club is an undertaking in the nature of trade or business.It is, in fact, an activity in the course of promotion of the game of cricket and it is incidental that the Club is able to make an income on these few occasions which income is later utilised for the purpose of fulfilling its other objects as incorporated in the Memorandum of Association. The holding of the Test Matches is primarily organised by the Club for the purpose of promoting the game of cricket. This activity by Club cannot, by itself, in our opinion, lead to the inference that the Club is carrying on anis true that, for purposes of contract law and for purposes of suing or being sued, the fact of incorporation makes the Club a separate legal entity; but, in deciding whether the Club is an industry or not, we cannot base our decision on such legal technicalities. What we have to see is the nature of the activity in fact and in substance. Though the Club is incorporated as a Company, it is not like an ordinary Company constituted for the purpose of carrying on business. There are no share-holders. No dividends are ever declared and no distribution of profits takes place. Admission to the Club is by payment of admission fee and not by purchase of shares. Even this admission is subject to balloting. The membership is not transferable like the right of shareholders. There is the provision for expulsion of a Member under certain circumstances which feature never exists in the case of a shareholder holding shares in a Limited Company. The membership is fluid. A person retains rights as long as he continues as a Member and gets nothing at all when he ceases to be a Member, even though be may have paid a large amount as admission fee. He even loses his rights on expulsion. In these circumstances, it is clear that the Club cannot be treated as a separate legal entity of the nature of a Limited Co. carrying on business. The Club, in fact, continues to be a Members Club without any shareholders and, consequently, all services provided in the Club for Members have to be treated as activities of a self serving institution. | 1 | 6,792 | 2,180 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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in the public in general in the game of cricket. It was obviously with this object that the Stadium was constructed. Its use by spectators interested in the matches or by members of other organisations interested in the game of cricket its purely for the purpose of encouraging and promoting the game of cricket in pursuance of that primary object of forming the Club. It is true that, in carrying on this object of the Club, the Club has been charging the spectators by selling tickets to them and also charging organisations to whom seats are specially allotted. So far as seats allotted to those organisations are concerned, we are inclined to accept the argument advanced by Mr. Vimadalal that this arrangement, instead of enuring to the benefit of the Club, in fact is to its disadvantage. We have already indicated that at least in one case of the Catholic Gymkhana Ltd., the charge that is made from the Gymkhana is at a very low rate of Rs. 5/- or Rs. 4/- per seat. On the face of it, if the Club was intending to make profits, it need not have given those seats to the Gymkhana and could have sold the seats to outsiders at much higher rates. The very fact that such agreements have been entered into,with organisations connected with the game of cricket shows that, in entering into these agreements, the primary object of the Club was to encourage persons who are interested in the game of cricket, even though at the disadvantage of charging them at much lower rates. So far as charges from spectators are concerned by selling tickets to them, they are obviously realised in order to ensure that the Club can carry on its activity of the promotion of game of cricket and also make up losses for purposes of providing other facilities and amenities to the Members of the Club. It its to be noticed that, in the whole period of 37 years, only 13 Test Matches have been held on the grounds of the Club. Even these Matches are not organised by the Club itself. They are, in fact, organised by the Board of Control for Cricket in India. The Board then arranges with the Bombay Cricket Association, which is the controlling body, for the venue of the Test Match. The Bombay Cricket Association has no ground or Stadium of its own. It is the Bombay Cricket Association that approaches the Club to promote the Test Matches to be played at the Brabourne Stadium of the Club, and the Club accedes to these requests. It will thus be seen that the Club comes in at the last stage of providing the venue and making arrangements for the successful holding of the Test Matches and it is for that purpose, on the few occasions when Test Matches are allotted to the grounds of the Club, that the Club is able to sell tickets in the Stadium and make some income. In these circumstances, we are not inclined to accept the submission made on behalf of the workmen that this activity by the Club is an undertaking in the nature of trade or business.It is, in fact, an activity in the course of promotion of the game of cricket and it is incidental that the Club is able to make an income on these few occasions which income is later utilised for the purpose of fulfilling its other objects as incorporated in the Memorandum of Association. The holding of the Test Matches is primarily organised by the Club for the purpose of promoting the game of cricket. This activity by Club cannot, by itself, in our opinion, lead to the inference that the Club is carrying on an industry.14. Lastly, reference was made to the circumstance that, unlike the Madras Gymkhana Club, the Club has been incorporated as a Limited Company under the Indian Companies Act. It was urged that the effect of this incorporation in law was that the Club became an entity separate and distinct from its Members, so that, in providing catering facilities, the Club, as a separate legal entity, was entering into transactions with the Members who were distinct from the Club itself. In our opinion, the Tribunal was right in holding that the circumstance of incorporation of the Club as a Limited Company is not of importance.It is true that, for purposes of contract law and for purposes of suing or being sued, the fact of incorporation makes the Club a separate legal entity; but, in deciding whether the Club is an industry or not, we cannot base our decision on such legal technicalities. What we have to see is the nature of the activity in fact and in substance. Though the Club is incorporated as a Company, it is not like an ordinary Company constituted for the purpose of carrying on business. There are no share-holders. No dividends are ever declared and no distribution of profits takes place. Admission to the Club is by payment of admission fee and not by purchase of shares. Even this admission is subject to balloting. The membership is not transferable like the right of shareholders. There is the provision for expulsion of a Member under certain circumstances which feature never exists in the case of a shareholder holding shares in a Limited Company. The membership is fluid. A person retains rights as long as he continues as a Member and gets nothing at all when he ceases to be a Member, even though be may have paid a large amount as admission fee. He even loses his rights on expulsion. In these circumstances, it is clear that the Club cannot be treated as a separate legal entity of the nature of a Limited Co. carrying on business. The Club, in fact, continues to be a Members Club without any shareholders and, consequently, all services provided in the Club for Members have to be treated as activities of a self serving institution.
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argument advanced on behalf of the Union in respect of the nature of catering activities of the Club. So far as the catering in the Refreshment Room maintained by the Club and for persons occupying the residential accommodation is concerned, it is confined to Members of the Club only. No outsider is allowed to take advantage of this facility. In fact, the bye-laws of the Club clearly lay down that, even if a guest is introduced by a Member, the guest is not entitled to pay for any refreshment served to him. The transaction continues to be confined to the Member of the Club who introduces the guest.The Club is of course, not open to public in general and, even when non- members are admitted in the Club, they are only allowed as guest of members with the certain restrictions. Such guests cannot enter into any transaction with the Catering Department of the Club. Consequently, this catering activity is also in the nature of a self-service by the Club for itsis true that, in carrying on this object of the Club, the Club has been charging the spectators by selling tickets to them and also charging organisations to whom seats are specially allotted. So far as seats allotted to those organisations are concerned, we are inclined to accept the argument advanced by Mr. Vimadalal that this arrangement, instead of enuring to the benefit of the Club, in fact is to its disadvantage. We have already indicated that at least in one case of the Catholic Gymkhana Ltd., the charge that is made from the Gymkhana is at a very low rate of Rs. 5/- or Rs. 4/- per seat. On the face of it, if the Club was intending to make profits, it need not have given those seats to the Gymkhana and could have sold the seats to outsiders at much higher rates. The very fact that such agreements have been entered into,with organisations connected with the game of cricket shows that, in entering into these agreements, the primary object of the Club was to encourage persons who are interested in the game of cricket, even though at the disadvantage of charging them at much lower rates. So far as charges from spectators are concerned by selling tickets to them, they are obviously realised in order to ensure that the Club can carry on its activity of the promotion of game of cricket and also make up losses for purposes of providing other facilities and amenities to the Members of the Club. It its to be noticed that, in the whole period of 37 years, only 13 Test Matches have been held on the grounds of the Club. Even these Matches are not organised by the Club itself. They are, in fact, organised by the Board of Control for Cricket in India. The Board then arranges with the Bombay Cricket Association, which is the controlling body, for the venue of the Test Match. The Bombay Cricket Association has no ground or Stadium of its own. It is the Bombay Cricket Association that approaches the Club to promote the Test Matches to be played at the Brabourne Stadium of the Club, and the Club accedes to these requests. It will thus be seen that the Club comes in at the last stage of providing the venue and making arrangements for the successful holding of the Test Matches and it is for that purpose, on the few occasions when Test Matches are allotted to the grounds of the Club, that the Club is able to sell tickets in the Stadium and make some income. In these circumstances, we are not inclined to accept the submission made on behalf of the workmen that this activity by the Club is an undertaking in the nature of trade or business.It is, in fact, an activity in the course of promotion of the game of cricket and it is incidental that the Club is able to make an income on these few occasions which income is later utilised for the purpose of fulfilling its other objects as incorporated in the Memorandum of Association. The holding of the Test Matches is primarily organised by the Club for the purpose of promoting the game of cricket. This activity by Club cannot, by itself, in our opinion, lead to the inference that the Club is carrying on anis true that, for purposes of contract law and for purposes of suing or being sued, the fact of incorporation makes the Club a separate legal entity; but, in deciding whether the Club is an industry or not, we cannot base our decision on such legal technicalities. What we have to see is the nature of the activity in fact and in substance. Though the Club is incorporated as a Company, it is not like an ordinary Company constituted for the purpose of carrying on business. There are no share-holders. No dividends are ever declared and no distribution of profits takes place. Admission to the Club is by payment of admission fee and not by purchase of shares. Even this admission is subject to balloting. The membership is not transferable like the right of shareholders. There is the provision for expulsion of a Member under certain circumstances which feature never exists in the case of a shareholder holding shares in a Limited Company. The membership is fluid. A person retains rights as long as he continues as a Member and gets nothing at all when he ceases to be a Member, even though be may have paid a large amount as admission fee. He even loses his rights on expulsion. In these circumstances, it is clear that the Club cannot be treated as a separate legal entity of the nature of a Limited Co. carrying on business. The Club, in fact, continues to be a Members Club without any shareholders and, consequently, all services provided in the Club for Members have to be treated as activities of a self serving institution.
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MAHARAJA AGRASEN HOSPITAL Vs. MASTER RISHABH SHARMA | 8 months old, by Shroff Charity Eye Hospital. By this time, the ROP had reached Stage 5, when it becomes irreversible leading to total blindness of the Respondent No.1- baby. 11.4.16 We affirm the findings of the National Commission to hold that the Appellant No.1-Hospital, Appellant Nos. 2 and 3- the Paediatricians, and Appellant No.4 – Dr. S.N. Jha, the Senior Ophthalmologist, owed a legal duty of care to the Complainants/Respondents No.1 and 2. The failure to inform the Respondent No.2-mother of the necessity to have the ROP test conducted in the case of a pre-term baby, and the high risk involved which could lead to total blindness, was a breach of duty. Furthermore, the failure to carry out the ROP test, which is mandated by standard protocol, while the baby was under their direct care and supervision from birth till he was 3 ½ months old, amounted to gross negligence by the Doctors, and deficiency of service by the Hospital. The consequential damage caused to the baby by not having conducted the mandatory ROP test, which led to the total blindess of the baby, has given rise to an actionable claim of negligence. 11.4.17 It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. Savita Garg v. National Heart Institute (2004) 8 SCC 56 ; Balram Prasad (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634 ; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546 It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 11.4.18 Accordingly, we hold Appellant No.1-Hospital to be vicariously liable for the acts of omission and commission committed by Appellant Nos. 2 to 4. We hold all the Appellants as being jointly and severally liable to pay compensation to the Complainants. 11.5 Compensation 11.5.1 Having affirmed the findings recorded by the National Commission on the question of medical negligence and deficiency in service by the Appellants, the issue whether the compensation awarded by the National Commission was just and reasonable is required to be determined. The Complainants had claimed Rs. 1,30,25,000/- as compensation before the National Commission. The National Commission vide the Impugned Judgment awarded a total sum of Rs. 64,00,000/- to the Complainants along with interest. 11.5.2 This Court vide Order dated 06.11.2019 directed the Appellants to release a sum of Rs.5,00,000/- (Rupees Five Lakhs) in favour of the Respondent No.2-Complainant from the amount lying deposited by the Appellant No.1-Hospital in the Court. This Court further directed the Complainant/Respondent No.2 to file an affidavit regarding the education received by the Respondent No.1, and the level of proficiency he had attained. 11.5.3 Accordingly, the Respondent No.2- Complainant has stated on affidavit that the Respondent No.1, who is now 14 years old, was studying in a Government Senior Secondary School for Blind Boys, Kingsway Camp from 2013 to 2017, and barely received education for 4 years, up to 5 th standard. The Respondent No.1 was forced to leave school since the Respondent No.2-Complainant was unable to bear his educational, co-curricular and transportation expenses. The father of Respondent No.1, who was working as a security guard with the Municipal Corporation of Delhi, had expired in 2013. The Respondent No.2-Complainant stated that she is currently employed as a part-time receptionist since 2017, and earns Rs. 5,500/- per month as salary, and receives Rs. 2,500/- per month under the Delhi Vidhwa Pension Yojna. She further stated that Respondent No.1 received Rs. 2,500/- per month under the Delhi Governments Scheme for Subsistence Allowance to Persons with Special Needs. 11.5.4 The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299 and V. Krishnakumar v. State of T.N., (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546; Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327) 11.5.5 In our considered view, having regard to the finding that the medical negligence in the instant case occurred in 2005, and the litigation has been pending before this Court for over 3 years, coupled with the fact that the additional monthly expenses such as the care of an attendant/nurse, educational expenses of the patient in a special school, assistive devices etc. have not been taken into account, it would serve the ends of justice if the compensation awarded by the National Commission is enhanced, by a further lump-sum amount of Rs. 12,00,000 (Rupees Twelve Lakhs). 11.5.6 In conclusion, we pass the following directions to secure the interest and welfare of Respondent No.1. These directions are being passed to ensure that the compensation received is utilized for the welfare of Respondent No.1, to enable him to acquire suitable education and equip him to become self- reliant. | 1[ds]11.1 Inordinate Delay in Supply of Medical RecordsWe find that there was an inordinate delay of over 2 years in making the Medical Records of Respondent No.1- 25 Master Rishabh available to the Respondent No.2- Complainant. Regulation 1.3.2 of the IMC Regulations casts a statutory obligation upon every doctor/hospital to provide medical records within 72 hours of the request being made by the patient11.1.1 The Medical Council of India has framed the IMC Regulations with the previous approval of the Central Government, in exercise of the powers conferred by Section 20A read with Section 33(m) of the Indian Medical Council Act, 1956. The IMC Regulations came into force on their publication in the Gazette of India on 06.04.2002, and have statutory force11.1.3 The IMC Regulations framed by the Medical Council of India are binding on all medical professionals, who are under a statutory obligation to provide medical records to the patients or their attendants. All hospitals, whether Government or private are liable to maintain the medical records, and provide the same to patient or their attendants within 72 hours of the request11.1.4 The Delhi Medical Council vide Circular No. DMC/DHS/F.5/2/2009 dated 15.05.2009 casts a statutory obligation on all registered medical practitioners and hospitals/nursing homes to strictly adhere to Regulation 1.3.2 of the IMC Regulations. The failure to comply with the same would constitute professional misconduct and entail disciplinary action11.1.6 The Respondent No.2-Complainant submitted that she had made several requests for being provided the in- patient records for further evaluation/examination of the baby, which was not made available to her for over 2 years after his discharge in April 2005 from the Appellant No.1- Hospital. Respondent No.2-Complainant had to run from one hospital to another so as to ascertain why her son had abnormal visual responses. Despite repeated requests, the Medical Records were withheld by the Hospital. The Respondent No.2-Complainant had a legal notice issued on 24.02.2007 to the Appellant No.1- Hospital requesting for the entire in-patient medical record of her child, and made a complaint to the Delhi Medical Council. The Appellant No.1 -Hospital eventually provided the medical record on 14.06.200711.1.7 The Delhi Medical Council vide Order dated 14.12.2007 issued a warning to the Appellant No.1- Hospital for the delay in supplying the medical records of Respondent No.1 to the ComplainantWe find that withholding the medical records of Respondent No.1, who was a premature baby, for a period of over 2 years, would constitute grave professional misconduct under Regulation 7, apart from being a gross deficiency in service on the part of the Appellant No.1-Hospital and its management11.2 Failure to diagnose Retinopathy of Prematurity (ROP)Retinopathy of Prematurity (ROP) is one of the major emerging causes of childhood blindness. A premature baby is not born with ROP. At the time of birth, particularly in the case of premature babies, the retina is immature, which is natural at this stage. It is the post-natal developments in the retinal vessels which could lead to ROP11.2.1 As per medical literature, all infants with a birth weight of less than 1500 grams, or gestational age of less than 32 weeks, are required to be mandatorily screened for ROP, which usually takes about 4 to 5 weeks to be diagnosed. The routine screening should begin no later than 4 weeks after birth, and possibly even earlier for infants at higher risk (2 to 3 weeks)The standard of care is to be judged in the light of the protocols and standard procedures prevailing on the date of birth, and not on the date of trial. Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 ; Jacob Mathew v. State of Punjab (2005) 6 SCC 1 : 2005 SCC (Cri) 1369A well organised screening strategy and timely intervention can to a large extent prevent blindness due to ROP. Extensive clinical trials and publications have established that among other factors, gestation period and low birth weight are critical in the pathophysiology of ROP. If detected early and treated with peripheral retinal cryopexy or laser, ROP blindness can be prevented to some extent. Once thecase crosses Stage 3, in very few cases can the sight be saved even by extensive vitreoretinal surgery11.2.4 It is clear from the above medical literature that ROP is a visually progressive disease, which can be treated successfully if it is diagnosed on time. ROP advances through 5 stages. Medical literature suggests that Stage 3 can be treated by Laser or Cryotherapy treatment in order to eliminate the abnormal vessels. Even at Stage 4, in some cases, the central retina or macula remains intact thereby keeping intact the central vision. When the disease progresses to Stage 5, there is a total detachment, and the retina becomes funnel shaped, leading to blindness11.2.5 We have carefully perused the original Medical Records of the Appellant No.1-Hospital, which were provided in a sealed cover to the CourtThere is no contemporaneous record to corroborate that ROP screening was done by Appellant No.4 on 26.04.2005. The Nurses Daily Record or Treatment Sheet do not mention that the dilation of the pupils of the baby were carried out by administration of Cyclopentolate (0.5%) and Phenylephrine (2.5%) drops to conduct test of ROPWe had orally enquired from the learned counsel appearing on behalf of Appellant No.4- Dr. S.N. Jha about the approximate time at which the ROP check-up was done by him on 26.04.2005. The counsel was unable to specify the time at which the baby was examined by him11.2.6 The Respondent No.1-baby was discharged on 29.04.2005. The Complainants were provided with a Discharge Slip. The Discharge Slip does not contain any advice for a mandatory follow-up for ROP. Rather, the Discharge Slip only advised the Complainant to bring the Respondent No.1 for a review to the Paediatrics OPD on Wednesday or Saturday at 4 P.M11.2.7 The Counsel for the Hospital and the Doctors contended that post-discharge, the Respondent No.2-Complainant did not bring the baby to the speciality Paediatric OPD for a check- up as advised in the Discharge Summary11.2.8 We have seen the original medical records produced by the Appellant No.1-Hospital, and find that on both occasions, i.e. 04.05.2005 and 13.07.2005, the Complainants went correctly to the Paediatrics Unit of the General OPD. Hence, the contention of the Appellants is liable to rejected as being completely baselessIt is thus abundantly clear that the baby was rightly taken to the Paediatrics Unit of the General OPD Clinic at the chronological age of 4 to 5 weeks, when the onset of ROP could have been detected. However, there was no advice given by the treating doctors i.e. Appellants Nos. 2 and 3 – the Consultant Paediatricians, nor the Appellant No.4 – Ophthalmologist to conduct the ROP test11.2.10 We find that the ROP was neither advised, nor carried out at all by the Appellant No.1-Hospital, or Appellant No.4-Dr. S.N. Jha, the Senior Ophthalmologist, throughout the period of hospitalisation of the baby, or even after discharge. The baby was born in the 32 nd gestational week, and was 1.49 kgs at birth. As per standard protocol, the ROP screening ought to have been done between 3-4 weeks from birth. The baby remained admitted for 27 days in the Hospital from 02.04.2005 to 29.04.2005. There is no justification whatsoever why the mandatory screening of ROP was not done for the baby, while he was under the direct care and supervision of the AppellantsWe affirm the findings of the National Commission of gross negligence by the Appellant Nos. 2 to 4-Doctors, and deficiency of service by the Appellant No.1- Hospital11.3 Report of the Medical Board constituted by AIIMSWe have already recorded a finding that the entry made in the Treatment Sheet (at pages 100 and 102 of the original Medical Records) seems to be an interpolation done subsequently to cover up the failure of the Hospital and the Doctors to advise or conduct the mandatory ROP check-up and follow-up protocolThe second point contained in the AIIMS Report that the baby was not taken to the Paediatrics OPD is wholly fallacious. We have seen the medical records, and find that the baby was, in fact, taken to the Paediatrics Unit of the General OPD. Hence, the basis of the Report is misconceived, and cannot be relied upon11.3.2 It is well-settled that a court is not bound by the evidence of an expert, which is advisory in nature. The court must derive its own conclusions after carefully sifting through the medical records, and whether the standard protocol was followed in the treatment of the patient. The duty of an expert witness is to furnish the Court with the necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the Court to form an independent opinion by the application of this criteria to the facts proved by the evidence of the case. Ramesh Chandra Aggarwal vs. Regence Hospital Ltd. & Ors. (2009) 9 SCC 709 ; State of H.P. v. Jai Lal (1999) 7 SCC 280 : 1999 SCC (Cri) 1184 Whether such evidence could be accepted or how much weight should be attached to it is for the court to decide. Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 : (2010) 2 SCC (Cri) 299 : (2009) 3 SCC (Civ) 663; V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513 : (2010) 2 SCC (Civ) 46011.3.3 We accept the view taken by the National Commission in disregarding the opinion of the Medical Board constituted by AIIMS11.3.4 The Complainants have discharged the initial burden of proof ( Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 : (2009) 2 SCC (Civ) 688; Savita Garg v. National Heart Institute (2004) 8 SCC 56 ) by making out a case of clear negligence on the part of the Appellant No.1-Hospital and the Paediatric doctors under whose care the baby was admitted, as also Appellant No.4 – Dr. S.N. Jha, the senior Ophthalmologist attached to the Appellant No.1-HospitalThe Appellant No.1 - Hospital and the Appellants Nos. 2-4 - Doctors have failed to satisfy the Court that ROP tests were conducted at any point of time, or that the Complainants were even advised to get the ROP test done11.4 Medical Negligence and Duty of Care11.4.1 Medical negligence comprises of the following constituents: (1) A legal duty to exercise due care on the part of the medical professional; (2) failure to inform the patient ofthe risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (4) if the risk had been disclosed, the patient would have avoided the injury; (5) breach of the said duty would give rise to an actionable claim of negligence11.4.13 Applying the aforesaid principles to the facts of the present case, Appellant Nos. 2 and 3 viz. Dr. G.S. Kochhar and Dr. Naveen Jain, the Consultant Paediatricians, undoubtedly possessed the skill and qualifications of a Paediatrician, and the baby was placed under their direct care and treatment from birth till he was 3 ½ months old. They owed a duty of care to the baby and his parents. Appellant No.4- Dr. S.N. Jha, the Senior Consultant Ophthalmologist, who was engaged by the Appellant No.1- Hospital, and was the specialist in the Ophthalmology Department, ought to have followed the standard protocol for screening the Respondent No.1-baby for ROP, which is prescribed at the chronological age of 3 to 4 weeks after birth.11.4.14 Appellant Nos.1 to 3 are liable for medical negligence since at no stage were the parents of Complainant No.1 either advised or guided about the possibility of occurrence of ROP in a premature baby, nor was the baby examined by Appellant No.4, the Ophthalmologist as per standard protocol. The doctors ought to have been fully aware of the high chances of occurrence of ROP in a pre-term baby. The lack of care constitutes a gross deficiency in serviceAfter discharge on 29.04.2005, the baby was brought on 04.05.2005 at the chronological age of 5 weeks. Even on this date, no ROP test was either advised or conductedThe baby was brought for a further follow up check-up on 13.07.2005, by which time the baby was 3 ½ months old. Even on this visit, the Appellants did not advise or guide the Respondent No.2-Complainant to have the ROP test conducted11.4.15 After reviewing the medical literature setting out the contemporaneous standards and established protocols on ROP, the reasonable standard of care for a premature baby, mandates screening and checking up for ROP. It is a medically accepted position that ROP is a reversible disease, if diagnosed up to Stage 3. Had the ROP test been conducted by the Appellants, there would have been timely detection of the onset of ROP, which at that stage would have been reversibleOn account of the negligence of the Appellants 2 to 4, the disease remained undiagnosed. It came to be diagnosed on 03.12.2005, when the baby was 8 months old, by Shroff Charity Eye Hospital. By this time, the ROP had reached Stage 5, when it becomes irreversible leading to total blindness of the Respondent No.1- baby11.4.16 We affirm the findings of the National Commission to hold that the Appellant No.1-Hospital, Appellant Nos. 2 and 3- the Paediatricians, and Appellant No.4 – Dr. S.N. Jha, the Senior Ophthalmologist, owed a legal duty of care to the Complainants/Respondents No.1 and 2. The failure to inform the Respondent No.2-mother of the necessity to have the ROP test conducted in the case of a pre-term baby, and the high risk involved which could lead to total blindness, was a breach of duty. Furthermore, the failure to carry out the ROP test, which is mandated by standard protocol, while the baby was under their direct care and supervision from birth till he was 3 ½ months old, amounted to gross negligence by the Doctors, and deficiency of service by the Hospital. The consequential damage caused to the baby by not having conducted the mandatory ROP test, which led to the total blindess of the baby, has given rise to an actionable claim of negligence11.4.17 It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. Savita Garg v. National Heart Institute (2004) 8 SCC 56 ; Balram Prasad (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634 ; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctorsSavita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 11.4.18 Accordingly, we hold Appellant No.1-Hospital to be vicariously liable for the acts of omission and commission committed by Appellant Nos. 2 to 4. We hold all the Appellants as being jointly and severally liable to pay compensation to the ComplainantsThe Complainants had claimed Rs. 1,30,25,000/- as compensation before the National Commission. The National Commission vide the Impugned Judgment awarded a total sum of Rs. 64,00,000/- to the Complainants along with interest11.5.2 This Court vide Order dated 06.11.2019 directed the Appellants to release a sum of Rs.5,00,000/- (Rupees Five Lakhs) in favour of the Respondent No.2-Complainant from the amount lying deposited by the Appellant No.1-Hospital in the CourtThis Court further directed the Complainant/Respondent No.2 to file an affidavit regarding the education received by the Respondent No.1, and the level of proficiency he had attained11.5.3 Accordingly, the Respondent No.2- Complainant has stated on affidavit that the Respondent No.1, who is now 14 years old, was studying in a Government Senior Secondary School for Blind Boys, Kingsway Camp from 2013 to 2017, and barely received education for 4 years, up to 5 th standard. The Respondent No.1 was forced to leave school since the Respondent No.2-Complainant was unable to bear his educational, co-curricular and transportation expenses. The father of Respondent No.1, who was working as a security guard with the Municipal Corporation of Delhi, had expired in 2013. The Respondent No.2-Complainant stated that she is currently employed as a part-time receptionist since 2017, and earns Rs. 5,500/- per month as salary, and receives Rs. 2,500/- per month under the Delhi Vidhwa Pension Yojna. She further stated that Respondent No.1 received Rs. 2,500/- per month under the Delhi Governments Scheme for Subsistence Allowance to Persons with Special Needs11.5.4 The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299 and V. Krishnakumar v. State of T.N., (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546; Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327)11.5.5 In our considered view, having regard to the finding that the medical negligence in the instant case occurred in 2005, and the litigation has been pending before this Court for over 3 years, coupled with the fact that the additional monthly expenses such as the care of an attendant/nurse, educational expenses of the patient in a special school, assistive devices etc. have not been taken into account, it would serve the ends of justice if the compensation awardedby the National Commission is enhanced, by a further lump-sum amount of Rs. 12,00,000 (Rupees Twelve Lakhs)11.5.6 In conclusion, we pass the following directions to secure the interest and welfare of Respondent No.1. These directions are being passed to ensure that the compensation received is utilized for the welfare of Respondent No.1, to enable him to acquire suitable education and equip him to become self- reliantA medical professional should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes reasonable skill that other ordinarily competent members of his profession would bring11.4.17 It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. Savita Garg v. National Heart Institute (2004) 8 SCC 56 ; Balram Prasad (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634 ; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities.Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctorsSavita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 11.4.1 Medical negligence comprises of the following constituents: (1) A legal duty to exercise due care on the part of the medical professional; (2) failure to inform the patient ofthe risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (4) if the risk had been disclosed, the patient would have avoided the injury; (5) breach of the said duty would give rise to an actionable claim of negligenceThe cause of action for negligence arises only when damage occurs, since damage is a necessary ingredient of this tort. In a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioners breach of duty. In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking. Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330 : (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ) 11411.4.2 Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient. Refer to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1 SCR 206 : AIR 1969 SC 128 ; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : (2010) 2 SCC (Cri) 1127 : (2010) 1 SCC (Civ) 747 | 1 | 14,638 | 4,134 | ### 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:
8 months old, by Shroff Charity Eye Hospital. By this time, the ROP had reached Stage 5, when it becomes irreversible leading to total blindness of the Respondent No.1- baby. 11.4.16 We affirm the findings of the National Commission to hold that the Appellant No.1-Hospital, Appellant Nos. 2 and 3- the Paediatricians, and Appellant No.4 – Dr. S.N. Jha, the Senior Ophthalmologist, owed a legal duty of care to the Complainants/Respondents No.1 and 2. The failure to inform the Respondent No.2-mother of the necessity to have the ROP test conducted in the case of a pre-term baby, and the high risk involved which could lead to total blindness, was a breach of duty. Furthermore, the failure to carry out the ROP test, which is mandated by standard protocol, while the baby was under their direct care and supervision from birth till he was 3 ½ months old, amounted to gross negligence by the Doctors, and deficiency of service by the Hospital. The consequential damage caused to the baby by not having conducted the mandatory ROP test, which led to the total blindess of the baby, has given rise to an actionable claim of negligence. 11.4.17 It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. Savita Garg v. National Heart Institute (2004) 8 SCC 56 ; Balram Prasad (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634 ; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546 It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 11.4.18 Accordingly, we hold Appellant No.1-Hospital to be vicariously liable for the acts of omission and commission committed by Appellant Nos. 2 to 4. We hold all the Appellants as being jointly and severally liable to pay compensation to the Complainants. 11.5 Compensation 11.5.1 Having affirmed the findings recorded by the National Commission on the question of medical negligence and deficiency in service by the Appellants, the issue whether the compensation awarded by the National Commission was just and reasonable is required to be determined. The Complainants had claimed Rs. 1,30,25,000/- as compensation before the National Commission. The National Commission vide the Impugned Judgment awarded a total sum of Rs. 64,00,000/- to the Complainants along with interest. 11.5.2 This Court vide Order dated 06.11.2019 directed the Appellants to release a sum of Rs.5,00,000/- (Rupees Five Lakhs) in favour of the Respondent No.2-Complainant from the amount lying deposited by the Appellant No.1-Hospital in the Court. This Court further directed the Complainant/Respondent No.2 to file an affidavit regarding the education received by the Respondent No.1, and the level of proficiency he had attained. 11.5.3 Accordingly, the Respondent No.2- Complainant has stated on affidavit that the Respondent No.1, who is now 14 years old, was studying in a Government Senior Secondary School for Blind Boys, Kingsway Camp from 2013 to 2017, and barely received education for 4 years, up to 5 th standard. The Respondent No.1 was forced to leave school since the Respondent No.2-Complainant was unable to bear his educational, co-curricular and transportation expenses. The father of Respondent No.1, who was working as a security guard with the Municipal Corporation of Delhi, had expired in 2013. The Respondent No.2-Complainant stated that she is currently employed as a part-time receptionist since 2017, and earns Rs. 5,500/- per month as salary, and receives Rs. 2,500/- per month under the Delhi Vidhwa Pension Yojna. She further stated that Respondent No.1 received Rs. 2,500/- per month under the Delhi Governments Scheme for Subsistence Allowance to Persons with Special Needs. 11.5.4 The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299 and V. Krishnakumar v. State of T.N., (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546; Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327) 11.5.5 In our considered view, having regard to the finding that the medical negligence in the instant case occurred in 2005, and the litigation has been pending before this Court for over 3 years, coupled with the fact that the additional monthly expenses such as the care of an attendant/nurse, educational expenses of the patient in a special school, assistive devices etc. have not been taken into account, it would serve the ends of justice if the compensation awarded by the National Commission is enhanced, by a further lump-sum amount of Rs. 12,00,000 (Rupees Twelve Lakhs). 11.5.6 In conclusion, we pass the following directions to secure the interest and welfare of Respondent No.1. These directions are being passed to ensure that the compensation received is utilized for the welfare of Respondent No.1, to enable him to acquire suitable education and equip him to become self- reliant.
### Response:
1
### Explanation:
Respondent No.1 was forced to leave school since the Respondent No.2-Complainant was unable to bear his educational, co-curricular and transportation expenses. The father of Respondent No.1, who was working as a security guard with the Municipal Corporation of Delhi, had expired in 2013. The Respondent No.2-Complainant stated that she is currently employed as a part-time receptionist since 2017, and earns Rs. 5,500/- per month as salary, and receives Rs. 2,500/- per month under the Delhi Vidhwa Pension Yojna. She further stated that Respondent No.1 received Rs. 2,500/- per month under the Delhi Governments Scheme for Subsistence Allowance to Persons with Special Needs11.5.4 The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299 and V. Krishnakumar v. State of T.N., (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546; Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327)11.5.5 In our considered view, having regard to the finding that the medical negligence in the instant case occurred in 2005, and the litigation has been pending before this Court for over 3 years, coupled with the fact that the additional monthly expenses such as the care of an attendant/nurse, educational expenses of the patient in a special school, assistive devices etc. have not been taken into account, it would serve the ends of justice if the compensation awardedby the National Commission is enhanced, by a further lump-sum amount of Rs. 12,00,000 (Rupees Twelve Lakhs)11.5.6 In conclusion, we pass the following directions to secure the interest and welfare of Respondent No.1. These directions are being passed to ensure that the compensation received is utilized for the welfare of Respondent No.1, to enable him to acquire suitable education and equip him to become self- reliantA medical professional should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes reasonable skill that other ordinarily competent members of his profession would bring11.4.17 It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. Savita Garg v. National Heart Institute (2004) 8 SCC 56 ; Balram Prasad (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634 ; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities.Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctorsSavita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 11.4.1 Medical negligence comprises of the following constituents: (1) A legal duty to exercise due care on the part of the medical professional; (2) failure to inform the patient ofthe risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (4) if the risk had been disclosed, the patient would have avoided the injury; (5) breach of the said duty would give rise to an actionable claim of negligenceThe cause of action for negligence arises only when damage occurs, since damage is a necessary ingredient of this tort. In a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioners breach of duty. In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking. Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330 : (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ) 11411.4.2 Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient. Refer to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1 SCR 206 : AIR 1969 SC 128 ; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : (2010) 2 SCC (Cri) 1127 : (2010) 1 SCC (Civ) 747
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M/S BOMBAY DYEING & MFG CO. LTD Vs. COMMISSIONER OF CENTRAL EXCISE | said observations were meant to apply to cases where the final assessments were already made and not in respect of cases where the assessments were provisional, because duty liability is determined only at the time of final assessment. In other words, what is held in all the above cases is that, in spite of the retrospective amendment to Rule 9 and 49 is upheld, where the assessments are already finalised the duty under the amended Rule 9 and 49 can be recovered only by issuing notice under Section 11A of the 1944 Act. 40. This is evident from the fact that in the case of J.K. Cotton Mills (supra) in respect of the clearances effected during the pendency of the dispute, there was no direction to clear the goods on provisional assessment basis. In that case, neither the goods were cleared by executing B-13 Bond nor there were any endorsements made on the RT-12 returns to the effect that the assessments were provisional. Moreover, in the show cause notice issued by the revenue it was not even averred that the goods were cleared on provisional assessment basis. In fact, Assistant Collector in that case treated the assessments as provisional solely on the premise that the matter was subjudice and the basic argument of the revenue was that the stay granted by the Delhi High Court virtually amounted to stay of service of notice under Section 11-A of the Excise Act. In the facts of that case, where the assessments had attained finality and where there was no evidence whatsoever to establish that the clearances were effected on provisional assessment basis, the Apex Court held that in the absence of an express order of provisional assessment made under Rule 9B, the assessments cannot be treated as provisional.?28. As noticed earlier, this decision of the High Court of Judicature at Bombay was assailed by the assessee before this Court by way of Civil Appeal No. 1551/2008, which came to be summarily dismissed on 7.3.2008. We are conscious of the fact that this Court had summarily dismissed the said appeal. Nevertheless, the view expressed by the High Court of Judicature at Bombay, as reproduced above, commends to us. 29. The appellant had placed emphasis on the decision in The Bhopal Sugar Industries Ltd. (supra) and R.B.F. Rig Corporation, Mumbai (supra) to contend that the Department cannot be permitted to take contrary position than the direction given by the High Court of Delhi. For the reasons indicated hitherto, in our opinion, the basis of this submission is ill- founded. The authorities have not been nor could be prohibited by the High Court of Delhi from proceeding with the matter in accordance with law. In the present case, all that the authorities have done is to follow the procedure consequent to provisional assessment, by passing a final order and raising demand on the basis of that order. The appellant, as a matter of fact, in terms of the conditional interim order is obliged to discharge its obligation in terms of the bonds executed in Form B-13 and the monthly RT-12 returns filed from time to time for the relevant period. 30. It is not necessary for this Court to dilate on the other observations in the decision of the High Court of Judicature at Bombay in The Jam Shri Ranjitsinghji (supra). For the same reason, it is not necessary for us to deal with the exposition in Metal Forgings (supra). That decision has been pressed into service to assail the finding of the Commissioner of Central Excise (Appeals), who had observed that the order passed to finalize the assessment based on the RT-12 returns itself be treated as Show Cause Notice. It is not necessary to dilate further on this aspect. 31. Similarly, the exposition of this Court in Metal Forgings (supra) and Hindustan National Glass & Industries Ltd. (supra) to urge that specific order was required to be passed before an assessment is treated as a provisional assessment, will be of no avail considering the execution of bonds in Form B-13 by the appellant-assessee at its own volition, which is referable to provisional assessment procedure under Rule 9B of the Rules. Once the appellant submitted itself to that procedure without any demur pending disposal of the writ petitions, it is not open to later on resile therefrom. Permitting the assessee to do so, would inevitably result in giving undue advantage and favour to the assessee, who had invoked the remedy under Article 226 of the Constitution of India and sought interim protection on offering to execute bonds in Form B-13 as is noted in the Prayer clause (a) of the civil miscellaneous petition(s). For the same reason, the circular issued by the Government of India pressed into service will be of no avail to the appellant. Further, the decisions in Kalabharati Advertising (supra) and Jagmittar Sain Bhagat (supra) will also be of no avail to the appellant. For, the appellant had voluntarily executed the bonds and also filed monthly RT-12 returns, on which endorsement had been made indicative of being a provisional assessment. 32. Taking overall view of the matter, we are of the considered opinion that the appellant cannot be allowed to approbate and reprobate - for inviting the High Court of Delhi to pass interim order stipulating that the appellant would execute bonds in Form B-13 referable to Rule 9B of the Rules and continue to file monthly RT-12 returns from time to time, on which endorsements have been made indicating that it is a case of provisional assessment. The appellant cannot now be permitted to urge that it had not submitted to the process of provisional assessment as such for lack of a specific order of the concerned authority in that behalf. The order passed by the High Court of Delhi on 10/12.3.1993, will have to be understood in proper perspective and not to give undue advantage to or bestow favour on the appellant and thereby deprive the legitimate State exchequer. | 0[ds]The said order will have to be understood in the context of the stand taken by the appellant before the High Court. In the said writ petitions, the appellant had asserted that the fabric manufactured by the appellant was not amenable to excise duty as it was not removed from the premises within the meaning of Rules 9 and 49 of the Rules. Indisputably, the purport of the stated Rules has been finally answered by this Court in M/s. J.K. Cotton Spinning and Weaving Mills Ltd. & Anr. vs. Union of India & Ors. 1987 (Supp) SCC 350 after resolving the conflicting opinions of different High Courts including of the High Court of Delhi. The stand taken by the appellant in the writ petition has been negatived by this Court, in the said decision. Thus, the question relating to liability to pay excise duty was not and could not have been disputed by the appellant at least after this decision. Concededly, the appellant had filed writ petitions taking clue from the exposition of the High Court of Delhi in J.K. Cotton Spinning & Weaving Mills Co. Ltd. & Ors. (supra @ F.N.1). That view has been finally dealt with by this Court in M/s. J.K. Cotton Spinning and Weaving Mills Ltd. (supra @ F.N.12), fastening liability on the assessee to pay exciseis not an undertaking filed pursuant to the order of the Court. Concededly, the order disposing of the writ petitions does not absolve the appellant from the said bonds; nor the endorsements made thereon and on the monthly RT-12 returns, indicating that it was a provisional assessment have been ordered to be effaced. Suffice it to observe that the order dated 10/12.3.1993 passed by the High Court of Delhi, disposing of the writ petitions filed by the appellant in no way extricate the appellant from the process to which the appellant had voluntarily submitted itself at its own volition, namely, under Rule 9B of the Rules. Thus, it was not a case of duty not levied or not paid or short-levied or short-paid. The understanding of the parties was absolutely clear that the appellant was liable to pay excise duty, but for the exposition of the High Court of Delhi in J.K. Cotton Spinning & Weaving Mills Co. Ltd. & Ors. (supra @ F.N.1). Understood thus, the appellant is obliged to fulfill its statutory obligations including those arising from the undertaking/bonds in Form B-13 and cannot resile from the process to which it had submitted itself without any demur, namely under Rule 9B of the Rules.Indeed, the High Court of Delhi while disposing of the writ petitions vide order dated 10/12.3.1993, had adverted to the decision of this Court in Rohit Mills Ltd. (supra). On a fair reading of that decision, it is obvious that the Court dealt with two situations referred to therein. First, where Show Cause Notices under Section 11A of the Act have been served and the claim does not cover any period beyond six months from the date of receipt of the notices. Second, where there is dispute as to whether the notice under Section 11A had been issued or not. In the present case, none of the above is attracted; and for the same reason the exposition in paragraphs 30 to 33 of M/s. J.K. Cotton Spinning and Weaving Mills Ltd. (supra @ F.N.12), on which reliance has been placed by the appellant, would be of no avail to the appellant.Indisputably, the appellant voluntarily executed bonds in Form B-13 referable to Rule 9B of the Rules and also furnished bank guarantee for an amount equivalent to the differential amount of duty in respect of the fabric in question. The authorities have made endorsements on the bonds and on the monthly RT-12 returns filed by the assessee, indicating that it was a case of provisional assessment. Having submitted to that process, it is not open to the appellant to urge that an express order of provisional assessment has not been passed by the authorities.Be that as it may, the stand taken by the parties as recorded in the order dated 10/12.3.1993, is limited to accepting the fact that if notice is required to be given, the same will be given and in that case it will be open to the appellant to file response thereto and further, the authorities would take decision after giving opportunity to the assessee. Nothing more can be read into the order dated 10/12.3.1993 passed by the High Court of Delhi. It is certainly not an order to undo the obligation accepted by the assessee by voluntarily executing the bonds in the prescribed format, namely, Form B-13 referable to Rule 9B of the Rules - to treat the process as provisional assessment until the disposal of the writ petitions. It is also noticed that the authorities have later on passed the final order after the disposal of the writWe are conscious of the fact that this Court had summarily dismissed the said appeal. Nevertheless, the view expressed by the High Court of Judicature at Bombay, as reproduced above, commends tothe reasons indicated hitherto, in our opinion, the basis of this submission is ill- founded. The authorities have not been nor could be prohibited by the High Court of Delhi from proceeding with the matter in accordance with law. In the present case, all that the authorities have done is to follow the procedure consequent to provisional assessment, by passing a final order and raising demand on the basis of that order. The appellant, as a matter of fact, in terms of the conditional interim order is obliged to discharge its obligation in terms of the bonds executed in Form B-13 and the monthly RT-12 returns filed from time to time for the relevant period.It is not necessary for this Court to dilate on the other observations in the decision of the High Court of Judicature at Bombay in The Jam Shri Ranjitsinghji (supra). For the same reason, it is not necessary for us to deal with the exposition in Metal Forgings (supra). That decision has been pressed into service to assail the finding of the Commissioner of Central Excise (Appeals), who had observed that the order passed to finalize the assessment based on the RT-12 returns itself be treated as Show Cause Notice. It is not necessary to dilate further on this aspect.Similarly, the exposition of this Court in Metal Forgings (supra) and Hindustan National Glass & Industries Ltd. (supra) to urge that specific order was required to be passed before an assessment is treated as a provisional assessment, will be of no avail considering the execution of bonds in Form B-13 by the appellant-assessee at its own volition, which is referable to provisional assessment procedure under Rule 9B of the Rules. Once the appellant submitted itself to that procedure without any demur pending disposal of the writ petitions, it is not open to later on resile therefrom. Permitting the assessee to do so, would inevitably result in giving undue advantage and favour to the assessee, who had invoked the remedy under Article 226 of the Constitutionof India andsought interim protection on offering to execute bonds in Form B-13 as is noted in the Prayer clause (a) of the civil miscellaneous petition(s). For the same reason, the circular issued by the Government of India pressed into service will be of no avail to the appellant. Further, the decisions in Kalabharati Advertising (supra) and Jagmittar Sain Bhagat (supra) will also be of no avail to the appellant. For, the appellant had voluntarily executed the bonds and also filed monthly RT-12 returns, on which endorsement had been made indicative of being a provisional assessment.Taking overall view of the matter, we are of the considered opinion that the appellant cannot be allowed to approbate and reprobate - for inviting the High Court of Delhi to pass interim order stipulating that the appellant would execute bonds in Form B-13 referable to Rule 9B of the Rules and continue to file monthly RT-12 returns from time to time, on which endorsements have been made indicating that it is a case of provisional assessment. The appellant cannot now be permitted to urge that it had not submitted to the process of provisional assessment as such for lack of a specific order of the concerned authority in that behalf. The order passed by the High Court of Delhi on 10/12.3.1993, will have to be understood in proper perspective and not to give undue advantage to or bestow favour on the appellant and thereby deprive the legitimate State exchequer. | 0 | 11,037 | 1,568 | ### 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:
said observations were meant to apply to cases where the final assessments were already made and not in respect of cases where the assessments were provisional, because duty liability is determined only at the time of final assessment. In other words, what is held in all the above cases is that, in spite of the retrospective amendment to Rule 9 and 49 is upheld, where the assessments are already finalised the duty under the amended Rule 9 and 49 can be recovered only by issuing notice under Section 11A of the 1944 Act. 40. This is evident from the fact that in the case of J.K. Cotton Mills (supra) in respect of the clearances effected during the pendency of the dispute, there was no direction to clear the goods on provisional assessment basis. In that case, neither the goods were cleared by executing B-13 Bond nor there were any endorsements made on the RT-12 returns to the effect that the assessments were provisional. Moreover, in the show cause notice issued by the revenue it was not even averred that the goods were cleared on provisional assessment basis. In fact, Assistant Collector in that case treated the assessments as provisional solely on the premise that the matter was subjudice and the basic argument of the revenue was that the stay granted by the Delhi High Court virtually amounted to stay of service of notice under Section 11-A of the Excise Act. In the facts of that case, where the assessments had attained finality and where there was no evidence whatsoever to establish that the clearances were effected on provisional assessment basis, the Apex Court held that in the absence of an express order of provisional assessment made under Rule 9B, the assessments cannot be treated as provisional.?28. As noticed earlier, this decision of the High Court of Judicature at Bombay was assailed by the assessee before this Court by way of Civil Appeal No. 1551/2008, which came to be summarily dismissed on 7.3.2008. We are conscious of the fact that this Court had summarily dismissed the said appeal. Nevertheless, the view expressed by the High Court of Judicature at Bombay, as reproduced above, commends to us. 29. The appellant had placed emphasis on the decision in The Bhopal Sugar Industries Ltd. (supra) and R.B.F. Rig Corporation, Mumbai (supra) to contend that the Department cannot be permitted to take contrary position than the direction given by the High Court of Delhi. For the reasons indicated hitherto, in our opinion, the basis of this submission is ill- founded. The authorities have not been nor could be prohibited by the High Court of Delhi from proceeding with the matter in accordance with law. In the present case, all that the authorities have done is to follow the procedure consequent to provisional assessment, by passing a final order and raising demand on the basis of that order. The appellant, as a matter of fact, in terms of the conditional interim order is obliged to discharge its obligation in terms of the bonds executed in Form B-13 and the monthly RT-12 returns filed from time to time for the relevant period. 30. It is not necessary for this Court to dilate on the other observations in the decision of the High Court of Judicature at Bombay in The Jam Shri Ranjitsinghji (supra). For the same reason, it is not necessary for us to deal with the exposition in Metal Forgings (supra). That decision has been pressed into service to assail the finding of the Commissioner of Central Excise (Appeals), who had observed that the order passed to finalize the assessment based on the RT-12 returns itself be treated as Show Cause Notice. It is not necessary to dilate further on this aspect. 31. Similarly, the exposition of this Court in Metal Forgings (supra) and Hindustan National Glass & Industries Ltd. (supra) to urge that specific order was required to be passed before an assessment is treated as a provisional assessment, will be of no avail considering the execution of bonds in Form B-13 by the appellant-assessee at its own volition, which is referable to provisional assessment procedure under Rule 9B of the Rules. Once the appellant submitted itself to that procedure without any demur pending disposal of the writ petitions, it is not open to later on resile therefrom. Permitting the assessee to do so, would inevitably result in giving undue advantage and favour to the assessee, who had invoked the remedy under Article 226 of the Constitution of India and sought interim protection on offering to execute bonds in Form B-13 as is noted in the Prayer clause (a) of the civil miscellaneous petition(s). For the same reason, the circular issued by the Government of India pressed into service will be of no avail to the appellant. Further, the decisions in Kalabharati Advertising (supra) and Jagmittar Sain Bhagat (supra) will also be of no avail to the appellant. For, the appellant had voluntarily executed the bonds and also filed monthly RT-12 returns, on which endorsement had been made indicative of being a provisional assessment. 32. Taking overall view of the matter, we are of the considered opinion that the appellant cannot be allowed to approbate and reprobate - for inviting the High Court of Delhi to pass interim order stipulating that the appellant would execute bonds in Form B-13 referable to Rule 9B of the Rules and continue to file monthly RT-12 returns from time to time, on which endorsements have been made indicating that it is a case of provisional assessment. The appellant cannot now be permitted to urge that it had not submitted to the process of provisional assessment as such for lack of a specific order of the concerned authority in that behalf. The order passed by the High Court of Delhi on 10/12.3.1993, will have to be understood in proper perspective and not to give undue advantage to or bestow favour on the appellant and thereby deprive the legitimate State exchequer.
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0
### Explanation:
of Delhi while disposing of the writ petitions vide order dated 10/12.3.1993, had adverted to the decision of this Court in Rohit Mills Ltd. (supra). On a fair reading of that decision, it is obvious that the Court dealt with two situations referred to therein. First, where Show Cause Notices under Section 11A of the Act have been served and the claim does not cover any period beyond six months from the date of receipt of the notices. Second, where there is dispute as to whether the notice under Section 11A had been issued or not. In the present case, none of the above is attracted; and for the same reason the exposition in paragraphs 30 to 33 of M/s. J.K. Cotton Spinning and Weaving Mills Ltd. (supra @ F.N.12), on which reliance has been placed by the appellant, would be of no avail to the appellant.Indisputably, the appellant voluntarily executed bonds in Form B-13 referable to Rule 9B of the Rules and also furnished bank guarantee for an amount equivalent to the differential amount of duty in respect of the fabric in question. The authorities have made endorsements on the bonds and on the monthly RT-12 returns filed by the assessee, indicating that it was a case of provisional assessment. Having submitted to that process, it is not open to the appellant to urge that an express order of provisional assessment has not been passed by the authorities.Be that as it may, the stand taken by the parties as recorded in the order dated 10/12.3.1993, is limited to accepting the fact that if notice is required to be given, the same will be given and in that case it will be open to the appellant to file response thereto and further, the authorities would take decision after giving opportunity to the assessee. Nothing more can be read into the order dated 10/12.3.1993 passed by the High Court of Delhi. It is certainly not an order to undo the obligation accepted by the assessee by voluntarily executing the bonds in the prescribed format, namely, Form B-13 referable to Rule 9B of the Rules - to treat the process as provisional assessment until the disposal of the writ petitions. It is also noticed that the authorities have later on passed the final order after the disposal of the writWe are conscious of the fact that this Court had summarily dismissed the said appeal. Nevertheless, the view expressed by the High Court of Judicature at Bombay, as reproduced above, commends tothe reasons indicated hitherto, in our opinion, the basis of this submission is ill- founded. The authorities have not been nor could be prohibited by the High Court of Delhi from proceeding with the matter in accordance with law. In the present case, all that the authorities have done is to follow the procedure consequent to provisional assessment, by passing a final order and raising demand on the basis of that order. The appellant, as a matter of fact, in terms of the conditional interim order is obliged to discharge its obligation in terms of the bonds executed in Form B-13 and the monthly RT-12 returns filed from time to time for the relevant period.It is not necessary for this Court to dilate on the other observations in the decision of the High Court of Judicature at Bombay in The Jam Shri Ranjitsinghji (supra). For the same reason, it is not necessary for us to deal with the exposition in Metal Forgings (supra). That decision has been pressed into service to assail the finding of the Commissioner of Central Excise (Appeals), who had observed that the order passed to finalize the assessment based on the RT-12 returns itself be treated as Show Cause Notice. It is not necessary to dilate further on this aspect.Similarly, the exposition of this Court in Metal Forgings (supra) and Hindustan National Glass & Industries Ltd. (supra) to urge that specific order was required to be passed before an assessment is treated as a provisional assessment, will be of no avail considering the execution of bonds in Form B-13 by the appellant-assessee at its own volition, which is referable to provisional assessment procedure under Rule 9B of the Rules. Once the appellant submitted itself to that procedure without any demur pending disposal of the writ petitions, it is not open to later on resile therefrom. Permitting the assessee to do so, would inevitably result in giving undue advantage and favour to the assessee, who had invoked the remedy under Article 226 of the Constitutionof India andsought interim protection on offering to execute bonds in Form B-13 as is noted in the Prayer clause (a) of the civil miscellaneous petition(s). For the same reason, the circular issued by the Government of India pressed into service will be of no avail to the appellant. Further, the decisions in Kalabharati Advertising (supra) and Jagmittar Sain Bhagat (supra) will also be of no avail to the appellant. For, the appellant had voluntarily executed the bonds and also filed monthly RT-12 returns, on which endorsement had been made indicative of being a provisional assessment.Taking overall view of the matter, we are of the considered opinion that the appellant cannot be allowed to approbate and reprobate - for inviting the High Court of Delhi to pass interim order stipulating that the appellant would execute bonds in Form B-13 referable to Rule 9B of the Rules and continue to file monthly RT-12 returns from time to time, on which endorsements have been made indicating that it is a case of provisional assessment. The appellant cannot now be permitted to urge that it had not submitted to the process of provisional assessment as such for lack of a specific order of the concerned authority in that behalf. The order passed by the High Court of Delhi on 10/12.3.1993, will have to be understood in proper perspective and not to give undue advantage to or bestow favour on the appellant and thereby deprive the legitimate State exchequer.
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Mohd. Rajab Gujari Vs. The State of Jammu & Kashmir & Another | the agreement was that if milk became a controlled article during the period of the agreement, the contractor shall be paid at the controlled rate for the supply of the articles made by him. This is practically the same as paragraph 12 of the Tender Notice. In pursuance to the agreement, the appellant supplied milk to the hospital during the period of the agreement. The price of milk was controlled by virtue of a notification issued on May 3, 1961 and this control remained in force till the end of the contract period namely, March 31, 1962. The case of the appellant was that althought he agreed to supply milk at the rate of Rs. 15.90 per maund as the controlled price was Rs. 25/- per maund he was entitled to be paid at this rate after the date of the notification controlling the price. He, therefore, claimed price of milk at the rate of Rs. 25/-per maund from May 2, 1961, to the end of March, 1962, and filed the suit.2. The defendants contended that there was no control by Government of the price of milk in the strict sense of the term and the appellant, having agreed to supply milk at the rate of Rs. 15.90 per maund, could not take advantage of the control of the price of milk, and therefore, he was not entitled to be paid at the rate of Rs. 25 /- per maund for the period in question.3. A learned single Judge of the High Court, who tried the case, came to the conclusion that the appellant was entitled to the price mentioned in the notification and decreed the suit on that basis. The State filed an appeal against the decree before the Division Bench. The Division Bench reversed the dcecision and dismissed the suit.4. The only question for consideration is whether the appellant was entitled to get Rs. 25/- per maund as the price for the milk supplied by him from the date of the notification.5. The Division Bench was of the view that the notification did not control the price of milk but only fixed the maximum price at which milk could be bought and sold in the market and that did not deter any person from selling milk at a price lower than that fixed by the notification and so, the appellant could have purchased milk in the market at a lower price and supplied it to the Hospital in accordance with the terms of the agreement, namely, at Rs. 15.90 per maund.6. The notification in question runs as follows:"In exercise of the powers vested in me under Section 3 of Hoarding and Profiteering Prevention Ordinance 2000, as amended to date, I., S. A. S. Qaidri, Director, Food and Supplies, Kashmir Province, designated Controller General under Section 2 (c) of the said Act vide notification dated 3-7-59 issued under Home Secretariat No. S. 7 I-S/59 dated 8-7-1959 hereby fix maximum price of sale for the following essential commodities in the following localities as shown against each:-xx xxMilkRs.-/10/- per seer" There can be no doubt that when a Government regulates the price of a commodity, it begets a tendency in the market to raise the price of the commodity at least to the level of the price fixed by the Government. No person would normally agree, after the notification, to sell or supply milk at a price lower than the one fixed by the Government even though there is no bar to his selling the same at a lower price.7. In fact, the appellant has examined 8 witnesses to show that, after the notification, the price of milk went up and they supplied milk to the appellant at Rs. 23.50 per maund. The witnesses examined on behalf of the respondents have also stated that after the control of the price of milk went up in the market. Thus, the evidence adduced on behalf of the respondents also shows that the price of milk by the notification, the price of milk went up in the market after the notification. As already stated the positive evidence of PWs. 1 to 8 is to the effect that the appellant himself purchased milk from them at the rate of Rs. 23.50 per maund after the aforesaid notification.The relevant clause in the agreement runs as follows:"The contractor shall be paid at the rates against each of the article as below for the supplies to be made by him:Gr. No.S. No. Name of articlesApproved rate / Quantity requiredII3Milk 4200 maunds;Rs. 15.90 (Rupees fifteen and ninety naya paise)Cost : Rs. 66780.00Provided if any of the articles is controlled during the period of operation of this agreement the contractor shall be paid at controlled rates for the supplies of that article made by him."The mere fact that a commodity could be sold in the market below the price fixed by a notification fixing the maximum price by government would not indicate that there was no control. Control of any of the articles contemplated by the parties under the agreement was a control of the price of the articles. We do not think that the parties could have visualized any other control in the context of "the contractor being paid at the controlled rates".8. We think that fixation of the maximum price at which an article shall be sold is the controlled rate for the supply of that article within the meaning of the agreement. The fact that sellers are free to sell the article at a price lower than the maximum fixed by the government would not show that there was no control of the commodity. We do not understand how an article can be controlled under Section 3 of the Hoarding and Profiteering Prevention Ordinance, except by a notification fixing the maximum price for the sale of the article. We think that the appellants case is covered by the express term of the agreement and he was entitled to get the amount as decreed by the trial Court. | 1[ds]5. The Division Bench was of the view that the notification did not control the price of milk but only fixed the maximum price at which milk could be bought and sold in the market and that did not deter any person from selling milk at a price lower than that fixed by the notification and so, the appellant could have purchased milk in the market at a lower price and supplied it to the Hospital in accordance with the terms of the agreement, namely, at Rs. 15.90 per maund.6. The notification in question runs as follows:"In exercise of the powers vested in me under Section 3 of Hoarding and Profiteering Prevention Ordinance 2000, as amended to date, I., S. A. S. Qaidri, Director, Food and Supplies, Kashmir Province, designated Controller General under Section 2 (c) of the said Act vide notification datedissued under Home Secretariat No. S. 759 hereby fix maximum price of sale for the following essential commodities in the following localities as shown againster seer" There can be no doubt that when a Government regulates the price of a commodity, it begets a tendency in the market to raise the price of the commodity at least to the level of the price fixed by the Government. No person would normally agree, after the notification, to sell or supply milk at a price lower than the one fixed by the Government even though there is no bar to his selling the same at a lower price.7. In fact, the appellant has examined 8 witnesses to show that, after the notification, the price of milk went up and they supplied milk to the appellant at Rs. 23.50 per maund. The witnesses examined on behalf of the respondents have also stated that after the control of the price of milk went up in the market. Thus, the evidence adduced on behalf of the respondents also shows that the price of milk by the notification, the price of milk went up in the market after the notification. As already stated the positive evidence of PWs. 1 to 8 is to the effect that the appellant himself purchased milk from them at the rate of Rs. 23.50 per maund after the aforesaid notification.The relevant clause in the agreement runs as follows:"The contractor shall be paid at the rates against each of the article as below for the supplies to be made by him:Gr. No.S. No. Name of articlesApproved rate / Quantity requiredII3Milk 4200 maunds;Rs. 15.90 (Rupees fifteen and ninety naya paise)Cost : Rs.if any of the articles is controlled during the period of operation of this agreement the contractor shall be paid at controlled rates for the supplies of that article made by him."The mere fact that a commodity could be sold in the market below the price fixed by a notification fixing the maximum price by government would not indicate that there was no control. Control of any of the articles contemplated by the parties under the agreement was a control of the price of the articles. We do not think that the parties could have visualized any other control in the context of "the contractor being paid at the controlled rates".8. We think that fixation of the maximum price at which an article shall be sold is the controlled rate for the supply of that article within the meaning of the agreement. The fact that sellers are free to sell the article at a price lower than the maximum fixed by the government would not show that there was no control of the commodity. We do not understand how an article can be controlled under Section 3 of the Hoarding and Profiteering Prevention Ordinance, except by a notification fixing the maximum price for the sale of the article. We think that the appellants case is covered by the express term of the agreement and he was entitled to get the amount as decreed by the trial Court. | 1 | 1,224 | 725 | ### Instruction:
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### Input:
the agreement was that if milk became a controlled article during the period of the agreement, the contractor shall be paid at the controlled rate for the supply of the articles made by him. This is practically the same as paragraph 12 of the Tender Notice. In pursuance to the agreement, the appellant supplied milk to the hospital during the period of the agreement. The price of milk was controlled by virtue of a notification issued on May 3, 1961 and this control remained in force till the end of the contract period namely, March 31, 1962. The case of the appellant was that althought he agreed to supply milk at the rate of Rs. 15.90 per maund as the controlled price was Rs. 25/- per maund he was entitled to be paid at this rate after the date of the notification controlling the price. He, therefore, claimed price of milk at the rate of Rs. 25/-per maund from May 2, 1961, to the end of March, 1962, and filed the suit.2. The defendants contended that there was no control by Government of the price of milk in the strict sense of the term and the appellant, having agreed to supply milk at the rate of Rs. 15.90 per maund, could not take advantage of the control of the price of milk, and therefore, he was not entitled to be paid at the rate of Rs. 25 /- per maund for the period in question.3. A learned single Judge of the High Court, who tried the case, came to the conclusion that the appellant was entitled to the price mentioned in the notification and decreed the suit on that basis. The State filed an appeal against the decree before the Division Bench. The Division Bench reversed the dcecision and dismissed the suit.4. The only question for consideration is whether the appellant was entitled to get Rs. 25/- per maund as the price for the milk supplied by him from the date of the notification.5. The Division Bench was of the view that the notification did not control the price of milk but only fixed the maximum price at which milk could be bought and sold in the market and that did not deter any person from selling milk at a price lower than that fixed by the notification and so, the appellant could have purchased milk in the market at a lower price and supplied it to the Hospital in accordance with the terms of the agreement, namely, at Rs. 15.90 per maund.6. The notification in question runs as follows:"In exercise of the powers vested in me under Section 3 of Hoarding and Profiteering Prevention Ordinance 2000, as amended to date, I., S. A. S. Qaidri, Director, Food and Supplies, Kashmir Province, designated Controller General under Section 2 (c) of the said Act vide notification dated 3-7-59 issued under Home Secretariat No. S. 7 I-S/59 dated 8-7-1959 hereby fix maximum price of sale for the following essential commodities in the following localities as shown against each:-xx xxMilkRs.-/10/- per seer" There can be no doubt that when a Government regulates the price of a commodity, it begets a tendency in the market to raise the price of the commodity at least to the level of the price fixed by the Government. No person would normally agree, after the notification, to sell or supply milk at a price lower than the one fixed by the Government even though there is no bar to his selling the same at a lower price.7. In fact, the appellant has examined 8 witnesses to show that, after the notification, the price of milk went up and they supplied milk to the appellant at Rs. 23.50 per maund. The witnesses examined on behalf of the respondents have also stated that after the control of the price of milk went up in the market. Thus, the evidence adduced on behalf of the respondents also shows that the price of milk by the notification, the price of milk went up in the market after the notification. As already stated the positive evidence of PWs. 1 to 8 is to the effect that the appellant himself purchased milk from them at the rate of Rs. 23.50 per maund after the aforesaid notification.The relevant clause in the agreement runs as follows:"The contractor shall be paid at the rates against each of the article as below for the supplies to be made by him:Gr. No.S. No. Name of articlesApproved rate / Quantity requiredII3Milk 4200 maunds;Rs. 15.90 (Rupees fifteen and ninety naya paise)Cost : Rs. 66780.00Provided if any of the articles is controlled during the period of operation of this agreement the contractor shall be paid at controlled rates for the supplies of that article made by him."The mere fact that a commodity could be sold in the market below the price fixed by a notification fixing the maximum price by government would not indicate that there was no control. Control of any of the articles contemplated by the parties under the agreement was a control of the price of the articles. We do not think that the parties could have visualized any other control in the context of "the contractor being paid at the controlled rates".8. We think that fixation of the maximum price at which an article shall be sold is the controlled rate for the supply of that article within the meaning of the agreement. The fact that sellers are free to sell the article at a price lower than the maximum fixed by the government would not show that there was no control of the commodity. We do not understand how an article can be controlled under Section 3 of the Hoarding and Profiteering Prevention Ordinance, except by a notification fixing the maximum price for the sale of the article. We think that the appellants case is covered by the express term of the agreement and he was entitled to get the amount as decreed by the trial Court.
### Response:
1
### Explanation:
5. The Division Bench was of the view that the notification did not control the price of milk but only fixed the maximum price at which milk could be bought and sold in the market and that did not deter any person from selling milk at a price lower than that fixed by the notification and so, the appellant could have purchased milk in the market at a lower price and supplied it to the Hospital in accordance with the terms of the agreement, namely, at Rs. 15.90 per maund.6. The notification in question runs as follows:"In exercise of the powers vested in me under Section 3 of Hoarding and Profiteering Prevention Ordinance 2000, as amended to date, I., S. A. S. Qaidri, Director, Food and Supplies, Kashmir Province, designated Controller General under Section 2 (c) of the said Act vide notification datedissued under Home Secretariat No. S. 759 hereby fix maximum price of sale for the following essential commodities in the following localities as shown againster seer" There can be no doubt that when a Government regulates the price of a commodity, it begets a tendency in the market to raise the price of the commodity at least to the level of the price fixed by the Government. No person would normally agree, after the notification, to sell or supply milk at a price lower than the one fixed by the Government even though there is no bar to his selling the same at a lower price.7. In fact, the appellant has examined 8 witnesses to show that, after the notification, the price of milk went up and they supplied milk to the appellant at Rs. 23.50 per maund. The witnesses examined on behalf of the respondents have also stated that after the control of the price of milk went up in the market. Thus, the evidence adduced on behalf of the respondents also shows that the price of milk by the notification, the price of milk went up in the market after the notification. As already stated the positive evidence of PWs. 1 to 8 is to the effect that the appellant himself purchased milk from them at the rate of Rs. 23.50 per maund after the aforesaid notification.The relevant clause in the agreement runs as follows:"The contractor shall be paid at the rates against each of the article as below for the supplies to be made by him:Gr. No.S. No. Name of articlesApproved rate / Quantity requiredII3Milk 4200 maunds;Rs. 15.90 (Rupees fifteen and ninety naya paise)Cost : Rs.if any of the articles is controlled during the period of operation of this agreement the contractor shall be paid at controlled rates for the supplies of that article made by him."The mere fact that a commodity could be sold in the market below the price fixed by a notification fixing the maximum price by government would not indicate that there was no control. Control of any of the articles contemplated by the parties under the agreement was a control of the price of the articles. We do not think that the parties could have visualized any other control in the context of "the contractor being paid at the controlled rates".8. We think that fixation of the maximum price at which an article shall be sold is the controlled rate for the supply of that article within the meaning of the agreement. The fact that sellers are free to sell the article at a price lower than the maximum fixed by the government would not show that there was no control of the commodity. We do not understand how an article can be controlled under Section 3 of the Hoarding and Profiteering Prevention Ordinance, except by a notification fixing the maximum price for the sale of the article. We think that the appellants case is covered by the express term of the agreement and he was entitled to get the amount as decreed by the trial Court.
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State of Punjab Vs. Pargat Singh & Others | to undergo further rigorous imprisonment for one year. He was also sentenced to undergo rigorous imprisonment for a period of seven years under Section 307 IPC read with Section 34 IPC and to pay a fine of Rs. 2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months (nine counts).6. Pargat Singh, Chand Singh and Baljit Singh were sentenced to undergo imprisonment for seven years and to pay a fine of Rs. 2,000/- each and in default of payment of fine to undergo further rigorous imprisonment for six months each under Section 307/34 IPC (nine counts).7. Darshan Singh was sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo further rigorous imprisonment for one year under Section 120-B read with Section 302 IPC. He was also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months under Section 120-B read with Section 307 IPC (nine counts).8. All the accused filed appeals before the High Court, which were allowed by the High Court. The High Court accepted the defence arguments that it was a case of an accident with truck-jeep on right side and occupants of truck fled away. The High Court also noticed that the accused were not armed with any weapon. 9. Learned counsel appearing for the appellant-State, questioning the judgment of the High Court, contended that the Trial Court has rightly convicted the accused and after marshalling the oral evidence, had recorded the finding that the crime was committed due to enmity. The truck was purchased by Darshan Singh only two weeks before the incident. 10. We have heard the learned counsel and perused the record. The High Court had accepted the submission of defence counsel that it was due to previous enmity the accused were falsely implicated in the present case. PW1 had admitted that a number of cases were registered against the accused. The story that a conspiracy was hatched on to commit the crime, was correctly disbelieved by the High Court with the observation that had they been aware of the conspiracy, they could have sent intimation to the police or to Panchayat or any other respectable person of the village. The High Court had referred to the mechanical test report which mentioned that right side of the truck had struck against the right side of the jeep, which means that there was no head on collusion between two vehicles. The High Court relied upon the photograph showing the tyre marks which indicated that brakes were applied to avoid the accident. The High Court due to the aforesaid reasons, came to the conclusion that possibility of false implication cannot be ruled out. The oral evidence which was led before the Court was marshalled and referred to by the High Court. The fact which also weighed with the High Court correctly is that none of the appellants were armed with any weapon and if the intention of the accused were to commit murder, in the normal course they must have carried arms. It shall be useful to reproduce the following finding and conclusion recorded by the High Court: "...Evidence shows that initially challan was presented against Pargat Singh and Jarnail Singh. After that report was submitted under Section 173(8) Cr.P.C. by challaning only Malkiat Singh to face trial under Sections 304-A, 279, 337 and 338 IPC. Complainant-Party had stated from village Moga on the day of occurrence and by passing through number of villages had gone to village Samadh Bhai. From Samadh Bhai, they along with Gejo (sister of Gurmail Singh) and Manpreet Kaur (daughter of Gejo) started for returning to village Khai. On the way two ladies had taken lift on their jeep. Jeep carrying seven persons was going towards village Khai. From a distance of approximately 1 ½ killa, a truck was noticed while coming from the front side. No mobile phone was recovered from the appellants-accused. No one was following the complainant-party. There is nothing on the file that intimation was given to the appellants-accused that at about 4.30 p.m. complainant-party would be at a distance of 1 ½ kilometers from village Raunta. Appellantsaccused were not armed. After the accident, the appellants-accused had fled away from the spot. If intention of the appellants-accused was to murder then they should be armed with different weapons. After striking truck against the jeep, appellants could easily cause injuries to the complainant-party. It is highly doubtful that the appellant-accused had the knowledge that at about 4.30 p.m. complainant-party would be at a distance of about 1 ½ kilometers from Raunta after covering a number of village photographs on the file shows that right side of the truck had struck against the right side of the jeep. Number of persons were working in the adjoining fields. After the accident, appellants-accused did not cause injury to any of the occupants of the jeep. Receipt of compensation from the Insurance Company by the Lrs of Rajinder Singh shows that it was a clear cut case of accident. But on account of previous enmity, the appellants-accused were implicated in a case under Section 302 IPC." 11. We fully endorse the view taken by the High Court in acquitting all the accused. Admittedly, both the vehicles colluded on the right side and from the tyre mark as apparent from the photographs, it is clear that brakes were applied to avoid the accident. False implication due to previous enmity was a plausible view and the High Court did not commit any error in acquitting the accused, accepting the defence version that it was a case of accident in which one person had died and others were injured. It is well settled that in a case of acquittal, if two views are possible, the Court shall not interfere in a judgment acquitting the accused. | 0[ds]The High Court due to the aforesaid reasons, came to the conclusion that possibility of false implication cannot be ruled out. The oral evidence which was led before the Court was marshalled and referred to by the High Court. The fact which also weighed with the High Court correctly is that none of the appellants were armed with any weapon and if the intention of the accused were to commit murder, in the normal course they must have carried arms.We fully endorse the view taken by the High Court in acquitting all the accused. Admittedly, both the vehicles colluded on the right side and from the tyre mark as apparent from the photographs, it is clear that brakes were applied to avoid the accident. False implication due to previous enmity was a plausible view and the High Court did not commit any error in acquitting the accused, accepting the defence version that it was a case of accident in which one person had died and others were injured. It is well settled that in a case of acquittal, if two views are possible, the Court shall not interfere in a judgment acquitting the accused. | 0 | 1,708 | 212 | ### Instruction:
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### Input:
to undergo further rigorous imprisonment for one year. He was also sentenced to undergo rigorous imprisonment for a period of seven years under Section 307 IPC read with Section 34 IPC and to pay a fine of Rs. 2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months (nine counts).6. Pargat Singh, Chand Singh and Baljit Singh were sentenced to undergo imprisonment for seven years and to pay a fine of Rs. 2,000/- each and in default of payment of fine to undergo further rigorous imprisonment for six months each under Section 307/34 IPC (nine counts).7. Darshan Singh was sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo further rigorous imprisonment for one year under Section 120-B read with Section 302 IPC. He was also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months under Section 120-B read with Section 307 IPC (nine counts).8. All the accused filed appeals before the High Court, which were allowed by the High Court. The High Court accepted the defence arguments that it was a case of an accident with truck-jeep on right side and occupants of truck fled away. The High Court also noticed that the accused were not armed with any weapon. 9. Learned counsel appearing for the appellant-State, questioning the judgment of the High Court, contended that the Trial Court has rightly convicted the accused and after marshalling the oral evidence, had recorded the finding that the crime was committed due to enmity. The truck was purchased by Darshan Singh only two weeks before the incident. 10. We have heard the learned counsel and perused the record. The High Court had accepted the submission of defence counsel that it was due to previous enmity the accused were falsely implicated in the present case. PW1 had admitted that a number of cases were registered against the accused. The story that a conspiracy was hatched on to commit the crime, was correctly disbelieved by the High Court with the observation that had they been aware of the conspiracy, they could have sent intimation to the police or to Panchayat or any other respectable person of the village. The High Court had referred to the mechanical test report which mentioned that right side of the truck had struck against the right side of the jeep, which means that there was no head on collusion between two vehicles. The High Court relied upon the photograph showing the tyre marks which indicated that brakes were applied to avoid the accident. The High Court due to the aforesaid reasons, came to the conclusion that possibility of false implication cannot be ruled out. The oral evidence which was led before the Court was marshalled and referred to by the High Court. The fact which also weighed with the High Court correctly is that none of the appellants were armed with any weapon and if the intention of the accused were to commit murder, in the normal course they must have carried arms. It shall be useful to reproduce the following finding and conclusion recorded by the High Court: "...Evidence shows that initially challan was presented against Pargat Singh and Jarnail Singh. After that report was submitted under Section 173(8) Cr.P.C. by challaning only Malkiat Singh to face trial under Sections 304-A, 279, 337 and 338 IPC. Complainant-Party had stated from village Moga on the day of occurrence and by passing through number of villages had gone to village Samadh Bhai. From Samadh Bhai, they along with Gejo (sister of Gurmail Singh) and Manpreet Kaur (daughter of Gejo) started for returning to village Khai. On the way two ladies had taken lift on their jeep. Jeep carrying seven persons was going towards village Khai. From a distance of approximately 1 ½ killa, a truck was noticed while coming from the front side. No mobile phone was recovered from the appellants-accused. No one was following the complainant-party. There is nothing on the file that intimation was given to the appellants-accused that at about 4.30 p.m. complainant-party would be at a distance of 1 ½ kilometers from village Raunta. Appellantsaccused were not armed. After the accident, the appellants-accused had fled away from the spot. If intention of the appellants-accused was to murder then they should be armed with different weapons. After striking truck against the jeep, appellants could easily cause injuries to the complainant-party. It is highly doubtful that the appellant-accused had the knowledge that at about 4.30 p.m. complainant-party would be at a distance of about 1 ½ kilometers from Raunta after covering a number of village photographs on the file shows that right side of the truck had struck against the right side of the jeep. Number of persons were working in the adjoining fields. After the accident, appellants-accused did not cause injury to any of the occupants of the jeep. Receipt of compensation from the Insurance Company by the Lrs of Rajinder Singh shows that it was a clear cut case of accident. But on account of previous enmity, the appellants-accused were implicated in a case under Section 302 IPC." 11. We fully endorse the view taken by the High Court in acquitting all the accused. Admittedly, both the vehicles colluded on the right side and from the tyre mark as apparent from the photographs, it is clear that brakes were applied to avoid the accident. False implication due to previous enmity was a plausible view and the High Court did not commit any error in acquitting the accused, accepting the defence version that it was a case of accident in which one person had died and others were injured. It is well settled that in a case of acquittal, if two views are possible, the Court shall not interfere in a judgment acquitting the accused.
### Response:
0
### Explanation:
The High Court due to the aforesaid reasons, came to the conclusion that possibility of false implication cannot be ruled out. The oral evidence which was led before the Court was marshalled and referred to by the High Court. The fact which also weighed with the High Court correctly is that none of the appellants were armed with any weapon and if the intention of the accused were to commit murder, in the normal course they must have carried arms.We fully endorse the view taken by the High Court in acquitting all the accused. Admittedly, both the vehicles colluded on the right side and from the tyre mark as apparent from the photographs, it is clear that brakes were applied to avoid the accident. False implication due to previous enmity was a plausible view and the High Court did not commit any error in acquitting the accused, accepting the defence version that it was a case of accident in which one person had died and others were injured. It is well settled that in a case of acquittal, if two views are possible, the Court shall not interfere in a judgment acquitting the accused.
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Nirmal Enem Horo Vs. Jahan Ara Jaipal Singh | marriage ended in a divorce. In the course of her evidence in the previous petition, namely, Election Petition No. 2 of 1970 it seems to have been elicited that she had married Mr. Jaipal Singh on 7-5-1954 and that the decree nisi had been made absolute on 6-5-1954. It was contended before the learned Judge that in view of Section 57 of the Indian Divorce Act, 1869 Mrs. Jaipal Singh could not enter into a second marriage until after the expiry of six months from the date the decree had been made absolute. The learned Judge pointed out that this very point had been taken before the Supreme Court in the previous petition and, therefore, must be deemed to have been finally decided. The learned Judge was of the opinion that the bar under Sections 57 of the Indian Divorce Act, 1869 was a matter which might and ought to have been made a ground of defence in the former election petition and consequently it was deemed to be a matter directly and substantially in issue in the previous election petition and, therefore, cannot be allowed to be raised in the present petition.8. This Courts judgment in the previous petition clearly goes to show that this Court refused to entertain this ground as it had not been pleaded or pressed before the trial court, Mr. Anthony, appearing for Mr. Horo in that appeal had distinctly raised this point as is seen from para 11 of the judgment at page 1844 of the report. That point was disposed of by this Court with these observations to be found in para 12."As regards tile first point it was never canvassed or argued before the High Court. No plea was taken by Shri Horo in the written statement that there could be no valid marriage between the respondent and late Shri Jaipal Singh owing to the provisions contained in S. 57 of the Indian Divorce Act 1869 until after the lapse of a period of six months from the date the decree of divorce was made absolute. None of the issues which were framed by the High Court involves the question now sought to be agitated based on the provisions of S. 57 of the Indian Divorce Act. It appears that advantage is sought to be taken from the statement of the respondent about the dates when the decree absolute was granted and when the marriage took place between the respondent and late Shri Jaipal Singh. In the absence of any pleadings or issues no material has been placed on the record to show that in view of the provisions of Section 57 of the aforesaid Act there could not be a valid marriage according to the Munda customary law. It must be remembered that the respondent contracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and not as one Christian marrying another Christian. Nor was the matter pursued in cross-examination of the respondent and she was not asked as to how she could get over the bar of S. 57 in the way of remarriage before the expiry of the prescribed period. In these circumstances we do not consider that such a point can be allowed to be agitated for the first time before this court."9. The above passage goes to show that the point was finally disposed of. Some snap answers given by the respondent in her evidence in that case were sought to be exploited in this court for the purpose of supporting a new argument under S. 57 of the Indian Divorce Act, 1869 although there was no plea either in the pleadings or in the arguments before the learned Judge who decided the petition. The observations proceed on the basis that it was open to the parties to put forward the plea which Mr. Horo later put forward before the Supreme Court and since the same was not done, this court could not permit the plea to be taken for the first time in this court.It is not as if this court kept the matter open for re-agitation. It definitely ruled out the plea because it was not pressed before the learned Judge who dealt with the election petition. Mr. Anthony submitted that the question of res judicata does not arise under Explanation 4 of Section 11 of the Code of Civil Procedure because the expression "any matter which might and ought to have been made ground of defence" postulates knowledge of a fact by the party making the defence. He further submitted that Mr. Horo could not possibly know about the past of Mrs. Jaipal Singh and his only source of knowledge at the time was Mrs. Jaipal Singh herself. The answer to this is already given in the judgment. If Mr. Horos source of information was Mrs. Jaipal Singh when she was in the witness box it was open to him as pointed out in the judgment to pursue the cross-examination with a view to show that the bar under Section 57 of the Divorce Act would be effective. Even after getting the two dates in the course of the evidence no body thought of Section 57, which may either be because counsel appearing for Mr. Horo then or Mr. Horo himself did not believe the dates given by Mrs. Jaipal Singh to be accurate or because they did not want to make any capital of the snap answers given in the course of the evidence since the point was not raised in the pleadings nor put in issue. The judgment clearly suggests that it was open to agitate the matter before the High Court hearing the petition on the basis of Section 57. But the point was not pressed and must be deemed to have been given up. That was why this court did not allow the point to be raised in appeal. In these circumstances it is not open to re-agitate it between the parties in a subsequent proceeding. | 0[ds]7. It appears that Mrs. Jaipal Singh is a Ceylonese Tamil Christian. Her first marriage was with Mr. Curtis. But that marriage ended in a divorce. In the course of her evidence in the previous petition, namely, Election Petition No. 2 of 1970 it seems to have been elicited that she had married Mr. Jaipal Singh onand that the decree nisi had been made absolute onIt was contended before the learned Judge that in view of Section 57 of the Indian Divorce Act, 1869 Mrs. Jaipal Singh could not enter into a second marriage until after the expiry of six months from the date the decree had been made absolute. The learned Judge pointed out that this very point had been taken before the Supreme Court in the previous petition and, therefore, must be deemed to have been finally decided. The learned Judge was of the opinion that the bar under Sections 57 of the Indian Divorce Act, 1869 was a matter which might and ought to have been made a ground of defence in the former election petition and consequently it was deemed to be a matter directly and substantially in issue in the previous election petition and, therefore, cannot be allowed to be raised in the present petition.8. This Courts judgment in the previous petition clearly goes to show that this Court refused to entertain this ground as it had not been pleaded or pressed before the trial court, Mr. Anthony, appearing for Mr. Horo in that appeal had distinctly raised this point as is seen from para 11 of the judgment at page 1844 of the report. That point was disposed of by this Court with these observations to be found in pararegards tile first point it was never canvassed or argued before the High Court. No plea was taken by Shri Horo in the written statement that there could be no valid marriage between the respondent and late Shri Jaipal Singh owing to the provisions contained in S. 57 of the Indian Divorce Act 1869 until after the lapse of a period of six months from the date the decree of divorce was made absolute. None of the issues which were framed by the High Court involves the question now sought to be agitated based on the provisions of S. 57 of the Indian Divorce Act. It appears that advantage is sought to be taken from the statement of the respondent about the dates when the decree absolute was granted and when the marriage took place between the respondent and late Shri Jaipal Singh. In the absence of any pleadings or issues no material has been placed on the record to show that in view of the provisions of Section 57 of the aforesaid Act there could not be a valid marriage according to the Munda customary law. It must be remembered that the respondent contracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and not as one Christian marrying another Christian. Nor was the matter pursued inof the respondent and she was not asked as to how she could get over the bar of S. 57 in the way of remarriage before the expiry of the prescribed period. In these circumstances we do not consider that such a point can be allowed to be agitated for the first time before this court.The above passage goes to show that the point was finally disposed of. Some snap answers given by the respondent in her evidence in that case were sought to be exploited in this court for the purpose of supporting a new argument under S. 57 of the Indian Divorce Act, 1869 although there was no plea either in the pleadings or in the arguments before the learned Judge who decided the petition. The observations proceed on the basis that it was open to the parties to put forward the plea which Mr. Horo later put forward before the Supreme Court and since the same was not done, this court could not permit the plea to be taken for the first time in this court.It is not as if this court kept the matter open forIt definitely ruled out the plea because it was not pressed before the learned Judge who dealt with the election petition. Mr. Anthony submitted that the question of res judicata does not arise under Explanation 4 of Section 11 of the Code of Civil Procedure because the expression "any matter which might and ought to have been made ground of defence" postulates knowledge of a fact by the party making the defence. He further submitted that Mr. Horo could not possibly know about the past of Mrs. Jaipal Singh and his only source of knowledge at the time was Mrs. Jaipal Singh herself. The answer to this is already given in the judgment. If Mr. Horos source of information was Mrs. Jaipal Singh when she was in the witness box it was open to him as pointed out in the judgment to pursue thewith a view to show that the bar under Section 57 of the Divorce Act would be effective. Even after getting the two dates in the course of the evidence no body thought of Section 57, which may either be because counsel appearing for Mr. Horo then or Mr. Horo himself did not believe the dates given by Mrs. Jaipal Singh to be accurate or because they did not want to make any capital of the snap answers given in the course of the evidence since the point was not raised in the pleadings nor put in issue. The judgment clearly suggests that it was open to agitate the matter before the High Court hearing the petition on the basis of Section 57. But the point was not pressed and must be deemed to have been given up. That was why this court did not allow the point to be raised in appeal. In these circumstances it is not open toit between the parties in a subsequent proceeding. | 0 | 2,265 | 1,054 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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marriage ended in a divorce. In the course of her evidence in the previous petition, namely, Election Petition No. 2 of 1970 it seems to have been elicited that she had married Mr. Jaipal Singh on 7-5-1954 and that the decree nisi had been made absolute on 6-5-1954. It was contended before the learned Judge that in view of Section 57 of the Indian Divorce Act, 1869 Mrs. Jaipal Singh could not enter into a second marriage until after the expiry of six months from the date the decree had been made absolute. The learned Judge pointed out that this very point had been taken before the Supreme Court in the previous petition and, therefore, must be deemed to have been finally decided. The learned Judge was of the opinion that the bar under Sections 57 of the Indian Divorce Act, 1869 was a matter which might and ought to have been made a ground of defence in the former election petition and consequently it was deemed to be a matter directly and substantially in issue in the previous election petition and, therefore, cannot be allowed to be raised in the present petition.8. This Courts judgment in the previous petition clearly goes to show that this Court refused to entertain this ground as it had not been pleaded or pressed before the trial court, Mr. Anthony, appearing for Mr. Horo in that appeal had distinctly raised this point as is seen from para 11 of the judgment at page 1844 of the report. That point was disposed of by this Court with these observations to be found in para 12."As regards tile first point it was never canvassed or argued before the High Court. No plea was taken by Shri Horo in the written statement that there could be no valid marriage between the respondent and late Shri Jaipal Singh owing to the provisions contained in S. 57 of the Indian Divorce Act 1869 until after the lapse of a period of six months from the date the decree of divorce was made absolute. None of the issues which were framed by the High Court involves the question now sought to be agitated based on the provisions of S. 57 of the Indian Divorce Act. It appears that advantage is sought to be taken from the statement of the respondent about the dates when the decree absolute was granted and when the marriage took place between the respondent and late Shri Jaipal Singh. In the absence of any pleadings or issues no material has been placed on the record to show that in view of the provisions of Section 57 of the aforesaid Act there could not be a valid marriage according to the Munda customary law. It must be remembered that the respondent contracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and not as one Christian marrying another Christian. Nor was the matter pursued in cross-examination of the respondent and she was not asked as to how she could get over the bar of S. 57 in the way of remarriage before the expiry of the prescribed period. In these circumstances we do not consider that such a point can be allowed to be agitated for the first time before this court."9. The above passage goes to show that the point was finally disposed of. Some snap answers given by the respondent in her evidence in that case were sought to be exploited in this court for the purpose of supporting a new argument under S. 57 of the Indian Divorce Act, 1869 although there was no plea either in the pleadings or in the arguments before the learned Judge who decided the petition. The observations proceed on the basis that it was open to the parties to put forward the plea which Mr. Horo later put forward before the Supreme Court and since the same was not done, this court could not permit the plea to be taken for the first time in this court.It is not as if this court kept the matter open for re-agitation. It definitely ruled out the plea because it was not pressed before the learned Judge who dealt with the election petition. Mr. Anthony submitted that the question of res judicata does not arise under Explanation 4 of Section 11 of the Code of Civil Procedure because the expression "any matter which might and ought to have been made ground of defence" postulates knowledge of a fact by the party making the defence. He further submitted that Mr. Horo could not possibly know about the past of Mrs. Jaipal Singh and his only source of knowledge at the time was Mrs. Jaipal Singh herself. The answer to this is already given in the judgment. If Mr. Horos source of information was Mrs. Jaipal Singh when she was in the witness box it was open to him as pointed out in the judgment to pursue the cross-examination with a view to show that the bar under Section 57 of the Divorce Act would be effective. Even after getting the two dates in the course of the evidence no body thought of Section 57, which may either be because counsel appearing for Mr. Horo then or Mr. Horo himself did not believe the dates given by Mrs. Jaipal Singh to be accurate or because they did not want to make any capital of the snap answers given in the course of the evidence since the point was not raised in the pleadings nor put in issue. The judgment clearly suggests that it was open to agitate the matter before the High Court hearing the petition on the basis of Section 57. But the point was not pressed and must be deemed to have been given up. That was why this court did not allow the point to be raised in appeal. In these circumstances it is not open to re-agitate it between the parties in a subsequent proceeding.
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Singh is a Ceylonese Tamil Christian. Her first marriage was with Mr. Curtis. But that marriage ended in a divorce. In the course of her evidence in the previous petition, namely, Election Petition No. 2 of 1970 it seems to have been elicited that she had married Mr. Jaipal Singh onand that the decree nisi had been made absolute onIt was contended before the learned Judge that in view of Section 57 of the Indian Divorce Act, 1869 Mrs. Jaipal Singh could not enter into a second marriage until after the expiry of six months from the date the decree had been made absolute. The learned Judge pointed out that this very point had been taken before the Supreme Court in the previous petition and, therefore, must be deemed to have been finally decided. The learned Judge was of the opinion that the bar under Sections 57 of the Indian Divorce Act, 1869 was a matter which might and ought to have been made a ground of defence in the former election petition and consequently it was deemed to be a matter directly and substantially in issue in the previous election petition and, therefore, cannot be allowed to be raised in the present petition.8. This Courts judgment in the previous petition clearly goes to show that this Court refused to entertain this ground as it had not been pleaded or pressed before the trial court, Mr. Anthony, appearing for Mr. Horo in that appeal had distinctly raised this point as is seen from para 11 of the judgment at page 1844 of the report. That point was disposed of by this Court with these observations to be found in pararegards tile first point it was never canvassed or argued before the High Court. No plea was taken by Shri Horo in the written statement that there could be no valid marriage between the respondent and late Shri Jaipal Singh owing to the provisions contained in S. 57 of the Indian Divorce Act 1869 until after the lapse of a period of six months from the date the decree of divorce was made absolute. None of the issues which were framed by the High Court involves the question now sought to be agitated based on the provisions of S. 57 of the Indian Divorce Act. It appears that advantage is sought to be taken from the statement of the respondent about the dates when the decree absolute was granted and when the marriage took place between the respondent and late Shri Jaipal Singh. In the absence of any pleadings or issues no material has been placed on the record to show that in view of the provisions of Section 57 of the aforesaid Act there could not be a valid marriage according to the Munda customary law. It must be remembered that the respondent contracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and not as one Christian marrying another Christian. Nor was the matter pursued inof the respondent and she was not asked as to how she could get over the bar of S. 57 in the way of remarriage before the expiry of the prescribed period. In these circumstances we do not consider that such a point can be allowed to be agitated for the first time before this court.The above passage goes to show that the point was finally disposed of. Some snap answers given by the respondent in her evidence in that case were sought to be exploited in this court for the purpose of supporting a new argument under S. 57 of the Indian Divorce Act, 1869 although there was no plea either in the pleadings or in the arguments before the learned Judge who decided the petition. The observations proceed on the basis that it was open to the parties to put forward the plea which Mr. Horo later put forward before the Supreme Court and since the same was not done, this court could not permit the plea to be taken for the first time in this court.It is not as if this court kept the matter open forIt definitely ruled out the plea because it was not pressed before the learned Judge who dealt with the election petition. Mr. Anthony submitted that the question of res judicata does not arise under Explanation 4 of Section 11 of the Code of Civil Procedure because the expression "any matter which might and ought to have been made ground of defence" postulates knowledge of a fact by the party making the defence. He further submitted that Mr. Horo could not possibly know about the past of Mrs. Jaipal Singh and his only source of knowledge at the time was Mrs. Jaipal Singh herself. The answer to this is already given in the judgment. If Mr. Horos source of information was Mrs. Jaipal Singh when she was in the witness box it was open to him as pointed out in the judgment to pursue thewith a view to show that the bar under Section 57 of the Divorce Act would be effective. Even after getting the two dates in the course of the evidence no body thought of Section 57, which may either be because counsel appearing for Mr. Horo then or Mr. Horo himself did not believe the dates given by Mrs. Jaipal Singh to be accurate or because they did not want to make any capital of the snap answers given in the course of the evidence since the point was not raised in the pleadings nor put in issue. The judgment clearly suggests that it was open to agitate the matter before the High Court hearing the petition on the basis of Section 57. But the point was not pressed and must be deemed to have been given up. That was why this court did not allow the point to be raised in appeal. In these circumstances it is not open toit between the parties in a subsequent proceeding.
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Govt. Of India Vs. Court Liquidator'S Employees Assn | judgment of the Single Judge of the Calcutta High Court and in the Kerala cases from the date of appointment.On the other hand, Mr. Malhotra, learned senior counsel appearing for the Union of India, submitted that the appointees were not appointed by the Government and they were not paid salaries from the consolidated fund. On the other hand, they were paid salaries from the concerned companies under liquidation. In certain High Courts, there are Official Liquidators and Court Liquidators appointed under Section 38A of Banking (Regulation) Act. The Banking Companies under liquidation originally were 75, now only there are 32 banking companies under liquidation. The appointment under Court orders are not for a permanent department like Official Liquidators Office and, therefore, the appointees cannot demand regularisation and payment of equal salary as that of salaries paid to regular employees in the Office of the Official Liquidator.The hard reality is that the appointees are continued on the basis of fixed salary without any retiral benefits such as pension and gratuity for more than 25 years and the functions they are discharging are similar to the one discharged by the employees in the office of the Official Liquidator without getting equal treatment. In the circumstances, before rendering a decision on merits by the Court, Mr. Malhotra, learned senior counsel, desired that the government be given an opportunity to consider the matter in the light of the findings rendered by the High Courts and to come forward with an acceptable solution.The matters are adjourned by four weeks." 18. In response to the above order, the appellants through its Under Secretary to the Government of India, Ministry of Finance, Department of Company Affairs, New Delhi, have filed an additional affidavit setting out the circumstances leading to the filing of the appeal and after referring to the Absorption Scheme of November, 1978, it is stated in paragraphs 14 to 16 as follows :- "14. That in pursuance to the order dated 14.01.1998, the Government considered various options to find out an acceptable solution in regard to the company paid staff. The following three options were discussed :-(i) One option that was discussed was to repeat scheme for absorption of Company Paid Staff as was done through the 1978 Scheme of Department of Company Affairs. There are certain practical problems in following this course of action. As per the 1978 scheme such absorption is possible to the extent of 50% only under the direct recruitment quota in the appropriate grade. As the position obtains in the Department of Company Affairs, there is lack of adequate number of vacancies in the aforesaid category (direct recruitment) for the purpose to facilitate absorption of all these company paid staff in the Department of Company Affairs.(ii) The second alternative that was discussed was to continue the present arrangement without absorption of these company paid staff. In such a situation, their salaries and service conditions could suitably be revised by the Honble Company Judges with reference to funds available with the OLs in the various High Courts. According to information gathered, most of the OLs attached to various High Courts have annual surpluses. The balances in the funds maintained by many OLs are substantial; and(iii) The third option that was discussed was to grant them age relaxation and ask them to sit in the open competitive examination as a one time measure. This would give them a general opening not restricted to jobs in these two Departments.15. The Government has considered the above three alternatives and is of the view that out of the said solutions, proposals at No. (ii) and (iii) of para 14 can be considered subject to the orders of this Honble Court.16. I further say and submit that the precedent of regularisation of the company paid staff referred to in the judgment of the Honble High Court relates to only those staff which was absorbed in pursuance of 1978 Scheme. There has been no regularisation, except for the cases of absorption falling under said 1978 Scheme." 19. We have already set out at more than one place about the findings of the Calcutta High Court and the Kerala High Court rejecting the contention put forward on behalf of the Union of India that the company paid staff were only appointed as per the order of the concerned Company Judge and the salaries were fixed by the Company Judge; that their appointments were purely on temporary basis and solely for the purpose of the work of liquidation proceedings under the charge of the Official Liquidator and that, therefore, they cannot be absorbed as regular Government servants. Both the High Courts have found that the company paid staff had been discharging the duties years together without any break identical to that of the government paid staff in the same Liquidators Office. It was also found that the company paid staff working both under the Court Liquidator and the Official Liquidator were grossly under paid and they have no retiral benefits even after working for 10-25 years.20. In view of the peculiar facts of these cases and the positive findings of the High Courts with which we concur, we are unable to agree with the contention of the learned senior counsel for the appellants that the company paid staff cannot be absorbed/regularised as they were not employed by the Government in accordance with the rules; that they knew their appointments were only temporary and that their pay was not from the consolidated fund.21. Undoubtedly, counsel on both sides cited numerous authorities of this Court on earlier occasions sustaining the orders of absorption and setting aside the orders of absorption. We do not consider it necessary to refer to those decisions inasmuch as the facts presented before us and the findings rendered by the High Courts speak for themselves. As a matter of fact, the Government had considered as one of the options to absorb the company paid staff as was done through the 1978 Scheme of Department of Company Affairs. | 0[ds]15. The Government has considered the above three alternatives and is of the view that out of the said solutions, proposals at No. (ii) and (iii) of para 14 can be considered subject to the orders of this Honble Court.16. I further say and submit that the precedent of regularisation of the company paid staff referred to in the judgment of the Honble High Court relates to only those staff which was absorbed in pursuance of 1978 Scheme. There has been no regularisation, except for the cases of absorption falling under said 1978 Scheme.We have already set out at more than one place about the findings of the Calcutta High Court and the Kerala High Court rejecting the contention put forward on behalf of the Union of India that the company paid staff were only appointed as per the order of the concerned Company Judge and the salaries were fixed by the Company Judge; that their appointments were purely on temporary basis and solely for the purpose of the work of liquidation proceedings under the charge of the Official Liquidator and that, therefore, they cannot be absorbed as regular Government servants. Both the High Courts have found that the company paid staff had been discharging the duties years together without any break identical to that of the government paid staff in the same Liquidators Office. It was also found that the company paid staff working both under the Court Liquidator and the Official Liquidator were grossly under paid and they have no retiral benefits even after working foryears.20. In view of the peculiar facts of these cases and the positive findings of the High Courts with which we concur, we are unable to agree with the contention of the learned senior counsel for the appellants that the company paid staff cannot be absorbed/regularised as they were not employed by the Government in accordance with the rules; that they knew their appointments were only temporary and that their pay was not from the consolidated fund.21. Undoubtedly, counsel on both sides cited numerous authorities of this Court on earlier occasions sustaining the orders of absorption and setting aside the orders of absorption. We do not consider it necessary to refer to those decisions inasmuch as the facts presented before us and the findings rendered by the High Courts speak for themselves. As a matter of fact, the Government had considered as one of the options to absorb the company paid staff as was done through the 1978 Scheme of Department of Company Affairs. | 0 | 4,533 | 451 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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judgment of the Single Judge of the Calcutta High Court and in the Kerala cases from the date of appointment.On the other hand, Mr. Malhotra, learned senior counsel appearing for the Union of India, submitted that the appointees were not appointed by the Government and they were not paid salaries from the consolidated fund. On the other hand, they were paid salaries from the concerned companies under liquidation. In certain High Courts, there are Official Liquidators and Court Liquidators appointed under Section 38A of Banking (Regulation) Act. The Banking Companies under liquidation originally were 75, now only there are 32 banking companies under liquidation. The appointment under Court orders are not for a permanent department like Official Liquidators Office and, therefore, the appointees cannot demand regularisation and payment of equal salary as that of salaries paid to regular employees in the Office of the Official Liquidator.The hard reality is that the appointees are continued on the basis of fixed salary without any retiral benefits such as pension and gratuity for more than 25 years and the functions they are discharging are similar to the one discharged by the employees in the office of the Official Liquidator without getting equal treatment. In the circumstances, before rendering a decision on merits by the Court, Mr. Malhotra, learned senior counsel, desired that the government be given an opportunity to consider the matter in the light of the findings rendered by the High Courts and to come forward with an acceptable solution.The matters are adjourned by four weeks." 18. In response to the above order, the appellants through its Under Secretary to the Government of India, Ministry of Finance, Department of Company Affairs, New Delhi, have filed an additional affidavit setting out the circumstances leading to the filing of the appeal and after referring to the Absorption Scheme of November, 1978, it is stated in paragraphs 14 to 16 as follows :- "14. That in pursuance to the order dated 14.01.1998, the Government considered various options to find out an acceptable solution in regard to the company paid staff. The following three options were discussed :-(i) One option that was discussed was to repeat scheme for absorption of Company Paid Staff as was done through the 1978 Scheme of Department of Company Affairs. There are certain practical problems in following this course of action. As per the 1978 scheme such absorption is possible to the extent of 50% only under the direct recruitment quota in the appropriate grade. As the position obtains in the Department of Company Affairs, there is lack of adequate number of vacancies in the aforesaid category (direct recruitment) for the purpose to facilitate absorption of all these company paid staff in the Department of Company Affairs.(ii) The second alternative that was discussed was to continue the present arrangement without absorption of these company paid staff. In such a situation, their salaries and service conditions could suitably be revised by the Honble Company Judges with reference to funds available with the OLs in the various High Courts. According to information gathered, most of the OLs attached to various High Courts have annual surpluses. The balances in the funds maintained by many OLs are substantial; and(iii) The third option that was discussed was to grant them age relaxation and ask them to sit in the open competitive examination as a one time measure. This would give them a general opening not restricted to jobs in these two Departments.15. The Government has considered the above three alternatives and is of the view that out of the said solutions, proposals at No. (ii) and (iii) of para 14 can be considered subject to the orders of this Honble Court.16. I further say and submit that the precedent of regularisation of the company paid staff referred to in the judgment of the Honble High Court relates to only those staff which was absorbed in pursuance of 1978 Scheme. There has been no regularisation, except for the cases of absorption falling under said 1978 Scheme." 19. We have already set out at more than one place about the findings of the Calcutta High Court and the Kerala High Court rejecting the contention put forward on behalf of the Union of India that the company paid staff were only appointed as per the order of the concerned Company Judge and the salaries were fixed by the Company Judge; that their appointments were purely on temporary basis and solely for the purpose of the work of liquidation proceedings under the charge of the Official Liquidator and that, therefore, they cannot be absorbed as regular Government servants. Both the High Courts have found that the company paid staff had been discharging the duties years together without any break identical to that of the government paid staff in the same Liquidators Office. It was also found that the company paid staff working both under the Court Liquidator and the Official Liquidator were grossly under paid and they have no retiral benefits even after working for 10-25 years.20. In view of the peculiar facts of these cases and the positive findings of the High Courts with which we concur, we are unable to agree with the contention of the learned senior counsel for the appellants that the company paid staff cannot be absorbed/regularised as they were not employed by the Government in accordance with the rules; that they knew their appointments were only temporary and that their pay was not from the consolidated fund.21. Undoubtedly, counsel on both sides cited numerous authorities of this Court on earlier occasions sustaining the orders of absorption and setting aside the orders of absorption. We do not consider it necessary to refer to those decisions inasmuch as the facts presented before us and the findings rendered by the High Courts speak for themselves. As a matter of fact, the Government had considered as one of the options to absorb the company paid staff as was done through the 1978 Scheme of Department of Company Affairs.
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### Explanation:
15. The Government has considered the above three alternatives and is of the view that out of the said solutions, proposals at No. (ii) and (iii) of para 14 can be considered subject to the orders of this Honble Court.16. I further say and submit that the precedent of regularisation of the company paid staff referred to in the judgment of the Honble High Court relates to only those staff which was absorbed in pursuance of 1978 Scheme. There has been no regularisation, except for the cases of absorption falling under said 1978 Scheme.We have already set out at more than one place about the findings of the Calcutta High Court and the Kerala High Court rejecting the contention put forward on behalf of the Union of India that the company paid staff were only appointed as per the order of the concerned Company Judge and the salaries were fixed by the Company Judge; that their appointments were purely on temporary basis and solely for the purpose of the work of liquidation proceedings under the charge of the Official Liquidator and that, therefore, they cannot be absorbed as regular Government servants. Both the High Courts have found that the company paid staff had been discharging the duties years together without any break identical to that of the government paid staff in the same Liquidators Office. It was also found that the company paid staff working both under the Court Liquidator and the Official Liquidator were grossly under paid and they have no retiral benefits even after working foryears.20. In view of the peculiar facts of these cases and the positive findings of the High Courts with which we concur, we are unable to agree with the contention of the learned senior counsel for the appellants that the company paid staff cannot be absorbed/regularised as they were not employed by the Government in accordance with the rules; that they knew their appointments were only temporary and that their pay was not from the consolidated fund.21. Undoubtedly, counsel on both sides cited numerous authorities of this Court on earlier occasions sustaining the orders of absorption and setting aside the orders of absorption. We do not consider it necessary to refer to those decisions inasmuch as the facts presented before us and the findings rendered by the High Courts speak for themselves. As a matter of fact, the Government had considered as one of the options to absorb the company paid staff as was done through the 1978 Scheme of Department of Company Affairs.
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Kandla Export Corporation & Another Vs. M/s. OCI Corporation & Another | laying down the forum which will hear and decide such an appeal. 24. In fact, in Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd. and Ors., (2008) 4 SCC 91 , this Court adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a) and 10F of the Companies Act, 1956, to hold that once an appeal is provided for in Section 50, the Court authorized by law to hear such appeals would then be found in Sections 10(1) (a) and 10F of the Companies Act. The present case is a parallel instance of Section 50 of the Arbitration Act providing for an appeal, and Section 13(1) of the Commercial Courts Act providing the forum for such appeal. Only, in the present case, as no appeal lies under Section 50 of the Arbitration Act, no forum can be provided for. 25. A recent judgment of this Court in Arun Dev Upadhyaya v. Integrated Sales Service Ltd., 2017(1) R.C.R.(Civil) 633 : 2017(1) Recent Apex Judgments (R.A.J.) 172 : (2016) 9 SCC 524 at 537 was adverted to by counsel for both sides. On facts, in this case, the Single Judge had refused to enforce a foreign award in favour of the appellants. The Respondents, in that case, claimed that an appeal from the Single Judge was not maintainable in view of the abolition of the letters patent appeal by a Maharashtra Act of 1986. This Court, following Fuerst Day Lawson (supra), repelled the aforesaid contention in the following terms:"25. The aforesaid provision clearly lays down that a forum is created i.e. Commercial Appellate Division. Section 50(1)(b) of the 1996 Act provides for an appeal. Section 50(1)(b) has not been amended by the Act that has come into force on 23-10-2015. Thus, an appeal under Section 50(1)(b) of the 1996 Act before the Division Bench is maintainable. 26. Thus analysed, we find that the impugned judgment [Integrated Sales Services Ltd. v. DMC Management Consultants Ltd., 2016 SCC OnLine Bom 4445] of the learned Single Judge under Section 50(1)(b) of the 1996 Act is passed in the Original Side of the High Court. Be that as it may, under Section 13 of the Act, the Single Judge has taken the decision. Section 13 bars an appeal under the Letters Patent unless an appeal is provided under the 1996 Act. Such an appeal is provided under Section 5 of the Act. The letters patent appeal could not have been invoked if Section 50 of the 1996 Act would not have provided for an appeal. But it does provide for an appeal. A conspectus reading of Sections 5 and 13 of the Act and Section 50 of the 1996 Act which has remained unamended leads to the irresistible conclusion that a letters patent appeal is maintainable before the Division Bench. It has to be treated as an appeal under Section 50(1)(b) of the 1996 Act and has to be adjudicated within the said parameters."26. What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie. 27. In this view of the case, it is unnecessary to advert to Shri Giris arguments based on Section 21 of the Commercial Courts Act. Section 21 would only apply if Section 13(1) were to apply in the first place, which, as has been found, cannot be held to apply for the reasons given hereinabove. Equally, it is unnecessary to advert to the arguments of the learned counsel for the Appellants based on Section 11 of the Commercial Courts Act. 28. The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison dêtre for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs. one crore or more, if the Appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs. 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act, vis-a-vis the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration. | 0[ds]Given the judgment of this Court in Fuerst Day Lawson (supra), which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 50 is a provision contained in acode on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in paragraph 89 of Fuerst Day Lawson (supra) that appeals which are not mentioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provisionarbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitrationmay be the ultimate reason for including Section 37 of the Arbitration Act in the proviso to Section 13(1), the ratio decidendi of the judgment in Fuerst Day Lawson (supra) would apply, and this being so, appeals filed under Section 50 of the Arbitration Act would have to follow the drill of Section 50 alone.This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left "to the Court authorized by law to hear appeals from such orders". Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal.In fact, in Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd. and Ors., (2008) 4 SCC 91 , this Court adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a) and 10F of the Companies Act, 1956, to hold that once an appeal is provided for in Section 50, the Court authorized by law to hear such appeals would then be found in Sections 10(1) (a) and 10F of the Companies Act. The present case is a parallel instance of Section 50 of the Arbitration Act providing for an appeal, and Section 13(1) of the Commercial Courts Act providing the forum for such appeal. Only, in the present case, as no appeal lies under Section 50 of the Arbitration Act, no forum can be provided for.What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie.In this view of the case, it is unnecessary to advert to Shri Giris arguments based on Section 21 of the Commercial Courts Act. Section 21 would only apply if Section 13(1) were to apply in the first place, which, as has been found, cannot be held to apply for the reasons given hereinabove. Equally, it is unnecessary to advert to the arguments of the learned counsel for the Appellants based on Section 11 of the Commercial Courts Act.The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison dêtre for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs. one crore or more, if the Appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act.such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs. 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act.construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act,the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration. | 0 | 7,990 | 1,050 | ### 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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laying down the forum which will hear and decide such an appeal. 24. In fact, in Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd. and Ors., (2008) 4 SCC 91 , this Court adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a) and 10F of the Companies Act, 1956, to hold that once an appeal is provided for in Section 50, the Court authorized by law to hear such appeals would then be found in Sections 10(1) (a) and 10F of the Companies Act. The present case is a parallel instance of Section 50 of the Arbitration Act providing for an appeal, and Section 13(1) of the Commercial Courts Act providing the forum for such appeal. Only, in the present case, as no appeal lies under Section 50 of the Arbitration Act, no forum can be provided for. 25. A recent judgment of this Court in Arun Dev Upadhyaya v. Integrated Sales Service Ltd., 2017(1) R.C.R.(Civil) 633 : 2017(1) Recent Apex Judgments (R.A.J.) 172 : (2016) 9 SCC 524 at 537 was adverted to by counsel for both sides. On facts, in this case, the Single Judge had refused to enforce a foreign award in favour of the appellants. The Respondents, in that case, claimed that an appeal from the Single Judge was not maintainable in view of the abolition of the letters patent appeal by a Maharashtra Act of 1986. This Court, following Fuerst Day Lawson (supra), repelled the aforesaid contention in the following terms:"25. The aforesaid provision clearly lays down that a forum is created i.e. Commercial Appellate Division. Section 50(1)(b) of the 1996 Act provides for an appeal. Section 50(1)(b) has not been amended by the Act that has come into force on 23-10-2015. Thus, an appeal under Section 50(1)(b) of the 1996 Act before the Division Bench is maintainable. 26. Thus analysed, we find that the impugned judgment [Integrated Sales Services Ltd. v. DMC Management Consultants Ltd., 2016 SCC OnLine Bom 4445] of the learned Single Judge under Section 50(1)(b) of the 1996 Act is passed in the Original Side of the High Court. Be that as it may, under Section 13 of the Act, the Single Judge has taken the decision. Section 13 bars an appeal under the Letters Patent unless an appeal is provided under the 1996 Act. Such an appeal is provided under Section 5 of the Act. The letters patent appeal could not have been invoked if Section 50 of the 1996 Act would not have provided for an appeal. But it does provide for an appeal. A conspectus reading of Sections 5 and 13 of the Act and Section 50 of the 1996 Act which has remained unamended leads to the irresistible conclusion that a letters patent appeal is maintainable before the Division Bench. It has to be treated as an appeal under Section 50(1)(b) of the 1996 Act and has to be adjudicated within the said parameters."26. What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie. 27. In this view of the case, it is unnecessary to advert to Shri Giris arguments based on Section 21 of the Commercial Courts Act. Section 21 would only apply if Section 13(1) were to apply in the first place, which, as has been found, cannot be held to apply for the reasons given hereinabove. Equally, it is unnecessary to advert to the arguments of the learned counsel for the Appellants based on Section 11 of the Commercial Courts Act. 28. The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison dêtre for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs. one crore or more, if the Appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs. 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act, vis-a-vis the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration.
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Given the judgment of this Court in Fuerst Day Lawson (supra), which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 50 is a provision contained in acode on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in paragraph 89 of Fuerst Day Lawson (supra) that appeals which are not mentioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provisionarbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitrationmay be the ultimate reason for including Section 37 of the Arbitration Act in the proviso to Section 13(1), the ratio decidendi of the judgment in Fuerst Day Lawson (supra) would apply, and this being so, appeals filed under Section 50 of the Arbitration Act would have to follow the drill of Section 50 alone.This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left "to the Court authorized by law to hear appeals from such orders". Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal.In fact, in Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd. and Ors., (2008) 4 SCC 91 , this Court adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a) and 10F of the Companies Act, 1956, to hold that once an appeal is provided for in Section 50, the Court authorized by law to hear such appeals would then be found in Sections 10(1) (a) and 10F of the Companies Act. The present case is a parallel instance of Section 50 of the Arbitration Act providing for an appeal, and Section 13(1) of the Commercial Courts Act providing the forum for such appeal. Only, in the present case, as no appeal lies under Section 50 of the Arbitration Act, no forum can be provided for.What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie.In this view of the case, it is unnecessary to advert to Shri Giris arguments based on Section 21 of the Commercial Courts Act. Section 21 would only apply if Section 13(1) were to apply in the first place, which, as has been found, cannot be held to apply for the reasons given hereinabove. Equally, it is unnecessary to advert to the arguments of the learned counsel for the Appellants based on Section 11 of the Commercial Courts Act.The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison dêtre for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs. one crore or more, if the Appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act.such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs. 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act.construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act,the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration.
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Hindustan Steelworks Constrn Vs. State Of Kerala | Welfare Funds Act which has been enacted to protect the interest of the labourers.Such beneficial object under the Act should not be allowed to be frustrated by expanding the meaning of instrumentality or agency of the Central Government. Mr. Nariman has further submitted that even if on account of any ambiguity two interpretations are possible, the one which will go to the benefit of labourers must be accepted so that the purpose of the Act is not frustrated. Mr. Nariman has also submitted that the appellant is a public undertaking. Referring to Clause (C) of Section2 of the Welfare Funds Act, Mr. Nariman has submitted that the expression "Construction Work" undertaken by the Government of India or any of its establishments or institutions is very significant. Mr. Nariman has also submitted that clause (e) of Section2 of the Welfare Funds Act defines "Contractor" and according to the definition under clause (e) of Section 2, contractor means any person registered as a contractor for carrying out construction work for consideration for a government company for any State Corporation or Society made by the Government of Kerala and includes Kerala State Government Corporation. Mr. Nariman has submitted that the legislature has intended to include government company as a contractor in Clause (e) and if the legislature had intended to exclude government company or public undertaking for the purpose of Section 2(e), there would have been specific exclusion of such government company but such exclusion has deliberately not been made in clause 2(e). Therefore, the appellant company cannot claim exemption from the purview of the Welfare Funds Act. 18. Mr. Sreekumar, learned counsel appearing for Respondent No. 3, namely, the Construction Workers Welfare Board, has also disputed the contentions made by Mr. Gupta. Mr. Kumar has submitted that the appellant is a government company and claims that being a government company it should get exemption from the enforcement of the Welfare Funds Act. Mr. Kumar has submitted that the government company has been defined under Section617 of the Companies Act. The Government company means any company is which not less that fifty-one per cent of paid-up share capital is held by the Central Government or by any State Government or partly by the State Government or Governments and includes a company which is a subsidiary of the Government Company. Hence, only with 51% of paid up share capital belonging to the Central Government or to the State Government or to both, a company will be held to be a government company even though such company cannot be held to be fully owned by the Government. By the definition of Government company under the Companies Act, the Government company need not necessarily be company fully owned by the Government and by that process an instrumentality of the Government. Hence, claim of exclusion from the purview of the Act simply on account of being a government company cannot be accepted. Mr. Kumar has also supported the contentions made by Mr. Nariman that the appellant company having undertaken the contractual work as a commercial venture should not be permitted to claim exemption from the purview of the Welfare Funds Act against the interest of the poor labourers for whose benefit the said Act has been enacted. He has, therefore, submitted that no interference is called for by this Court and the appeal should be dismissed. 19. After giving our careful consideration to the facts of the case and the respective contentions made by the learned counsel for the parties, it appears to us that the appellant company cannot be held to be a department of the Government. There may be deep and pervasive control of the Government over the appellant company and the appellant company, on such account may be an instrumentality or agency of the Central Government and as such a State within the meaning of Article 12 of the Constitution. Even though the appellant company is an agency or instrumentality of the Central Government, it cannot be held to be a department or establishment of the Government in all cases. Such instrumentality or agency has been held to be a third arm of the Government in Ajay Hasias case (supra) but it should not be lost sight of that it was only in the context of enforcement of fundamental rights against the action of the Government and its instrumentalities or agencies it was held that such agencies were the third arm of the Government and they cannot avoid Constitutional obligation. There is no question of enforcing any fundamental right in the instant case. On the contrary, the question of protecting the welfare of the employees vis-a-vis the instrumentality or agency of the Central Government under the Welfare Funds Act is to be kept in mind for the purpose of deciding the rival contentions of the parties.If Section2(c) and (e) of the Welfare Funds Act are taken into consideration, it will be quite apparent that the legislature has not intended to exclude the Government company or the statutory Corporations from the purview of the Welfare Funds Act. The decision in C. V. Ramans case (supra), in our view, is not an authority for the proposition that an instrumentality or agency of the Government is essentially a Government department for all purposes and such instrumentality or agency will enjoy the same privilege and protection which any Government or its establishment or department enjoys in relation to a statue. The establishment of a Government only connotes in its plain meaning, an establishment directly run by the Government and not through the agency or instrumentality of the Government. The Welfare Funds Act is essentially an Act to protect the interest of and Welfare of the labourers. Unless expressly the instrumentality or agency of the Government is kept outside the purview of the said Act, it would not be proper to interpret the said Act in a wide amplitude by removing the corporate veil so as to exclude such instrumentality or agency from the purview of the said Act. | 0[ds]19. After giving our careful consideration to the facts of the case and the respective contentions made by the learned counsel for the parties, it appears to us that the appellant company cannot be held to be a department of the Government. There may be deep and pervasive control of the Government over the appellant company and the appellant company, on such account may be an instrumentality or agency of the Central Government and as such a State within the meaning of Article 12 of the Constitution. Even though the appellant company is an agency or instrumentality of the Central Government, it cannot be held to be a department or establishment of the Government in all cases. Such instrumentality or agency has been held to be a third arm of the Government in Ajay Hasias case (supra) but it should not be lost sight of that it was only in the context of enforcement of fundamental rights against the action of the Government and its instrumentalities or agencies it was held that such agencies were the third arm of the Government and they cannot avoid Constitutional obligation. There is no question of enforcing any fundamental right in the instant case. On the contrary, the question of protecting the welfare of the employees vis-a-vis the instrumentality or agency of the Central Government under the Welfare Funds Act is to be kept in mind for the purpose of deciding the rival contentions of the parties.If Section2(c) and (e) of the Welfare Funds Act are taken into consideration, it will be quite apparent that the legislature has not intended to exclude the Government company or the statutory Corporations from the purview of the Welfare Funds Act. The decision in C. V. Ramans case (supra), in our view, is not an authority for the proposition that an instrumentality or agency of the Government is essentially a Government department for all purposes and such instrumentality or agency will enjoy the same privilege and protection which any Government or its establishment or department enjoys in relation to a statue. The establishment of a Government only connotes in its plain meaning, an establishment directly run by the Government and not through the agency or instrumentality of the Government. The Welfare Funds Act is essentially an Act to protect the interest of and Welfare of the labourers. Unless expressly the instrumentality or agency of the Government is kept outside the purview of the said Act, it would not be proper to interpret the said Act in a wide amplitude by removing the corporate veil so as to exclude such instrumentality or agency from the purview of the said Act. | 0 | 4,135 | 477 | ### 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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Welfare Funds Act which has been enacted to protect the interest of the labourers.Such beneficial object under the Act should not be allowed to be frustrated by expanding the meaning of instrumentality or agency of the Central Government. Mr. Nariman has further submitted that even if on account of any ambiguity two interpretations are possible, the one which will go to the benefit of labourers must be accepted so that the purpose of the Act is not frustrated. Mr. Nariman has also submitted that the appellant is a public undertaking. Referring to Clause (C) of Section2 of the Welfare Funds Act, Mr. Nariman has submitted that the expression "Construction Work" undertaken by the Government of India or any of its establishments or institutions is very significant. Mr. Nariman has also submitted that clause (e) of Section2 of the Welfare Funds Act defines "Contractor" and according to the definition under clause (e) of Section 2, contractor means any person registered as a contractor for carrying out construction work for consideration for a government company for any State Corporation or Society made by the Government of Kerala and includes Kerala State Government Corporation. Mr. Nariman has submitted that the legislature has intended to include government company as a contractor in Clause (e) and if the legislature had intended to exclude government company or public undertaking for the purpose of Section 2(e), there would have been specific exclusion of such government company but such exclusion has deliberately not been made in clause 2(e). Therefore, the appellant company cannot claim exemption from the purview of the Welfare Funds Act. 18. Mr. Sreekumar, learned counsel appearing for Respondent No. 3, namely, the Construction Workers Welfare Board, has also disputed the contentions made by Mr. Gupta. Mr. Kumar has submitted that the appellant is a government company and claims that being a government company it should get exemption from the enforcement of the Welfare Funds Act. Mr. Kumar has submitted that the government company has been defined under Section617 of the Companies Act. The Government company means any company is which not less that fifty-one per cent of paid-up share capital is held by the Central Government or by any State Government or partly by the State Government or Governments and includes a company which is a subsidiary of the Government Company. Hence, only with 51% of paid up share capital belonging to the Central Government or to the State Government or to both, a company will be held to be a government company even though such company cannot be held to be fully owned by the Government. By the definition of Government company under the Companies Act, the Government company need not necessarily be company fully owned by the Government and by that process an instrumentality of the Government. Hence, claim of exclusion from the purview of the Act simply on account of being a government company cannot be accepted. Mr. Kumar has also supported the contentions made by Mr. Nariman that the appellant company having undertaken the contractual work as a commercial venture should not be permitted to claim exemption from the purview of the Welfare Funds Act against the interest of the poor labourers for whose benefit the said Act has been enacted. He has, therefore, submitted that no interference is called for by this Court and the appeal should be dismissed. 19. After giving our careful consideration to the facts of the case and the respective contentions made by the learned counsel for the parties, it appears to us that the appellant company cannot be held to be a department of the Government. There may be deep and pervasive control of the Government over the appellant company and the appellant company, on such account may be an instrumentality or agency of the Central Government and as such a State within the meaning of Article 12 of the Constitution. Even though the appellant company is an agency or instrumentality of the Central Government, it cannot be held to be a department or establishment of the Government in all cases. Such instrumentality or agency has been held to be a third arm of the Government in Ajay Hasias case (supra) but it should not be lost sight of that it was only in the context of enforcement of fundamental rights against the action of the Government and its instrumentalities or agencies it was held that such agencies were the third arm of the Government and they cannot avoid Constitutional obligation. There is no question of enforcing any fundamental right in the instant case. On the contrary, the question of protecting the welfare of the employees vis-a-vis the instrumentality or agency of the Central Government under the Welfare Funds Act is to be kept in mind for the purpose of deciding the rival contentions of the parties.If Section2(c) and (e) of the Welfare Funds Act are taken into consideration, it will be quite apparent that the legislature has not intended to exclude the Government company or the statutory Corporations from the purview of the Welfare Funds Act. The decision in C. V. Ramans case (supra), in our view, is not an authority for the proposition that an instrumentality or agency of the Government is essentially a Government department for all purposes and such instrumentality or agency will enjoy the same privilege and protection which any Government or its establishment or department enjoys in relation to a statue. The establishment of a Government only connotes in its plain meaning, an establishment directly run by the Government and not through the agency or instrumentality of the Government. The Welfare Funds Act is essentially an Act to protect the interest of and Welfare of the labourers. Unless expressly the instrumentality or agency of the Government is kept outside the purview of the said Act, it would not be proper to interpret the said Act in a wide amplitude by removing the corporate veil so as to exclude such instrumentality or agency from the purview of the said Act.
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### Explanation:
19. After giving our careful consideration to the facts of the case and the respective contentions made by the learned counsel for the parties, it appears to us that the appellant company cannot be held to be a department of the Government. There may be deep and pervasive control of the Government over the appellant company and the appellant company, on such account may be an instrumentality or agency of the Central Government and as such a State within the meaning of Article 12 of the Constitution. Even though the appellant company is an agency or instrumentality of the Central Government, it cannot be held to be a department or establishment of the Government in all cases. Such instrumentality or agency has been held to be a third arm of the Government in Ajay Hasias case (supra) but it should not be lost sight of that it was only in the context of enforcement of fundamental rights against the action of the Government and its instrumentalities or agencies it was held that such agencies were the third arm of the Government and they cannot avoid Constitutional obligation. There is no question of enforcing any fundamental right in the instant case. On the contrary, the question of protecting the welfare of the employees vis-a-vis the instrumentality or agency of the Central Government under the Welfare Funds Act is to be kept in mind for the purpose of deciding the rival contentions of the parties.If Section2(c) and (e) of the Welfare Funds Act are taken into consideration, it will be quite apparent that the legislature has not intended to exclude the Government company or the statutory Corporations from the purview of the Welfare Funds Act. The decision in C. V. Ramans case (supra), in our view, is not an authority for the proposition that an instrumentality or agency of the Government is essentially a Government department for all purposes and such instrumentality or agency will enjoy the same privilege and protection which any Government or its establishment or department enjoys in relation to a statue. The establishment of a Government only connotes in its plain meaning, an establishment directly run by the Government and not through the agency or instrumentality of the Government. The Welfare Funds Act is essentially an Act to protect the interest of and Welfare of the labourers. Unless expressly the instrumentality or agency of the Government is kept outside the purview of the said Act, it would not be proper to interpret the said Act in a wide amplitude by removing the corporate veil so as to exclude such instrumentality or agency from the purview of the said Act.
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Saregama India Limited Vs. Next Radio Limited & Ors | month and even inspection of records is furnished to copyright owners; and (vii) Whereas Section 31D provides for only the duration and territorial coverage of the intended broadcast, the notice which has been prescribed by Rule 29(4) has gone far beyond the statutory ambit of Section 31D and is ultra vires for that reason. 19. While counsel appearing on behalf of the contesting parties have addressed submissions on merits, we would desist from expressing any opinion on the constitutional challenge which is pending consideration before the High Court of Judicature at Madras where, as noted earlier, the writ petitions are slated for final disposal on 4 October 2021. 20. At this stage, the issue is whether the interim order of the High Court can be sustained. Essentially, as the narration in the earlier part of this judgment would indicate, the High Court has substituted the provisions of Rule 29(4) with a regime of its own, which is made applicable to the broadcasters and the petitioners before it. A Constitution Bench of this Court in In Re: Expeditious Trial of Cases Under Section 138 of NI Act 1881(Suo Motu Writ Petition (Crl.) No. 2 of 2020, 16 April 2021, available at https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr2021.pdf) has emphasized that the judiciary cannot transgress into the domain of policy making by re-writing a statute, however strong the temptations maybe. This Court observed: 20. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. The Judges duty is to interpret and apply the law, not to change it to meet the Judges idea of what justice requires. The court cannot add words to a statute or read words into it which are not there. It is a settled principle of law that when the words of a statute are clear and unambiguous, it is not permissible for the court to read words into the statute. A Constitution Bench of this Court in Padma Sundara Rao v State of Tamil Nadu (2002) 3 SCC 533 has observed: 12. …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 the statute is determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. ….. 14. 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 necessary. 21. The court is entrusted by the Constitution of the power of judicial review. In the discharge of its mandate, the court may evaluate the validity of a legislation or rules made under it. A statute may be invalidated if is ultra vires constitutional guarantees or transgresses the legislative domain entrusted to the enacting legislature. Delegated legislation can, if it results in a constitutional infraction or is contrary to the ambit of the enacting statute be invalidated. However, the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language. Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft. That precisely is what the Division Bench of the High Court has done by its interim order. Section 31D(2) speaks of the necessity of giving prior notice, in the manner as may be prescribed, of the intention to broadcast the work stating the duration and the territorial coverage of the broadcast, together with the payment of royalties in the manner and at the rates fixed by the Appellate Board. While the High Court has held the broadcasters down to the requirement of prior notice, it has modified the operation of Rule 29 by stipulating that the particulars which are to be furnished in the notice may be furnished within a period of fifteen days after the broadcast. The interim order converts the second proviso into a routine procedure instead of an exception (as the High Court has described its direction). This exercise by the High Court amounts to re-writing. Such an exercise of judicial redrafting of legislation or delegated legislation cannot be carried out. The High Court has done so at the interlocutory stage. 22. We are, therefore, clearly of the view that an exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage. The difficulties which have been expressed before the High Court by the broadcasters have warranted an early listing of the matter and this Court has been assured by the copyright owners that they would file their counter affidavits immediately so as to facilitate the expeditious disposal of the proceedings. That having been assured, we are of the view that an exercise of judicial re-writing of a statutory rule is unwarranted in the exercise of the jurisdiction under Article 226 of the Constitution, particularly in interlocutory proceedings. The High Court was also of the view that the second proviso may be resorted to as a matter of routine, instead of as an exception and that the ex post facto reporting should be enlarged to a period of fifteen days (instead of a period of twenty four hours). Such an exercise was impermissible since it would substitute a statutory rule made in exercise of the power of delegated legislation with a new regime and provision which the High Court considers more practicable. | 1[ds]19. While counsel appearing on behalf of the contesting parties have addressed submissions on merits, we would desist from expressing any opinion on the constitutional challenge which is pending consideration before the High Court of Judicature at Madras where, as noted earlier, the writ petitions are slated for final disposal on 4 October 2021.A Constitution Bench of this Court in In Re: Expeditious Trial of Cases Under Section 138 of NI Act 1881(Suo Motu Writ Petition (Crl.) No. 2 of 2020, 16 April 2021, available at https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr2021.pdf) has emphasized that the judiciary cannot transgress into the domain of policy making by re-writing a statute, however strong the temptations maybe. This Court observed:20. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. The Judges duty is to interpret and apply the law, not to change it to meet the Judges idea of what justice requires. The court cannot add words to a statute or read words into it which are not there.It is a settled principle of law that when the words of a statute are clear and unambiguous, it is not permissible for the court to read words into the statute. A Constitution Bench of this Court in Padma Sundara Rao v State of Tamil Nadu (2002) 3 SCC 533 has observed:12. …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 the statute is determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said.14. 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 necessary.22. We are, therefore, clearly of the view that an exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage. The difficulties which have been expressed before the High Court by the broadcasters have warranted an early listing of the matter and this Court has been assured by the copyright owners that they would file their counter affidavits immediately so as to facilitate the expeditious disposal of the proceedings. That having been assured, we are of the view that an exercise of judicial re-writing of a statutory rule is unwarranted in the exercise of the jurisdiction under Article 226 of the Constitution, particularly in interlocutory proceedings. The High Court was also of the view that the second proviso may be resorted to as a matter of routine, instead of as an exception and that the ex post facto reporting should be enlarged to a period of fifteen days (instead of a period of twenty four hours). Such an exercise was impermissible since it would substitute a statutory rule made in exercise of the power of delegated legislation with a new regime and provision which the High Court considers more practicable. | 1 | 4,533 | 633 | ### 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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month and even inspection of records is furnished to copyright owners; and (vii) Whereas Section 31D provides for only the duration and territorial coverage of the intended broadcast, the notice which has been prescribed by Rule 29(4) has gone far beyond the statutory ambit of Section 31D and is ultra vires for that reason. 19. While counsel appearing on behalf of the contesting parties have addressed submissions on merits, we would desist from expressing any opinion on the constitutional challenge which is pending consideration before the High Court of Judicature at Madras where, as noted earlier, the writ petitions are slated for final disposal on 4 October 2021. 20. At this stage, the issue is whether the interim order of the High Court can be sustained. Essentially, as the narration in the earlier part of this judgment would indicate, the High Court has substituted the provisions of Rule 29(4) with a regime of its own, which is made applicable to the broadcasters and the petitioners before it. A Constitution Bench of this Court in In Re: Expeditious Trial of Cases Under Section 138 of NI Act 1881(Suo Motu Writ Petition (Crl.) No. 2 of 2020, 16 April 2021, available at https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr2021.pdf) has emphasized that the judiciary cannot transgress into the domain of policy making by re-writing a statute, however strong the temptations maybe. This Court observed: 20. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. The Judges duty is to interpret and apply the law, not to change it to meet the Judges idea of what justice requires. The court cannot add words to a statute or read words into it which are not there. It is a settled principle of law that when the words of a statute are clear and unambiguous, it is not permissible for the court to read words into the statute. A Constitution Bench of this Court in Padma Sundara Rao v State of Tamil Nadu (2002) 3 SCC 533 has observed: 12. …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 the statute is determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. ….. 14. 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 necessary. 21. The court is entrusted by the Constitution of the power of judicial review. In the discharge of its mandate, the court may evaluate the validity of a legislation or rules made under it. A statute may be invalidated if is ultra vires constitutional guarantees or transgresses the legislative domain entrusted to the enacting legislature. Delegated legislation can, if it results in a constitutional infraction or is contrary to the ambit of the enacting statute be invalidated. However, the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language. Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft. That precisely is what the Division Bench of the High Court has done by its interim order. Section 31D(2) speaks of the necessity of giving prior notice, in the manner as may be prescribed, of the intention to broadcast the work stating the duration and the territorial coverage of the broadcast, together with the payment of royalties in the manner and at the rates fixed by the Appellate Board. While the High Court has held the broadcasters down to the requirement of prior notice, it has modified the operation of Rule 29 by stipulating that the particulars which are to be furnished in the notice may be furnished within a period of fifteen days after the broadcast. The interim order converts the second proviso into a routine procedure instead of an exception (as the High Court has described its direction). This exercise by the High Court amounts to re-writing. Such an exercise of judicial redrafting of legislation or delegated legislation cannot be carried out. The High Court has done so at the interlocutory stage. 22. We are, therefore, clearly of the view that an exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage. The difficulties which have been expressed before the High Court by the broadcasters have warranted an early listing of the matter and this Court has been assured by the copyright owners that they would file their counter affidavits immediately so as to facilitate the expeditious disposal of the proceedings. That having been assured, we are of the view that an exercise of judicial re-writing of a statutory rule is unwarranted in the exercise of the jurisdiction under Article 226 of the Constitution, particularly in interlocutory proceedings. The High Court was also of the view that the second proviso may be resorted to as a matter of routine, instead of as an exception and that the ex post facto reporting should be enlarged to a period of fifteen days (instead of a period of twenty four hours). Such an exercise was impermissible since it would substitute a statutory rule made in exercise of the power of delegated legislation with a new regime and provision which the High Court considers more practicable.
### Response:
1
### Explanation:
19. While counsel appearing on behalf of the contesting parties have addressed submissions on merits, we would desist from expressing any opinion on the constitutional challenge which is pending consideration before the High Court of Judicature at Madras where, as noted earlier, the writ petitions are slated for final disposal on 4 October 2021.A Constitution Bench of this Court in In Re: Expeditious Trial of Cases Under Section 138 of NI Act 1881(Suo Motu Writ Petition (Crl.) No. 2 of 2020, 16 April 2021, available at https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr2021.pdf) has emphasized that the judiciary cannot transgress into the domain of policy making by re-writing a statute, however strong the temptations maybe. This Court observed:20. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. The Judges duty is to interpret and apply the law, not to change it to meet the Judges idea of what justice requires. The court cannot add words to a statute or read words into it which are not there.It is a settled principle of law that when the words of a statute are clear and unambiguous, it is not permissible for the court to read words into the statute. A Constitution Bench of this Court in Padma Sundara Rao v State of Tamil Nadu (2002) 3 SCC 533 has observed:12. …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 the statute is determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said.14. 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 necessary.22. We are, therefore, clearly of the view that an exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage. The difficulties which have been expressed before the High Court by the broadcasters have warranted an early listing of the matter and this Court has been assured by the copyright owners that they would file their counter affidavits immediately so as to facilitate the expeditious disposal of the proceedings. That having been assured, we are of the view that an exercise of judicial re-writing of a statutory rule is unwarranted in the exercise of the jurisdiction under Article 226 of the Constitution, particularly in interlocutory proceedings. The High Court was also of the view that the second proviso may be resorted to as a matter of routine, instead of as an exception and that the ex post facto reporting should be enlarged to a period of fifteen days (instead of a period of twenty four hours). Such an exercise was impermissible since it would substitute a statutory rule made in exercise of the power of delegated legislation with a new regime and provision which the High Court considers more practicable.
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The Bhopal Sugar Industries Ltd Vs. The Income-Tax Officer, Bhopal | enough, the respondent misread the direction of the Tribunal and failed to carry it out. He proceeded on a basis which was in contravention of the direction of the Tribunal. 7. In these circumstances, the appellant company moved the Judicial Commissioner. Bhopal, then exercising the powers of a High Court for that area, for the issue of a writ to compel the respondent to carry out the directions given by the Tribunal. The learned Judicial Commissioner found in express terms that the respondent had acted arbitrarily and in clear violation of the directions given by the Tribunal; in other words, he found that the respondent had disregarded the order of the Tribunal, failed to carry out his duty according to law and had acted illegally. Having found this, the learned Judicial Commissioner went on to examine the correctness or otherwise of the order of the Tribunal and found that the Tribunal went wrong in not treating the centres as "markets" within the meaning of R. 23 of the Income-tax Rules. He then came to the conclusion that in view of the error committed by the Tribunal, there was no manifest injustice as a result of the order of the respondent; accordingly, he dismissed the application for the issue of a writ made by the appellant company. 8. We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of Courts. If a sub-ordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal. 9. It must be remembered that the order of the Tribunal dated April 22, 1954, was not under challenge before the Judicial Commissioner. That order had became final and binding on the parties, and the respondent could not question it in any way. As a matter of fact the Commissioner of Income tax had made an application for a reference, which application was subsequently withdrawn.The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that in the circumstances of this case it was open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. As we have said earlier such a view is destructive of one of the basic principles of the administration of justice. 10. In fairness of him it must be stated that learned Counsel for the respondent did not attempt to support the judgment of the Judicial Commissioner on the ground that no manifest injustice resulted from the refusal of the respondent to carry out the directions of the superior tribunal. He conceded that even if the order of the Tribunal was wrong a subordinate and inferior tribunal could not disregard it; he readily recognised the sanctity and importance of the basic principle that a subordinate tribunal must carry out the directions of a superior tribunal. He argued, however, that the order of the Tribunal was unintelligible and the respondent did his best to understand it according to his light. This argument advanced on behalf of the respondent appears to us to be some what disingenuous. We find no difficulty in understanding the order of the Tribunal; it directed the respondent "to ascertain the average transport charges per maund from the centres to the factory and add to it the rate of Rs. 1-4-6 per maund of a sugarcane". The direction is clear and unambiguous. The respondent instead of ascertaining the average transport charges per maund from the centres to the factory, referred to the transport charges from the farms to the factory and on that footing disregarded the directions of the Tribunal; for the respondent to say thereafter that the order of the Tribunal was not intelligible betrays a regrettable lack of candour. We must, therefore, reject the argument of learned Counsel for the respondent. 11. The learned Judicial Commissioner referred to three decisions in support of the proposition that a direction or order in the nature of a writ of mandamus cannot be claimed as of right, nor need such a writ issue for every omission or irregularity; Bimal Chand v. Chairman, Jiagunj Azimgunj Municipality, AIR 1954 Cal 285 , Gram Panchayat, Vidul of Vidul v. Multi Purpose Co-operative Society of Vidul. AIR 1954 Nag 82, and Senairam Doongarmall v. Commr. of Income Tax, Assam (S) AIR 1955 Assam 201. In the view which we have expressed, namely, that by the impugned order the respondent failed to carry out a legal duty imposed on him and such failure was destructive of a basic principle of justice, a writ of mandamus should issue ex debito justitiae to compel the respondent to carry out the directions given to him by the Income-tax Appellate Tribunal, Bombay, and it is unnecessary to consider the decisions referred to above except merely to state that in none of them arose any question of condoning a refusal by an inferior tribunal to carry out the directions given to that tribunal by a superior tribunal in the undoubted exercise of its appellate powers, on the ground that the order of the superior tribunal was wrong. | 1[ds]8. We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of Courts. If asubordinate tribunalrefuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal9. It must be remembered that the order of the Tribunal dated April 22, 1954, was not under challenge before the Judicial Commissioner. That order had became final and binding on the parties, and the respondent could not question it in any way. As a matter of fact the Commissioner of Income tax had made an application for a reference, which application was subsequently withdrawn.The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that in the circumstances of this case it was open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. As we have said earlier such a view is destructive of one of the basic principles of the administration of justice10. In fairness of him it must be stated that learned Counsel for the respondent did not attempt to support the judgment of the Judicial Commissioner on the ground that no manifest injustice resulted from the refusal of the respondent to carry out the directions of the superior tribunal. He conceded that even if the order of the Tribunal was wrong a subordinate and inferior tribunal could not disregard it; he readily recognised the sanctity and importance of the basic principle that asubordinate tribunalmust carry out the directions of a superior tribunal. He argued, however, that the order of the Tribunal was unintelligible and the respondent did his best to understand it according to his light. This argument advanced on behalf of the respondent appears to us to be some what disingenuous. We find no difficulty in understanding the order of the Tribunal; it directed the respondent "to ascertain the average transport charges per maund from the centres to the factory and add to it the rate of Rs.6 per maund of a sugarcane". The direction is clear and unambiguous. The respondent instead of ascertaining the average transport charges per maund from the centres to the factory, referred to the transport charges from the farms to the factory and on that footing disregarded the directions of the Tribunal; for the respondent to say thereafter that the order of the Tribunal was not intelligible betrays a regrettable lack of candour. We must, therefore, reject the argument of learned Counsel for the respondent11. The learned Judicial Commissioner referred to three decisions in support of the proposition that a direction or order in the nature of a writ of mandamus cannot be claimed as of right, nor need such a writ issue for every omission or irregularity; Bimal Chand v. Chairman, Jiagunj Azimgunj Municipality, AIR 1954 Cal 285 , Gram Panchayat, Vidul of Vidul v. Multi Purposee Society of Vidul. AIR 1954 Nag 82, and Senairam Doongarmall v. Commr. of Income Tax, Assam (S) AIR 1955 Assam 201. In the view which we have expressed, namely, that by the impugned order the respondent failed to carry out a legal duty imposed on him and such failure was destructive of a basic principle of justice, a writ of mandamus should issue ex debito justitiae to compel the respondent to carry out the directions given to him by thex Appellate Tribunal, Bombay, and it is unnecessary to consider the decisions referred to above except merely to state that in none of them arose any question of condoning a refusal by an inferior tribunal to carry out the directions given to that tribunal by a superior tribunal in the undoubted exercise of its appellate powers, on the ground that the order of the superior tribunal was wrong. | 1 | 2,471 | 835 | ### 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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enough, the respondent misread the direction of the Tribunal and failed to carry it out. He proceeded on a basis which was in contravention of the direction of the Tribunal. 7. In these circumstances, the appellant company moved the Judicial Commissioner. Bhopal, then exercising the powers of a High Court for that area, for the issue of a writ to compel the respondent to carry out the directions given by the Tribunal. The learned Judicial Commissioner found in express terms that the respondent had acted arbitrarily and in clear violation of the directions given by the Tribunal; in other words, he found that the respondent had disregarded the order of the Tribunal, failed to carry out his duty according to law and had acted illegally. Having found this, the learned Judicial Commissioner went on to examine the correctness or otherwise of the order of the Tribunal and found that the Tribunal went wrong in not treating the centres as "markets" within the meaning of R. 23 of the Income-tax Rules. He then came to the conclusion that in view of the error committed by the Tribunal, there was no manifest injustice as a result of the order of the respondent; accordingly, he dismissed the application for the issue of a writ made by the appellant company. 8. We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of Courts. If a sub-ordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal. 9. It must be remembered that the order of the Tribunal dated April 22, 1954, was not under challenge before the Judicial Commissioner. That order had became final and binding on the parties, and the respondent could not question it in any way. As a matter of fact the Commissioner of Income tax had made an application for a reference, which application was subsequently withdrawn.The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that in the circumstances of this case it was open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. As we have said earlier such a view is destructive of one of the basic principles of the administration of justice. 10. In fairness of him it must be stated that learned Counsel for the respondent did not attempt to support the judgment of the Judicial Commissioner on the ground that no manifest injustice resulted from the refusal of the respondent to carry out the directions of the superior tribunal. He conceded that even if the order of the Tribunal was wrong a subordinate and inferior tribunal could not disregard it; he readily recognised the sanctity and importance of the basic principle that a subordinate tribunal must carry out the directions of a superior tribunal. He argued, however, that the order of the Tribunal was unintelligible and the respondent did his best to understand it according to his light. This argument advanced on behalf of the respondent appears to us to be some what disingenuous. We find no difficulty in understanding the order of the Tribunal; it directed the respondent "to ascertain the average transport charges per maund from the centres to the factory and add to it the rate of Rs. 1-4-6 per maund of a sugarcane". The direction is clear and unambiguous. The respondent instead of ascertaining the average transport charges per maund from the centres to the factory, referred to the transport charges from the farms to the factory and on that footing disregarded the directions of the Tribunal; for the respondent to say thereafter that the order of the Tribunal was not intelligible betrays a regrettable lack of candour. We must, therefore, reject the argument of learned Counsel for the respondent. 11. The learned Judicial Commissioner referred to three decisions in support of the proposition that a direction or order in the nature of a writ of mandamus cannot be claimed as of right, nor need such a writ issue for every omission or irregularity; Bimal Chand v. Chairman, Jiagunj Azimgunj Municipality, AIR 1954 Cal 285 , Gram Panchayat, Vidul of Vidul v. Multi Purpose Co-operative Society of Vidul. AIR 1954 Nag 82, and Senairam Doongarmall v. Commr. of Income Tax, Assam (S) AIR 1955 Assam 201. In the view which we have expressed, namely, that by the impugned order the respondent failed to carry out a legal duty imposed on him and such failure was destructive of a basic principle of justice, a writ of mandamus should issue ex debito justitiae to compel the respondent to carry out the directions given to him by the Income-tax Appellate Tribunal, Bombay, and it is unnecessary to consider the decisions referred to above except merely to state that in none of them arose any question of condoning a refusal by an inferior tribunal to carry out the directions given to that tribunal by a superior tribunal in the undoubted exercise of its appellate powers, on the ground that the order of the superior tribunal was wrong.
### Response:
1
### Explanation:
8. We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of Courts. If asubordinate tribunalrefuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal9. It must be remembered that the order of the Tribunal dated April 22, 1954, was not under challenge before the Judicial Commissioner. That order had became final and binding on the parties, and the respondent could not question it in any way. As a matter of fact the Commissioner of Income tax had made an application for a reference, which application was subsequently withdrawn.The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that in the circumstances of this case it was open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. As we have said earlier such a view is destructive of one of the basic principles of the administration of justice10. In fairness of him it must be stated that learned Counsel for the respondent did not attempt to support the judgment of the Judicial Commissioner on the ground that no manifest injustice resulted from the refusal of the respondent to carry out the directions of the superior tribunal. He conceded that even if the order of the Tribunal was wrong a subordinate and inferior tribunal could not disregard it; he readily recognised the sanctity and importance of the basic principle that asubordinate tribunalmust carry out the directions of a superior tribunal. He argued, however, that the order of the Tribunal was unintelligible and the respondent did his best to understand it according to his light. This argument advanced on behalf of the respondent appears to us to be some what disingenuous. We find no difficulty in understanding the order of the Tribunal; it directed the respondent "to ascertain the average transport charges per maund from the centres to the factory and add to it the rate of Rs.6 per maund of a sugarcane". The direction is clear and unambiguous. The respondent instead of ascertaining the average transport charges per maund from the centres to the factory, referred to the transport charges from the farms to the factory and on that footing disregarded the directions of the Tribunal; for the respondent to say thereafter that the order of the Tribunal was not intelligible betrays a regrettable lack of candour. We must, therefore, reject the argument of learned Counsel for the respondent11. The learned Judicial Commissioner referred to three decisions in support of the proposition that a direction or order in the nature of a writ of mandamus cannot be claimed as of right, nor need such a writ issue for every omission or irregularity; Bimal Chand v. Chairman, Jiagunj Azimgunj Municipality, AIR 1954 Cal 285 , Gram Panchayat, Vidul of Vidul v. Multi Purposee Society of Vidul. AIR 1954 Nag 82, and Senairam Doongarmall v. Commr. of Income Tax, Assam (S) AIR 1955 Assam 201. In the view which we have expressed, namely, that by the impugned order the respondent failed to carry out a legal duty imposed on him and such failure was destructive of a basic principle of justice, a writ of mandamus should issue ex debito justitiae to compel the respondent to carry out the directions given to him by thex Appellate Tribunal, Bombay, and it is unnecessary to consider the decisions referred to above except merely to state that in none of them arose any question of condoning a refusal by an inferior tribunal to carry out the directions given to that tribunal by a superior tribunal in the undoubted exercise of its appellate powers, on the ground that the order of the superior tribunal was wrong.
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Ramesh Vajabhai Rabari Vs. Pratiksha Real Estate Pvt. Ltd. & Others | is found to be in possession of the property for the last 30 years. It is no doubt true that the title and possession of VB Patel & Co. has been questioned by the petitioner as also the cancellation of the agreement of sale in his favour is further under challenge in the suit bearing Suit No. 1280/2007 which is pending trial in the High Court of Bombay. But mere pendency of the suit where the plaintiff/petitioner has failed to establish even his prima facie title as also actual physical possession on the suit land which was not proved, obviously could not establish as to how the plaintiff/petitioner in that event could be allowed to secure an order of injunction in his favour specially when he is yet to secure a decree of specific performance for the land in question and the agreement of sale in his favour itself had been cancelled on 2.4.2007 by the Defendant/Vendor. When the petitioner is yet to acquire the property in question by virtue of a decree of specific performance in order to develop it, he obviously has no semblance of title to the suit property and he is also not in possession of the property in question even as per his own case as he had accepted the agreement for the landed property on `as is where is basis which was not in occupation of even the Defendants/Vendors. Thus, the 3rd ingredient for grant of injunction which could be considered was the balance of convenience. But when the petitioner has not yet taken possession as per agreement nor any steps to develop the property for which he merely had agreement of sale which also was cancelled and had agreed to purchase the disputed property on `as is where is basis could not take possession so as to retain the property from VBP, he could not possibly claim injunction in his favour as he is still to acquire title to the property since he is yet to get a decree of specific performance. 11. It is further clear that the suit which the petitioner has filed against termination of his agreement, is yet to record a finding in favour of the petitioner that the termination of agreement was bad in the eye of law and the decree of specific performance which he has sought by way of relief in the suit is clearly an eventuality. In that view of the matter the respondent No.1 who is claiming the property in question through VB Patel & Co. at least is at an advantage to the extent that VB Patel & Co. has been able to prima facie establish that an agreement of sale had been executed in his favour by the erstwhile deceased owner Edmond DMello and possession also was delivered to him in pursuance thereof he also adduced evidence in support of his plea regarding his possession on the same for the last 30 years. 12. The petitioner in any case has neither established his prima facie title to the suit property as the agreement of sale stands cancelled and a decree of specific performance is yet to be passed in his favour, nor he is in possession of the property in spite of the development agreement in his favour who has not taken any steps to develop the property from 2005 to 2007 due to which the development agreement itself was terminated. The petitioner therefore cannot be conferred the benefit of an order of injunction in his favour in absence of any ingredient which can be held to be the determining factor for grant of an order of injunction. Consideration for awarding an order of injunction in favour of a party claiming it, is too well settled to be reiterated or discussed herein; suffice it to say that the three basic ingredients while considering an application for grant of injunction which are establishment of prima facie case, actual physical possession of the property in question and last but not the least balance of convenience and hardship are the three determining factors to claim an order of temporary injunction in the pending suit. The petitioner although failed to prove any of the three prime factors to claim injunction succeeded in obtaining an order of temporary injunction which the Division Bench of the High Court has reversed and rightly so as the petitioner obtained a development agreement from some of the successors of Edmond DMello which however was also terminated apart from the fact that the original owner Edmond DMello had already executed an agreement of sale in favour of VB Patel & Co. to whom the possession was also delivered and the respondent No.1/Pratiksha has obtained an agreement in its favour from VBP. 13. However, the decree of specific performance as already stated is yet to be passed in favour of the petitioner whereas the respondent No.1 is claiming through VBP in whose favour the erstwhile owner Edmond DMello had executed the agreement of sale in pursuance of which possession was also delivered 30 years ago. The petitioner having entered into an agreement of sale 30 years later from some of the co-sharers which agreement too was terminated on 2.4.2007 obviously cannot be granted an order of injunction restraining the respondent No.1 from claiming the property through VBP which prima facie not only has got interest in the property but also actual physical possession of the same. On the contrary, the petitioner as of now has neither any semblance of title nor has possession on the property nor prima facie case nor balance of convenience in his favour as he is yet to take possession and develop the property. 14. In view of these existing facts and circumstances of the matter, we are of the view that the learned single Judge was not justified in granting an order of injunction in favour of the petitioner and the same has rightly been reversed by the Division Bench of the High Court by assigning valid reasons. | 0[ds]12. The petitioner in any case has neither established his prima facie title to the suit property as the agreement of sale stands cancelled and a decree of specific performance is yet to be passed in his favour, nor he is in possession of the property in spite of the development agreement in his favour who has not taken any steps to develop the property from 2005 to 2007 due to which the development agreement itself was terminated. The petitioner therefore cannot be conferred the benefit of an order of injunction in his favour in absence of any ingredient which can be held to be the determining factor for grant of an order of injunction. Consideration for awarding an order of injunction in favour of a party claiming it, is too well settled to be reiterated or discussed herein; suffice it to say that the three basic ingredients while considering an application for grant of injunction which are establishment of prima facie case, actual physical possession of the property in question and last but not the least balance of convenience and hardship are the three determining factors to claim an order of temporary injunction in the pending suit. The petitioner although failed to prove any of the three prime factors to claim injunction succeeded in obtaining an order of temporary injunction which the Division Bench of the High Court has reversed and rightly so as the petitioner obtained a development agreement from some of the successors of Edmond DMello which however was also terminated apart from the fact that the original owner Edmond DMello had already executed an agreement of sale in favour of VB Patel & Co. to whom the possession was also delivered and the respondent No.1/Pratiksha has obtained an agreement in its favour from VBP13. However, the decree of specific performance as already stated is yet to be passed in favour of the petitioner whereas the respondent No.1 is claiming through VBP in whose favour the erstwhile owner Edmond DMello had executed the agreement of sale in pursuance of which possession was also delivered 30 years ago. The petitioner having entered into an agreement of sale 30 years later from some of thes which agreement too was terminated on 2.4.2007 obviously cannot be granted an order of injunction restraining the respondent No.1 from claiming the property through VBP which prima facie not only has got interest in the property but also actual physical possession of the same. On the contrary, the petitioner as of now has neither any semblance of title nor has possession on the property nor prima facie case nor balance of convenience in his favour as he is yet to take possession and develop the property14. In view of these existing facts and circumstances of the matter, we are of the view that the learned single Judge was not justified in granting an order of injunction in favour of the petitioner and the same has rightly been reversed by the Division Bench of the High Court by assigning valid reasons. | 0 | 2,999 | 528 | ### Instruction:
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is found to be in possession of the property for the last 30 years. It is no doubt true that the title and possession of VB Patel & Co. has been questioned by the petitioner as also the cancellation of the agreement of sale in his favour is further under challenge in the suit bearing Suit No. 1280/2007 which is pending trial in the High Court of Bombay. But mere pendency of the suit where the plaintiff/petitioner has failed to establish even his prima facie title as also actual physical possession on the suit land which was not proved, obviously could not establish as to how the plaintiff/petitioner in that event could be allowed to secure an order of injunction in his favour specially when he is yet to secure a decree of specific performance for the land in question and the agreement of sale in his favour itself had been cancelled on 2.4.2007 by the Defendant/Vendor. When the petitioner is yet to acquire the property in question by virtue of a decree of specific performance in order to develop it, he obviously has no semblance of title to the suit property and he is also not in possession of the property in question even as per his own case as he had accepted the agreement for the landed property on `as is where is basis which was not in occupation of even the Defendants/Vendors. Thus, the 3rd ingredient for grant of injunction which could be considered was the balance of convenience. But when the petitioner has not yet taken possession as per agreement nor any steps to develop the property for which he merely had agreement of sale which also was cancelled and had agreed to purchase the disputed property on `as is where is basis could not take possession so as to retain the property from VBP, he could not possibly claim injunction in his favour as he is still to acquire title to the property since he is yet to get a decree of specific performance. 11. It is further clear that the suit which the petitioner has filed against termination of his agreement, is yet to record a finding in favour of the petitioner that the termination of agreement was bad in the eye of law and the decree of specific performance which he has sought by way of relief in the suit is clearly an eventuality. In that view of the matter the respondent No.1 who is claiming the property in question through VB Patel & Co. at least is at an advantage to the extent that VB Patel & Co. has been able to prima facie establish that an agreement of sale had been executed in his favour by the erstwhile deceased owner Edmond DMello and possession also was delivered to him in pursuance thereof he also adduced evidence in support of his plea regarding his possession on the same for the last 30 years. 12. The petitioner in any case has neither established his prima facie title to the suit property as the agreement of sale stands cancelled and a decree of specific performance is yet to be passed in his favour, nor he is in possession of the property in spite of the development agreement in his favour who has not taken any steps to develop the property from 2005 to 2007 due to which the development agreement itself was terminated. The petitioner therefore cannot be conferred the benefit of an order of injunction in his favour in absence of any ingredient which can be held to be the determining factor for grant of an order of injunction. Consideration for awarding an order of injunction in favour of a party claiming it, is too well settled to be reiterated or discussed herein; suffice it to say that the three basic ingredients while considering an application for grant of injunction which are establishment of prima facie case, actual physical possession of the property in question and last but not the least balance of convenience and hardship are the three determining factors to claim an order of temporary injunction in the pending suit. The petitioner although failed to prove any of the three prime factors to claim injunction succeeded in obtaining an order of temporary injunction which the Division Bench of the High Court has reversed and rightly so as the petitioner obtained a development agreement from some of the successors of Edmond DMello which however was also terminated apart from the fact that the original owner Edmond DMello had already executed an agreement of sale in favour of VB Patel & Co. to whom the possession was also delivered and the respondent No.1/Pratiksha has obtained an agreement in its favour from VBP. 13. However, the decree of specific performance as already stated is yet to be passed in favour of the petitioner whereas the respondent No.1 is claiming through VBP in whose favour the erstwhile owner Edmond DMello had executed the agreement of sale in pursuance of which possession was also delivered 30 years ago. The petitioner having entered into an agreement of sale 30 years later from some of the co-sharers which agreement too was terminated on 2.4.2007 obviously cannot be granted an order of injunction restraining the respondent No.1 from claiming the property through VBP which prima facie not only has got interest in the property but also actual physical possession of the same. On the contrary, the petitioner as of now has neither any semblance of title nor has possession on the property nor prima facie case nor balance of convenience in his favour as he is yet to take possession and develop the property. 14. In view of these existing facts and circumstances of the matter, we are of the view that the learned single Judge was not justified in granting an order of injunction in favour of the petitioner and the same has rightly been reversed by the Division Bench of the High Court by assigning valid reasons.
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12. The petitioner in any case has neither established his prima facie title to the suit property as the agreement of sale stands cancelled and a decree of specific performance is yet to be passed in his favour, nor he is in possession of the property in spite of the development agreement in his favour who has not taken any steps to develop the property from 2005 to 2007 due to which the development agreement itself was terminated. The petitioner therefore cannot be conferred the benefit of an order of injunction in his favour in absence of any ingredient which can be held to be the determining factor for grant of an order of injunction. Consideration for awarding an order of injunction in favour of a party claiming it, is too well settled to be reiterated or discussed herein; suffice it to say that the three basic ingredients while considering an application for grant of injunction which are establishment of prima facie case, actual physical possession of the property in question and last but not the least balance of convenience and hardship are the three determining factors to claim an order of temporary injunction in the pending suit. The petitioner although failed to prove any of the three prime factors to claim injunction succeeded in obtaining an order of temporary injunction which the Division Bench of the High Court has reversed and rightly so as the petitioner obtained a development agreement from some of the successors of Edmond DMello which however was also terminated apart from the fact that the original owner Edmond DMello had already executed an agreement of sale in favour of VB Patel & Co. to whom the possession was also delivered and the respondent No.1/Pratiksha has obtained an agreement in its favour from VBP13. However, the decree of specific performance as already stated is yet to be passed in favour of the petitioner whereas the respondent No.1 is claiming through VBP in whose favour the erstwhile owner Edmond DMello had executed the agreement of sale in pursuance of which possession was also delivered 30 years ago. The petitioner having entered into an agreement of sale 30 years later from some of thes which agreement too was terminated on 2.4.2007 obviously cannot be granted an order of injunction restraining the respondent No.1 from claiming the property through VBP which prima facie not only has got interest in the property but also actual physical possession of the same. On the contrary, the petitioner as of now has neither any semblance of title nor has possession on the property nor prima facie case nor balance of convenience in his favour as he is yet to take possession and develop the property14. In view of these existing facts and circumstances of the matter, we are of the view that the learned single Judge was not justified in granting an order of injunction in favour of the petitioner and the same has rightly been reversed by the Division Bench of the High Court by assigning valid reasons.
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The Commissioner of Income Tax Vs. M/S. Umicore Finance Luxemborg | at the instance of the Respondents is not covered under clause (i) (ii) and (iii) of Section 245(N)(a) of the said Act. To examine such aspect, clause (i) of Section 245N(a) of the said Act defines advance ruling as thus :(a) Advance ruling means -(i) a determination by the Authority in relation to a transaction which has been undertaken or is proposed to be undertaken by a non-resident applicant.14. The learned AAR whilst dealing with such aspect has rightly observed in the Order dated 06.07.2009 at para 6 thus :6. It seems to us that the application is maintainable having regard to the wider language of sub-clause (i) of section 245N(a) in contrast with the language employed in sub-clause (ii). There is no specific requirement in sub-clause (i) that determination should relate to the tax liability of an on-resident. Going by the averments of the applicant, it is clear that the capital gain tax issue arising in the case of the acquired Indian company has a direct and substantial impact on the applicants business in view of the stipulations in share purchase agreement. Sub-clause (i) has to be construed in a wider sense and moreover a remedial provision shall be liberally construed. We are, therefore, of the view that the question raised by the applicant falls within the definition of advance ruling under section 245N9a) of the Act. Accordingly, the application is allowed under section 245R92) and posted for hearing on merits on 11th August, 2009.15. Considering the said aspect and as looking into the question as reformulated, the question as to whether capital gains are liable to be paid or not in terms by the transferee Company being a non resident Company, the Respondent herein, would be a matter which would come within the scope of advanced ruling in terms of the said depreciation.16. In this context, the High Court of Madras in the Judgment reported in (2009) 222 CTR (Mad) 270 in the case of Anurag Jain vs. Authority for Advance Rulings & anr.. has observed at paras 19, 20 and 24 thus :19. In that judgment, while dealing with the jurisdiction of the High Court under Article 226 of the Constitution of India apart from that of the Supreme Court under Article 136, the Supreme Court has confirmed with approval the earlier judgment in R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission [1989]176ITR169(SC) that the court is concerned with the legality of the procedure followed and not the validity of the order and the courts under judicial review are concerned not with the decision but with the decision-making. The relevant portion of the judgment of the Supreme Court in this regard is as follows (page 623 of 201 ITR):The scope of enquiry, whether by the High Court under Article 226 or by this court under Article 136 is also the same whether the order of the Commission is contrary to any of the provisions of the Act and if so, apart from ground of bias, fraud and malice which, of course, constitute a separate and independent category, has it prejudiced the petitioner/appellant. Reference in this behalf may be had to the decision of this court in R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission : [1989]176ITR169(SC) , which too was an appeal against the orders of the Settlement Commission. Sabyasachi Mukharji J., speaking for the Bench comprising himself and S.R. Pandian J., observed that, in such a case, this court is concerned with the legality of the procedure followed and not with the validity of the order. The learned judge added judicial review is concerned not with the decision but with the decision-making process. Reliance was placed upon the decision of the House of Lords in Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155 (HL). Thus, the appellate power under Article 136 was equated with the power of judicial review, where the appeal is directed against the orders of the Settlement Commission. For all the above reasons, we are of the opinion that the only ground upon which this court can interfere in these appeals is that the order of the Commission is contrary to the provisions of the Act and that such contravention has prejudiced the appellant. The main controversy in these appeals relates to the interpretation of the settlement deeds though it is true, some contentions of law are also raised. The Commission has interpreted the trust deeds in a particular manner. Even if the interpretation placed by the Commission on the said deeds is not correct, it would not be a ground for interference in these appeals, since a wrong interpretation of a deed of trust cannot be said to be a violation of the provisions of the Income Tax Act. It is equally clear that the interpretation placed upon the said deeds by the Commission does not bind the authorities under the Act in proceedings relating to other assessment years.20. Applying the said judicial dictum laid down by the Supreme Court to the facts of the present case even assuming that the first respondent authority has not interpreted the associated employment agreement which on fact forms part of the share purchase agreement in the proper manner, it is certainly not open to this court to go into the correctness or otherwise or validity or otherwise of the findings given by the first respondent.24. Hence, it is not necessary for this court to give any finding as to the jurisdiction of this court under Article 226 of the Constitution of India.17. Considering the said observations and taking note of the findings of the learned AAR, we find that there is no case made out for interference by this Court under Article 226 of the Constitution of India. The Petitioners were given an opportunity by the learned AAR and the contentions raised were duly considered whilst passing the impugned Orders. We find no reason to interfere in the impugned Orders passed by the learned AAR. | 0[ds]11. On perusal of the said observations, we find that the learned AAR has in a very reasoned Order, has taken a view that no capital gains accrued or attracted at the time of conversion of the partnership firm into a Private Limited Company. In part IX of the Companies Act, therefore, notwithstanding thenoncompliance with clause (d) ofthe proviso of Section 47(xiii) of the Income Tax Act by premature transfer of shares, the said Company is not liable to pay capital gains tax. These findings have been arrived at essentially looking into the fact that there was revaluation of assets at the time of conversion of the firm M/s. Anandeya Zinc Oxides Private Limited. The said finding of fact has not been disputed by the learned Counsel appearing for the Petitioners and, as such, the finding of the learned AAR that there was no capital gains in the transaction in question cannot be faulted. It is also to be noted that even immediately after such conversion in question from the partnership firm into a Private Limited Company, the assessment with regard to the income of the new Company as well as of the respective partners were filed and there was no objection or grievances raised by the Assessing Officer that any capital gains had to be paid on account of the incorporation of the Company in terms of the said provisions. The transfer of shares in favour of the Respondent by the erstwhile partners who were shareholders of M/s. Anandeya Zinc Oxides Private Limited and such partners/share holders are liable to pay capital gains even if acceptable, would not affect the decision passed by the learned AAR whilst coming to the conclusion that there were no capital gains at the time of incorporation of the new Company by the said partnershipsuch circumstances, we find that the said contention of the learned Counsel appearing for the Petitioner that in view of the transfer of the capital assets or intangible assets, there are capital gain tax payable by the transferee Company, cannot be accepted. As pointed out herein above, there was no capital gains payable at the time of the incorporation of the Company from the erstwhile partnership firm.Considering the said observations and taking note of the findings of the learned AAR, we find that there is no case made out for interference by this Court under Article 226 of the Constitution of India. The Petitioners were given an opportunity by the learned AAR and the contentions raised were duly considered whilst passing the impugned Orders. We find no reason to interfere in the impugned Orders passed by the learned AAR. | 0 | 4,597 | 476 | ### Instruction:
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at the instance of the Respondents is not covered under clause (i) (ii) and (iii) of Section 245(N)(a) of the said Act. To examine such aspect, clause (i) of Section 245N(a) of the said Act defines advance ruling as thus :(a) Advance ruling means -(i) a determination by the Authority in relation to a transaction which has been undertaken or is proposed to be undertaken by a non-resident applicant.14. The learned AAR whilst dealing with such aspect has rightly observed in the Order dated 06.07.2009 at para 6 thus :6. It seems to us that the application is maintainable having regard to the wider language of sub-clause (i) of section 245N(a) in contrast with the language employed in sub-clause (ii). There is no specific requirement in sub-clause (i) that determination should relate to the tax liability of an on-resident. Going by the averments of the applicant, it is clear that the capital gain tax issue arising in the case of the acquired Indian company has a direct and substantial impact on the applicants business in view of the stipulations in share purchase agreement. Sub-clause (i) has to be construed in a wider sense and moreover a remedial provision shall be liberally construed. We are, therefore, of the view that the question raised by the applicant falls within the definition of advance ruling under section 245N9a) of the Act. Accordingly, the application is allowed under section 245R92) and posted for hearing on merits on 11th August, 2009.15. Considering the said aspect and as looking into the question as reformulated, the question as to whether capital gains are liable to be paid or not in terms by the transferee Company being a non resident Company, the Respondent herein, would be a matter which would come within the scope of advanced ruling in terms of the said depreciation.16. In this context, the High Court of Madras in the Judgment reported in (2009) 222 CTR (Mad) 270 in the case of Anurag Jain vs. Authority for Advance Rulings & anr.. has observed at paras 19, 20 and 24 thus :19. In that judgment, while dealing with the jurisdiction of the High Court under Article 226 of the Constitution of India apart from that of the Supreme Court under Article 136, the Supreme Court has confirmed with approval the earlier judgment in R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission [1989]176ITR169(SC) that the court is concerned with the legality of the procedure followed and not the validity of the order and the courts under judicial review are concerned not with the decision but with the decision-making. The relevant portion of the judgment of the Supreme Court in this regard is as follows (page 623 of 201 ITR):The scope of enquiry, whether by the High Court under Article 226 or by this court under Article 136 is also the same whether the order of the Commission is contrary to any of the provisions of the Act and if so, apart from ground of bias, fraud and malice which, of course, constitute a separate and independent category, has it prejudiced the petitioner/appellant. Reference in this behalf may be had to the decision of this court in R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission : [1989]176ITR169(SC) , which too was an appeal against the orders of the Settlement Commission. Sabyasachi Mukharji J., speaking for the Bench comprising himself and S.R. Pandian J., observed that, in such a case, this court is concerned with the legality of the procedure followed and not with the validity of the order. The learned judge added judicial review is concerned not with the decision but with the decision-making process. Reliance was placed upon the decision of the House of Lords in Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155 (HL). Thus, the appellate power under Article 136 was equated with the power of judicial review, where the appeal is directed against the orders of the Settlement Commission. For all the above reasons, we are of the opinion that the only ground upon which this court can interfere in these appeals is that the order of the Commission is contrary to the provisions of the Act and that such contravention has prejudiced the appellant. The main controversy in these appeals relates to the interpretation of the settlement deeds though it is true, some contentions of law are also raised. The Commission has interpreted the trust deeds in a particular manner. Even if the interpretation placed by the Commission on the said deeds is not correct, it would not be a ground for interference in these appeals, since a wrong interpretation of a deed of trust cannot be said to be a violation of the provisions of the Income Tax Act. It is equally clear that the interpretation placed upon the said deeds by the Commission does not bind the authorities under the Act in proceedings relating to other assessment years.20. Applying the said judicial dictum laid down by the Supreme Court to the facts of the present case even assuming that the first respondent authority has not interpreted the associated employment agreement which on fact forms part of the share purchase agreement in the proper manner, it is certainly not open to this court to go into the correctness or otherwise or validity or otherwise of the findings given by the first respondent.24. Hence, it is not necessary for this court to give any finding as to the jurisdiction of this court under Article 226 of the Constitution of India.17. Considering the said observations and taking note of the findings of the learned AAR, we find that there is no case made out for interference by this Court under Article 226 of the Constitution of India. The Petitioners were given an opportunity by the learned AAR and the contentions raised were duly considered whilst passing the impugned Orders. We find no reason to interfere in the impugned Orders passed by the learned AAR.
### Response:
0
### Explanation:
11. On perusal of the said observations, we find that the learned AAR has in a very reasoned Order, has taken a view that no capital gains accrued or attracted at the time of conversion of the partnership firm into a Private Limited Company. In part IX of the Companies Act, therefore, notwithstanding thenoncompliance with clause (d) ofthe proviso of Section 47(xiii) of the Income Tax Act by premature transfer of shares, the said Company is not liable to pay capital gains tax. These findings have been arrived at essentially looking into the fact that there was revaluation of assets at the time of conversion of the firm M/s. Anandeya Zinc Oxides Private Limited. The said finding of fact has not been disputed by the learned Counsel appearing for the Petitioners and, as such, the finding of the learned AAR that there was no capital gains in the transaction in question cannot be faulted. It is also to be noted that even immediately after such conversion in question from the partnership firm into a Private Limited Company, the assessment with regard to the income of the new Company as well as of the respective partners were filed and there was no objection or grievances raised by the Assessing Officer that any capital gains had to be paid on account of the incorporation of the Company in terms of the said provisions. The transfer of shares in favour of the Respondent by the erstwhile partners who were shareholders of M/s. Anandeya Zinc Oxides Private Limited and such partners/share holders are liable to pay capital gains even if acceptable, would not affect the decision passed by the learned AAR whilst coming to the conclusion that there were no capital gains at the time of incorporation of the new Company by the said partnershipsuch circumstances, we find that the said contention of the learned Counsel appearing for the Petitioner that in view of the transfer of the capital assets or intangible assets, there are capital gain tax payable by the transferee Company, cannot be accepted. As pointed out herein above, there was no capital gains payable at the time of the incorporation of the Company from the erstwhile partnership firm.Considering the said observations and taking note of the findings of the learned AAR, we find that there is no case made out for interference by this Court under Article 226 of the Constitution of India. The Petitioners were given an opportunity by the learned AAR and the contentions raised were duly considered whilst passing the impugned Orders. We find no reason to interfere in the impugned Orders passed by the learned AAR.
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M/S. Tata Iron & Steel Co. Ltd Vs. The Workmen & Ors | concession or privilege or change in usage" is also wide enough to take within its fold the change of weekly holidays from Sunday to some other day of the week, because it seems to us to be a plausible argument to urge that fixation of Sundays as weekly rest days is founded on usage and/or is treated as a customary privilege and any change in such weekly holidays would fall within the expressions "change in usage" or "customary privilege". 13. We are not unmindful of the force of the argument pressed on behalf of the appellant that if a holiday is changed from Sunday to some other week day it would not affect the material gain or financial benefit available to the workmen because the workmen would nonetheless get one day off with pay in a week. Whether the paid day of rest is a Sunday or some other week day would not doubt cause no financial loss to the workmen. But the financial benefit cannot be the sole criterion in considering this question. In this connection it must not be ignored that due to long usage and other factors Sunday as a holiday may for conceivable reasons have assumed importance for workmen. For certain classes of workmen Sunday as a weekly rest day may also have special significance. Workmen may, for example, also generally like to have weekly rest day on a Sunday when their School going children have a holiday so that the entire family may be able to take part in recreational or other social activities. This consideration has its own importance. If that be so, then, notice for effecting such a change would be within the contemplation of Section 9-A. Further the real object and purpose of enacting Section 9-A seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and if necessary to present their point of view on the proposal. Such consultation further serves to stimulate a feeling of common joint interest of the management and workmen in the industrial progress and increased productivity. This approach on the part of the industrial employer would reflect his harmonious and sympathetic co-operation in improving the status and dignity of the Industrial employee in accordance with the egalitarian and progressive trend of our Industrial jurisprudence, which strives to treat the capital and labour as co-sharers and to break away from the tradition of labours subservience to capital. 14. Shri Pai referred us to the Factories Act, 63 of 1948 and submitted that Section 52 read with Section 2 (f) of that Act indicates that adult workers are not required to work on Sundays except under certain conditions. It was argued that when Sundays as rest days are considered of importance, the law in terms so provides. In the present case, according to the submission, no importance is intended to be attached to Sundays as weekly days of rest. A change from Sundays to some other week days as days of rest should be considered as a matter of little or of no importance for the workmen. We are unable to agree with this submission. In our opinion, the Factories Act fortifies our view by suggesting that it is not immaterial or unimportant whether workmen are given a Sunday or some other week days as a weekly rest day. Though reference was also made by Shri Pai to the Mines Act, 35 of 1952, in our opinion, each statutory provision has to be construed on its own language though the general scheme of legislation on a given subject may, if necessary, be kept in view, if it throws helpful light on the construction to be placed on an ambiguous provision. No such consideration arises in the present case. 15. In our opinion, in order to effectively achieve the object underlying Section 9-A, it would be more appropriate to place on the Fourth Schedule and with Section 9-A a construction liberal enough to include change of weekly rest days from Sunday to some other week day. The appellant having thus effected a change in the weekly days of rest without complying with S. 9-A read with the Fourth Schedule this change must be held to be ineffective and the previous schedule of weekly days of rest must be held to be still operative. Reference was made at the bar to certain decisions but they are of little assistance in construing the statutory provisions with which we are concerned and which, as already observed, have to be construed on their own language and scheme. We, therefore, do not consider it necessary to refer to those decisions. 16. The result then is that the appellants contention that the workmen concerned had resorted to illegal strike on September 22 and 29, 1963 must be rejected. On this view the respondents contention that the appellant had illegally declined to give work to the respondents on September 25 and 26, 1963 and that the appellant had declared lock-out on those two days which was illegal has also to be upheld. No doubts, mere refusal to give work does not by itself amount to lock-out but in the present case it cannot be disputed that when the employers closed the Sijua and Bhelatand collieries respectively on September 25 and 26, 1963 they knew that this change in the weekly days of rest was not acceptable to a considerable section of the workmen who had not come to work on Sunday, September 22, 1963.The closure of the place of work in the two aforesaid collieries on the two days in question was thus deliberate. Coal having been declared public utility service, as observed by the Regional Labour Commissioner in his order notice as contemplated by Section 22 of the Act was necessary. Such a notice having not been given, the lock-out was clearly illegal under section 24 of the Act. The High Court was in our opinion right in the orders made by it in the Writ Petitions. | 0[ds]12. We now come to the main contention. Section 9-A which has already been reproduced, lays down that change in the conditions of service in respect of any matter specified in the Fourth Schedule shall not have effect unless a notice is given to the workmen likely to be affected by such change. The relevant entries of the Fourth Schedule have already been reproduced. It appears to us that entries dealing with "hours of work and rest intervals" and "leave with wages and holidays" are wide enough to cover the case of illegal strikes and rest days. Indeed, entry no. 8 dealing with "withdrawal of customary concession or privilege or change in usage" is also wide enough to take within its fold the change of weekly holidays from Sunday to some other day of the week, because it seems to us to be a plausible argument to urge that fixation of Sundays as weekly rest days is founded on usage and/or is treated as a customary privilege and any change in such weekly holidays would fall within the expressions "change in usage" or "customary privilege"13. We are not unmindful of the force of the argument pressed on behalf of the appellant that if a holiday is changed from Sunday to some other week day it would not affect the material gain or financial benefit available to the workmen because the workmen would nonetheless get one day off with pay in a week.Whether the paid day of rest is a Sunday or some other week day would not doubt cause no financial loss to the workmen.But the financial benefit cannot be the sole criterion in considering this question. In this connection it must not be ignored that due to long usage and other factors Sunday as a holiday may for conceivable reasons have assumed importance for workmen. For certain classes of workmen Sunday as a weekly rest day may also have special significance. Workmen may, for example, also generally like to have weekly rest day on a Sunday when their School going children have a holiday so that the entire family may be able to take part in recreational or other social activities. This consideration has its own importance. If that be so, then, notice for effecting such a change would be within the contemplation of Section 9-A. Further the real object and purpose of enacting Section 9-A seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and if necessary to present their point of view on the proposal. Such consultation further serves to stimulate a feeling of common joint interest of the management and workmen in the industrial progress and increased productivity. This approach on the part of the industrial employer would reflect his harmonious and sympathetic co-operation in improving the status and dignity of the Industrial employee in accordance with the egalitarian and progressive trend of our Industrial jurisprudence, which strives to treat the capital and labour as co-sharers and to break away from the tradition of labours subservience to capital15. In our opinion, in order to effectively achieve the object underlying Section 9-A, it would be more appropriate to place on the Fourth Schedule and with Section 9-A a construction liberal enough to include change of weekly rest days from Sunday to some other week day. The appellant having thus effected a change in the weekly days of rest without complying with S. 9-A read with the Fourth Schedule this change must be held to be ineffective and the previous schedule of weekly days of rest must be held to be still operative. Reference was made at the bar to certain decisions but they are of little assistance in construing the statutory provisions with which we are concerned and which, as already observed, have to be construed on their own language and scheme. We, therefore, do not consider it necessary to refer to those decisions16. The result then is that the appellants contention that the workmen concerned had resorted to illegal strike on September 22 and 29, 1963 must be rejected. On this view the respondents contention that the appellant had illegally declined to give work to the respondents on September 25 and 26, 1963 and that the appellant had declared lock-out on those two days which was illegal has also to be upheld. No doubts, mere refusal to give work does not by itself amount to lock-out but in the present case it cannot be disputed that when the employers closed the Sijua and Bhelatand collieries respectively on September 25 and 26, 1963 they knew that this change in the weekly days of rest was not acceptable to a considerable section of the workmen who had not come to work on Sunday, September 22, 1963.The closure of the place of work in the two aforesaid collieries on the two days in question was thus deliberate. Coal having been declared public utility service, as observed by the Regional Labour Commissioner in his order notice as contemplated by Section 22 of the Act was necessary. Such a notice having not been given, the lock-out was clearly illegal under section 24 of the Act. The High Court was in our opinion right in the orders made by it in the Writ Petitions. | 0 | 5,081 | 946 | ### 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:
concession or privilege or change in usage" is also wide enough to take within its fold the change of weekly holidays from Sunday to some other day of the week, because it seems to us to be a plausible argument to urge that fixation of Sundays as weekly rest days is founded on usage and/or is treated as a customary privilege and any change in such weekly holidays would fall within the expressions "change in usage" or "customary privilege". 13. We are not unmindful of the force of the argument pressed on behalf of the appellant that if a holiday is changed from Sunday to some other week day it would not affect the material gain or financial benefit available to the workmen because the workmen would nonetheless get one day off with pay in a week. Whether the paid day of rest is a Sunday or some other week day would not doubt cause no financial loss to the workmen. But the financial benefit cannot be the sole criterion in considering this question. In this connection it must not be ignored that due to long usage and other factors Sunday as a holiday may for conceivable reasons have assumed importance for workmen. For certain classes of workmen Sunday as a weekly rest day may also have special significance. Workmen may, for example, also generally like to have weekly rest day on a Sunday when their School going children have a holiday so that the entire family may be able to take part in recreational or other social activities. This consideration has its own importance. If that be so, then, notice for effecting such a change would be within the contemplation of Section 9-A. Further the real object and purpose of enacting Section 9-A seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and if necessary to present their point of view on the proposal. Such consultation further serves to stimulate a feeling of common joint interest of the management and workmen in the industrial progress and increased productivity. This approach on the part of the industrial employer would reflect his harmonious and sympathetic co-operation in improving the status and dignity of the Industrial employee in accordance with the egalitarian and progressive trend of our Industrial jurisprudence, which strives to treat the capital and labour as co-sharers and to break away from the tradition of labours subservience to capital. 14. Shri Pai referred us to the Factories Act, 63 of 1948 and submitted that Section 52 read with Section 2 (f) of that Act indicates that adult workers are not required to work on Sundays except under certain conditions. It was argued that when Sundays as rest days are considered of importance, the law in terms so provides. In the present case, according to the submission, no importance is intended to be attached to Sundays as weekly days of rest. A change from Sundays to some other week days as days of rest should be considered as a matter of little or of no importance for the workmen. We are unable to agree with this submission. In our opinion, the Factories Act fortifies our view by suggesting that it is not immaterial or unimportant whether workmen are given a Sunday or some other week days as a weekly rest day. Though reference was also made by Shri Pai to the Mines Act, 35 of 1952, in our opinion, each statutory provision has to be construed on its own language though the general scheme of legislation on a given subject may, if necessary, be kept in view, if it throws helpful light on the construction to be placed on an ambiguous provision. No such consideration arises in the present case. 15. In our opinion, in order to effectively achieve the object underlying Section 9-A, it would be more appropriate to place on the Fourth Schedule and with Section 9-A a construction liberal enough to include change of weekly rest days from Sunday to some other week day. The appellant having thus effected a change in the weekly days of rest without complying with S. 9-A read with the Fourth Schedule this change must be held to be ineffective and the previous schedule of weekly days of rest must be held to be still operative. Reference was made at the bar to certain decisions but they are of little assistance in construing the statutory provisions with which we are concerned and which, as already observed, have to be construed on their own language and scheme. We, therefore, do not consider it necessary to refer to those decisions. 16. The result then is that the appellants contention that the workmen concerned had resorted to illegal strike on September 22 and 29, 1963 must be rejected. On this view the respondents contention that the appellant had illegally declined to give work to the respondents on September 25 and 26, 1963 and that the appellant had declared lock-out on those two days which was illegal has also to be upheld. No doubts, mere refusal to give work does not by itself amount to lock-out but in the present case it cannot be disputed that when the employers closed the Sijua and Bhelatand collieries respectively on September 25 and 26, 1963 they knew that this change in the weekly days of rest was not acceptable to a considerable section of the workmen who had not come to work on Sunday, September 22, 1963.The closure of the place of work in the two aforesaid collieries on the two days in question was thus deliberate. Coal having been declared public utility service, as observed by the Regional Labour Commissioner in his order notice as contemplated by Section 22 of the Act was necessary. Such a notice having not been given, the lock-out was clearly illegal under section 24 of the Act. The High Court was in our opinion right in the orders made by it in the Writ Petitions.
### Response:
0
### Explanation:
12. We now come to the main contention. Section 9-A which has already been reproduced, lays down that change in the conditions of service in respect of any matter specified in the Fourth Schedule shall not have effect unless a notice is given to the workmen likely to be affected by such change. The relevant entries of the Fourth Schedule have already been reproduced. It appears to us that entries dealing with "hours of work and rest intervals" and "leave with wages and holidays" are wide enough to cover the case of illegal strikes and rest days. Indeed, entry no. 8 dealing with "withdrawal of customary concession or privilege or change in usage" is also wide enough to take within its fold the change of weekly holidays from Sunday to some other day of the week, because it seems to us to be a plausible argument to urge that fixation of Sundays as weekly rest days is founded on usage and/or is treated as a customary privilege and any change in such weekly holidays would fall within the expressions "change in usage" or "customary privilege"13. We are not unmindful of the force of the argument pressed on behalf of the appellant that if a holiday is changed from Sunday to some other week day it would not affect the material gain or financial benefit available to the workmen because the workmen would nonetheless get one day off with pay in a week.Whether the paid day of rest is a Sunday or some other week day would not doubt cause no financial loss to the workmen.But the financial benefit cannot be the sole criterion in considering this question. In this connection it must not be ignored that due to long usage and other factors Sunday as a holiday may for conceivable reasons have assumed importance for workmen. For certain classes of workmen Sunday as a weekly rest day may also have special significance. Workmen may, for example, also generally like to have weekly rest day on a Sunday when their School going children have a holiday so that the entire family may be able to take part in recreational or other social activities. This consideration has its own importance. If that be so, then, notice for effecting such a change would be within the contemplation of Section 9-A. Further the real object and purpose of enacting Section 9-A seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and if necessary to present their point of view on the proposal. Such consultation further serves to stimulate a feeling of common joint interest of the management and workmen in the industrial progress and increased productivity. This approach on the part of the industrial employer would reflect his harmonious and sympathetic co-operation in improving the status and dignity of the Industrial employee in accordance with the egalitarian and progressive trend of our Industrial jurisprudence, which strives to treat the capital and labour as co-sharers and to break away from the tradition of labours subservience to capital15. In our opinion, in order to effectively achieve the object underlying Section 9-A, it would be more appropriate to place on the Fourth Schedule and with Section 9-A a construction liberal enough to include change of weekly rest days from Sunday to some other week day. The appellant having thus effected a change in the weekly days of rest without complying with S. 9-A read with the Fourth Schedule this change must be held to be ineffective and the previous schedule of weekly days of rest must be held to be still operative. Reference was made at the bar to certain decisions but they are of little assistance in construing the statutory provisions with which we are concerned and which, as already observed, have to be construed on their own language and scheme. We, therefore, do not consider it necessary to refer to those decisions16. The result then is that the appellants contention that the workmen concerned had resorted to illegal strike on September 22 and 29, 1963 must be rejected. On this view the respondents contention that the appellant had illegally declined to give work to the respondents on September 25 and 26, 1963 and that the appellant had declared lock-out on those two days which was illegal has also to be upheld. No doubts, mere refusal to give work does not by itself amount to lock-out but in the present case it cannot be disputed that when the employers closed the Sijua and Bhelatand collieries respectively on September 25 and 26, 1963 they knew that this change in the weekly days of rest was not acceptable to a considerable section of the workmen who had not come to work on Sunday, September 22, 1963.The closure of the place of work in the two aforesaid collieries on the two days in question was thus deliberate. Coal having been declared public utility service, as observed by the Regional Labour Commissioner in his order notice as contemplated by Section 22 of the Act was necessary. Such a notice having not been given, the lock-out was clearly illegal under section 24 of the Act. The High Court was in our opinion right in the orders made by it in the Writ Petitions.
|
Bharat Sanchar Nigam Limited Vs. Balasaheb Maruti Poojari & Another | complaint to any superior officer of Mr. Deshpande when he told him not to come on duty. Not only that but the Respondent worker has also admitted that six years after 28/02/1985 for the first time, he approached conciliation officer and raised dispute by way of Reference, after nine years. In that also he had not specifically named Mr. Deshpande He has also admitted that he never resumed duty after termination on 28/02/1985. So, this very conduct viz. keeping mum and not taking any action for a long period of about 9 years and not ventilating the grievance clearly indicates that Respondent worker had at that time no intention to continue with the service and on the contrary he had an intention to abandon the service. Any worker who is interested in the job would not keep mum when he is simply asked by one officer that he should not join duty. He would definitely insist for some written order or would make grievance about the officer. However, no such thing has taken place in the instant case. This obviously shows that respondent worker must not be interested in the said job. He might have received some other job. Otherwise it is very difficult to believe that such person would keep mum for years together. So, the facts and circumstances of this case are in fact quite eloquent to establish the contention of the employer that Respondent worker abandoned the services and they never terminated his service. However, unfortunately, the learned Labour Judge did not properly consider all the above mentioned facts and circumstances and as a result of the same reached to a wrong conclusion that the employer has failed to prove the case of abandonment. With respect, we are of the considered opinion that the learned single Judge has also not dwelled on this point and has only accepted the finding recorded by the learned Labour Judge. So, in our considered view, Reference in question as well as writ petition filed by the worker are liable to be dismissed on this ground alone.12. Even if we assume for the sake of argument that there is no sufficient material on record to reach to the conclusion that there was abandonment of service by the worker, still then, the question arises, whether in the facts and circumstances of this case it was obligatory on the part of the employer to comply with the provisions of section 25F of the Industrial Disputes Act.13. Shri Bapat, learned Advocate for the Respondent worker strenuously argued before us that once it is proved that worker had worked for 240 days continuously then even though he is a casual worker it is necessary to comply with the provisions of Sec. 25F of the said Act. He has placed reliance on a case Uttar Pradesh State Electricity Board V/s. Rajesh Kumar reported in (2003) 12 SCC 548. However, the facts of the said case and the facts of the case in had are quite different. In that case, the worker was regularly appointed and shown on the list of workers while in the instant case admittedly, at no point of time the Respondent worker has been appointed on a particular vacant post by the employer and it is only when work was available the services of Respondent worker were taken. So, the above cited case is of no use to the present respondent.14. An attempt was made on behalf of the Respondent worker to show that one Mr. Reddy who was working with him was subsequently absolved and made permanent. However, admittedly, the respondent has failed to adduce any cogent evidence in this behalf to show that though Reddys name was not in the list of workers appointed by the company he has been absolved in the company. The Company has produced letter dated 07/11/1989 at Exh-36, showing details of the grant of temporary status and regularisation scheme meant for the workers. From the said scheme it appears that if casual labourer are designated as temporary mazdoor they are not taken on permanent establishment unless they are selected during the regular selection process for grade D post. However, in the instant case there is absolutely no material on record to show that the Respondent worker had acquired the status of temporary worker. So, under such circumstances merely because Respondent worked continuously for 240 days, it can not be said that it was necessary for the employer to issue notice and follow the provisions under I.D. Act. In fact, in a case M.P. Housing Board and Anr. V/s. Manoj Shrivastava 2006 AIR SCW 1235 the Apex Court has observed:Where the employee was appointed as daily wager but not against a vacant post which was duly sanctioned by the statutory authority nor his appointment was made upon following the statutory law operating in the field, he can not be made permanent employee. A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto. Further, only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service."15. Similar view is taken by their Lordships of the Apex Court in a case Branch Manager, M.P. State Agro. Industrial Development Corporation V/s. S.C. Pande 2006 (1) CLR 1066.16. Thus, having regard to the above mentioned recent decisions of the Apex Court and considering the facts and circumstances of the present case we are of the view that the present Appellant Bharat Sanchar Nigam was not under statutory obligation in this case to issue notice of termination to respondent worker and follow the procedure as laid down under section 25F of the I.D. Act. The present Respondent worker has in fact abandoned his service. He made no grievance about the alleged termination for a period of about 8-9 years and as such he is certainly not entitled for reinstatement. | 1[ds]11. It is an admitted fact that in the instant case the Respondent worker was working as a casual labourer or mazdoor. According to him, on 28/02/1985Engineer one Mr. Deshpande told him that he should not come on duty. It is pertinent to note that the said worker has clearly admitted in histhat he never made any complaint to any superior officer of Mr. Deshpande when he told him not to come on duty. Not only that but the Respondent worker has also admitted that six years after 28/02/1985 for the first time, he approached conciliation officer and raised dispute by way of Reference, after nine years. In that also he had not specifically named Mr. Deshpande He has also admitted that he never resumed duty after termination on 28/02/1985. So, this very conduct viz. keeping mum and not taking any action for a long period of about 9 years and not ventilating the grievance clearly indicates that Respondent worker had at that time no intention to continue with the service and on the contrary he had an intention to abandon the service. Any worker who is interested in the job would not keep mum when he is simply asked by one officer that he should not join duty. He would definitely insist for some written order or would make grievance about the officer. However, no such thing has taken place in the instant case. This obviously shows that respondent worker must not be interested in the said job. He might have received some other job. Otherwise it is very difficult to believe that such person would keep mum for years together. So, the facts and circumstances of this case are in fact quite eloquent to establish the contention of the employer that Respondent worker abandoned the services and they never terminated his service. However, unfortunately, the learned Labour Judge did not properly consider all the above mentioned facts and circumstances and as a result of the same reached to a wrong conclusion that the employer has failed to prove the case of abandonment. With respect, we are of the considered opinion that the learned single Judge has also not dwelled on this point and has only accepted the finding recorded by the learned Labour Judge. So, in our considered view, Reference in question as well as writ petition filed by the worker are liable to be dismissed on this groundthe facts of the said case and the facts of the case in had are quite different. In that case, the worker was regularly appointed and shown on the list of workers while in the instant case admittedly, at no point of time the Respondent worker has been appointed on a particular vacant post by the employer and it is only when work was available the services of Respondent worker were taken. So, the above cited case is of no use to the present respondent.14. An attempt was made on behalf of the Respondent worker to show that one Mr. Reddy who was working with him was subsequently absolved and made permanent. However, admittedly, the respondent has failed to adduce any cogent evidence in this behalf to show that though Reddys name was not in the list of workers appointed by the company he has been absolved in the company. The Company has produced letter dated 07/11/1989 atshowing details of the grant of temporary status and regularisation scheme meant for the workers. From the said scheme it appears that if casual labourer are designated as temporary mazdoor they are not taken on permanent establishment unless they are selected during the regular selection process for grade D post. However, in the instant case there is absolutely no material on record to show that the Respondent worker had acquired the status of temporary worker. So, under such circumstances merely because Respondent worked continuously for 240 days, it can not be said that it was necessary for the employer to issue notice and follow the provisions under I.D. Act. In fact, in a case M.P. Housing Board and Anr. V/s. Manoj Shrivastava 2006 AIR SCW 1235 the Apex Court has observed:Where the employee was appointed as daily wager but not against a vacant post which was duly sanctioned by the statutory authority nor his appointment was made upon following the statutory law operating in the field, he can not be made permanent employee. A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto. Further, only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service."15. Similar view is taken by their Lordships of the Apex Court in a case Branch Manager, M.P. State Agro. Industrial Development Corporation V/s. S.C. Pande 2006 (1) CLR 1066.16. Thus, having regard to the above mentioned recent decisions of the Apex Court and considering the facts and circumstances of the present case we are of the view that the present Appellant Bharat Sanchar Nigam was not under statutory obligation in this case to issue notice of termination to respondent worker and follow the procedure as laid down under section 25F of the I.D. Act. The present Respondent worker has in fact abandoned his service. He made no grievance about the alleged termination for a period of aboutyears and as such he is certainly not entitled for reinstatement. | 1 | 2,345 | 991 | ### 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:
complaint to any superior officer of Mr. Deshpande when he told him not to come on duty. Not only that but the Respondent worker has also admitted that six years after 28/02/1985 for the first time, he approached conciliation officer and raised dispute by way of Reference, after nine years. In that also he had not specifically named Mr. Deshpande He has also admitted that he never resumed duty after termination on 28/02/1985. So, this very conduct viz. keeping mum and not taking any action for a long period of about 9 years and not ventilating the grievance clearly indicates that Respondent worker had at that time no intention to continue with the service and on the contrary he had an intention to abandon the service. Any worker who is interested in the job would not keep mum when he is simply asked by one officer that he should not join duty. He would definitely insist for some written order or would make grievance about the officer. However, no such thing has taken place in the instant case. This obviously shows that respondent worker must not be interested in the said job. He might have received some other job. Otherwise it is very difficult to believe that such person would keep mum for years together. So, the facts and circumstances of this case are in fact quite eloquent to establish the contention of the employer that Respondent worker abandoned the services and they never terminated his service. However, unfortunately, the learned Labour Judge did not properly consider all the above mentioned facts and circumstances and as a result of the same reached to a wrong conclusion that the employer has failed to prove the case of abandonment. With respect, we are of the considered opinion that the learned single Judge has also not dwelled on this point and has only accepted the finding recorded by the learned Labour Judge. So, in our considered view, Reference in question as well as writ petition filed by the worker are liable to be dismissed on this ground alone.12. Even if we assume for the sake of argument that there is no sufficient material on record to reach to the conclusion that there was abandonment of service by the worker, still then, the question arises, whether in the facts and circumstances of this case it was obligatory on the part of the employer to comply with the provisions of section 25F of the Industrial Disputes Act.13. Shri Bapat, learned Advocate for the Respondent worker strenuously argued before us that once it is proved that worker had worked for 240 days continuously then even though he is a casual worker it is necessary to comply with the provisions of Sec. 25F of the said Act. He has placed reliance on a case Uttar Pradesh State Electricity Board V/s. Rajesh Kumar reported in (2003) 12 SCC 548. However, the facts of the said case and the facts of the case in had are quite different. In that case, the worker was regularly appointed and shown on the list of workers while in the instant case admittedly, at no point of time the Respondent worker has been appointed on a particular vacant post by the employer and it is only when work was available the services of Respondent worker were taken. So, the above cited case is of no use to the present respondent.14. An attempt was made on behalf of the Respondent worker to show that one Mr. Reddy who was working with him was subsequently absolved and made permanent. However, admittedly, the respondent has failed to adduce any cogent evidence in this behalf to show that though Reddys name was not in the list of workers appointed by the company he has been absolved in the company. The Company has produced letter dated 07/11/1989 at Exh-36, showing details of the grant of temporary status and regularisation scheme meant for the workers. From the said scheme it appears that if casual labourer are designated as temporary mazdoor they are not taken on permanent establishment unless they are selected during the regular selection process for grade D post. However, in the instant case there is absolutely no material on record to show that the Respondent worker had acquired the status of temporary worker. So, under such circumstances merely because Respondent worked continuously for 240 days, it can not be said that it was necessary for the employer to issue notice and follow the provisions under I.D. Act. In fact, in a case M.P. Housing Board and Anr. V/s. Manoj Shrivastava 2006 AIR SCW 1235 the Apex Court has observed:Where the employee was appointed as daily wager but not against a vacant post which was duly sanctioned by the statutory authority nor his appointment was made upon following the statutory law operating in the field, he can not be made permanent employee. A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto. Further, only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service."15. Similar view is taken by their Lordships of the Apex Court in a case Branch Manager, M.P. State Agro. Industrial Development Corporation V/s. S.C. Pande 2006 (1) CLR 1066.16. Thus, having regard to the above mentioned recent decisions of the Apex Court and considering the facts and circumstances of the present case we are of the view that the present Appellant Bharat Sanchar Nigam was not under statutory obligation in this case to issue notice of termination to respondent worker and follow the procedure as laid down under section 25F of the I.D. Act. The present Respondent worker has in fact abandoned his service. He made no grievance about the alleged termination for a period of about 8-9 years and as such he is certainly not entitled for reinstatement.
### Response:
1
### Explanation:
11. It is an admitted fact that in the instant case the Respondent worker was working as a casual labourer or mazdoor. According to him, on 28/02/1985Engineer one Mr. Deshpande told him that he should not come on duty. It is pertinent to note that the said worker has clearly admitted in histhat he never made any complaint to any superior officer of Mr. Deshpande when he told him not to come on duty. Not only that but the Respondent worker has also admitted that six years after 28/02/1985 for the first time, he approached conciliation officer and raised dispute by way of Reference, after nine years. In that also he had not specifically named Mr. Deshpande He has also admitted that he never resumed duty after termination on 28/02/1985. So, this very conduct viz. keeping mum and not taking any action for a long period of about 9 years and not ventilating the grievance clearly indicates that Respondent worker had at that time no intention to continue with the service and on the contrary he had an intention to abandon the service. Any worker who is interested in the job would not keep mum when he is simply asked by one officer that he should not join duty. He would definitely insist for some written order or would make grievance about the officer. However, no such thing has taken place in the instant case. This obviously shows that respondent worker must not be interested in the said job. He might have received some other job. Otherwise it is very difficult to believe that such person would keep mum for years together. So, the facts and circumstances of this case are in fact quite eloquent to establish the contention of the employer that Respondent worker abandoned the services and they never terminated his service. However, unfortunately, the learned Labour Judge did not properly consider all the above mentioned facts and circumstances and as a result of the same reached to a wrong conclusion that the employer has failed to prove the case of abandonment. With respect, we are of the considered opinion that the learned single Judge has also not dwelled on this point and has only accepted the finding recorded by the learned Labour Judge. So, in our considered view, Reference in question as well as writ petition filed by the worker are liable to be dismissed on this groundthe facts of the said case and the facts of the case in had are quite different. In that case, the worker was regularly appointed and shown on the list of workers while in the instant case admittedly, at no point of time the Respondent worker has been appointed on a particular vacant post by the employer and it is only when work was available the services of Respondent worker were taken. So, the above cited case is of no use to the present respondent.14. An attempt was made on behalf of the Respondent worker to show that one Mr. Reddy who was working with him was subsequently absolved and made permanent. However, admittedly, the respondent has failed to adduce any cogent evidence in this behalf to show that though Reddys name was not in the list of workers appointed by the company he has been absolved in the company. The Company has produced letter dated 07/11/1989 atshowing details of the grant of temporary status and regularisation scheme meant for the workers. From the said scheme it appears that if casual labourer are designated as temporary mazdoor they are not taken on permanent establishment unless they are selected during the regular selection process for grade D post. However, in the instant case there is absolutely no material on record to show that the Respondent worker had acquired the status of temporary worker. So, under such circumstances merely because Respondent worked continuously for 240 days, it can not be said that it was necessary for the employer to issue notice and follow the provisions under I.D. Act. In fact, in a case M.P. Housing Board and Anr. V/s. Manoj Shrivastava 2006 AIR SCW 1235 the Apex Court has observed:Where the employee was appointed as daily wager but not against a vacant post which was duly sanctioned by the statutory authority nor his appointment was made upon following the statutory law operating in the field, he can not be made permanent employee. A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto. Further, only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service."15. Similar view is taken by their Lordships of the Apex Court in a case Branch Manager, M.P. State Agro. Industrial Development Corporation V/s. S.C. Pande 2006 (1) CLR 1066.16. Thus, having regard to the above mentioned recent decisions of the Apex Court and considering the facts and circumstances of the present case we are of the view that the present Appellant Bharat Sanchar Nigam was not under statutory obligation in this case to issue notice of termination to respondent worker and follow the procedure as laid down under section 25F of the I.D. Act. The present Respondent worker has in fact abandoned his service. He made no grievance about the alleged termination for a period of aboutyears and as such he is certainly not entitled for reinstatement.
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73Jyoti Bhushan Gupta Vs. The Banaras Bank Ltd | as a court of first instance and not in exercise of its appellate jurisdiction. Again by S. 187 no special jurisdiction is conferred. The High Court adjudicates upon the liability of the debtor to pay debts due by him to the Company : the jurisdiction is therefore civil. Normally, a creditor has to file a suit to enforce liability for payment of a debt due to him from his debtor, The Legislature has by S. 187 of the Companies Act empowered the High Court in a summary proceeding to determine the liability and to pass an order for payment, but on that account the real character of the jurisdiction exercised by the High Court is not altered. Nor is there any substance in the contention that the authority to order payment of a debt under S. 187 is merely a power of the High Court and not its jurisdiction. By S. 3 read with S. 187 of the Companies Act the High Court has jurisdiction to direct payment of the amount due by a contributory: and an order passed for payment manifestly is an order passed in exercise of the jurisdiction vested in the High Court by S. 3 read with S. 187 of the Companies Act.9. The Judicial Committee of the Privy Council was called upon In the matter of Candas Narrondas, ILR 13 Bom 520 (PC) to determine the true nature of the jurisdiction exercised by the High Court of judicature at Bombay in respect of insolvent debtors. The Privy Council held that Article 180 of Schedule II of the Indian Limitation Act XV of 1877 (which was similar to Article 183 of the Indian Limitation Act, 1908) applies to a judgment of a Court for the relief of insolvent debtors entered up in the High Court, in accordance with section 86 of the Statute 11 and 12 Vic., C. 21. It was held in that case that although a Court exercising insolvency jurisdiction determines the substance of the question relating to an insolvents estate, the proceedings in execution and the judgment are the High Courts. The judgment is entered up in the ordinary course of the duty cast upon the High Court by the law, not by way of special or extraordinary action, but in the exercise of its ordinary original civil jurisdiction. Lord Hobhouse delivering the judgment of the Judicial Committee observed :"But it was strongly contended at the bar that this jurisdiction though civil and original, was not ordinary; and Mr. Rigby argued that the passages of the Charter which have just been epitomised divide the jurisdiction into four classes- ordinary, original, extraordinary original, appellate and those special matters which are the subject of special and separate provisions. But their Lordships are of the opinion that the expression "ordinary jurisdiction" embraces all such as is exercised in the ordinary course of law and without any special step being necessary to assume it; and that it is opposed to extraordinary jurisdiction, which the Court may assume at its discretion on special occasions and by special orders.They are confirmed in this view by observing that, in the next group of clauses which indicate the law to be applied by the Court to the various classes of cases, there is not a fourfold division of jurisdiction, but a three-fold one, into ordinary, extraordinary, and appellate. The judgment of 1868 was entered up by the High Court, not by way of special or discretionary action, but in the ordinary course of the duty cast upon it by law, according to which every other case of the same kind would be dealt with. It was, therefore, entered up in exercise of the ordinary original civil jurisdiction of the High Court."Counsel for the appellants contended that by Cl. 18 of the Letters Patent the High Court of Bombay was invested with insolvency jurisdiction whereas the High Court of Allahabad is not invested by the Letters Patent with any jurisdiction in the matter of companies and therefore the principle of ILR 13 Bom 520 (PC), does, not apply. But under Cl. 18 of the Letters Patent a Judge or Judges of the High Court are to sit as a Court for relief of insolvent debtors and powers and authorities with respect to original and appellate jurisdiction are to be determined by reference to the law relating to insolvent debtors. The jurisdiction to deal with the claims of companies ordered to be wound up is conferred by the Indian Companies Act and to that extent the Letters Patent are modified. There is, however, no difference in the character of the original civil jurisdiction which is conferred upon the High Court by Letters Patent and the jurisdiction conferred by special Acts. When in exercise of its authority conferred by a special statute the High Court in an application presented to it as a court of first instance declares liability to pay a debt, the jurisdiction exercised is original and civil and if the exercise of that jurisdiction does not depend upon any preliminary step invoking exercise of discretion of the High Court, the jurisdiction is ordinary.10. In P. T. Munia Servai v. The Hanuman bank Ltd., Tanjore, ILR (1958) Mad 685 : (AIR 1958 Mad 418 ), a Division Bench of the Madras High Court held that the jurisdiction conferred on the High Court, by the Banking Companies Act, 1949 (X of 1949) is part of its ordinary civil jurisdiction within the meaning of Art. 183 of the Limitation Act, and an order passed in exercise of its ordinary Original Civil Jurisdiction is governed by Art. 183 and not by Art. 182 of the Limitation Act, In that case on an application preferred by the Official Liquidator of the Hanuman Bank Ltd., a direction for payment by the High Court of certain sums of money by the appellant Munia on or before a certain date was made. To an application for enforcement of that liability Art. 183 of the Limitation Act was held applicable. | 0[ds]We have not thought it necessary, having regard to the importance of the question raised by the appellants and the fact that this Court may in a proper case regularise the proceeding in this Court by granting special leave, even if certificate under Art. 133 of the Constitution could not be issued by the High Court, to hear the parties on the question as to the maintainability of the appeal on the certificate and have heard the appeal on the merits.4. We are of the view that the appeal must fail on theis true that when the Letters Patent were issued the High Court had no jurisdiction under a law relating to companies of the nature exercised by the High Court, the character whereof falls to be determined in this appeal. But by Cl. 16 of the Charter Act and Cl. 35 of the Letters Patent of the Allahabad High Court jurisdiction which was not initially conferred upon the High Court could be conferred by legislation within the competence of the Governor-General in Council and the Governor in Council. By the Companies Act of 1913, the High Court was invested with jurisdiction to order payment of the amounts due by debtors of companies ordered to be wound up.This jurisdiction may be invoked as of right against all persons whose names are placed on the list of contributories. The jurisdiction is ordinary: it does not depend on any extraordinary action on the part of the High Court. The jurisdiction is also original in character because the petition for exercise of the jurisdiction is entertainable by the High Court as a court of first instance and not in exercise of its appellate jurisdiction. Again by S. 187 no special jurisdiction is conferred. The High Court adjudicates upon the liability of the debtor to pay debts due by him to the Company : the jurisdiction is therefore civil. Normally, a creditor has to file a suit to enforce liability for payment of a debt due to him from his debtor, The Legislature has by S. 187 of the Companies Act empowered the High Court in a summary proceeding to determine the liability and to pass an order for payment, but on that account the real character of the jurisdiction exercised by the High Court is not altered. Nor is there any substance in the contention that the authority to order payment of a debt under S. 187 is merely a power of the High Court and not its jurisdiction. By S. 3 read with S. 187 of the Companies Act the High Court has jurisdiction to direct payment of the amount due by a contributory: and an order passed for payment manifestly is an order passed in exercise of the jurisdiction vested in the High Court by S. 3 read with S. 187 of the Companiesunder Cl. 18 of the Letters Patent a Judge or Judges of the High Court are to sit as a Court for relief of insolvent debtors and powers and authorities with respect to original and appellate jurisdiction are to be determined by reference to the law relating to insolvent debtors. The jurisdiction to deal with the claims of companies ordered to be wound up is conferred by the Indian Companies Act and to that extent the Letters Patent are modified. There is, however, no difference in the character of the original civil jurisdiction which is conferred upon the High Court by Letters Patent and the jurisdiction conferred by special Acts. When in exercise of its authority conferred by a special statute the High Court in an application presented to it as a court of first instance declares liability to pay a debt, the jurisdiction exercised is original and civil and if the exercise of that jurisdiction does not depend upon any preliminary step invoking exercise of discretion of the High Court, the jurisdiction isan application for enforcement of that liability Art. 183 of the Limitation Act was held applicable. | 0 | 2,535 | 698 | ### 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:
as a court of first instance and not in exercise of its appellate jurisdiction. Again by S. 187 no special jurisdiction is conferred. The High Court adjudicates upon the liability of the debtor to pay debts due by him to the Company : the jurisdiction is therefore civil. Normally, a creditor has to file a suit to enforce liability for payment of a debt due to him from his debtor, The Legislature has by S. 187 of the Companies Act empowered the High Court in a summary proceeding to determine the liability and to pass an order for payment, but on that account the real character of the jurisdiction exercised by the High Court is not altered. Nor is there any substance in the contention that the authority to order payment of a debt under S. 187 is merely a power of the High Court and not its jurisdiction. By S. 3 read with S. 187 of the Companies Act the High Court has jurisdiction to direct payment of the amount due by a contributory: and an order passed for payment manifestly is an order passed in exercise of the jurisdiction vested in the High Court by S. 3 read with S. 187 of the Companies Act.9. The Judicial Committee of the Privy Council was called upon In the matter of Candas Narrondas, ILR 13 Bom 520 (PC) to determine the true nature of the jurisdiction exercised by the High Court of judicature at Bombay in respect of insolvent debtors. The Privy Council held that Article 180 of Schedule II of the Indian Limitation Act XV of 1877 (which was similar to Article 183 of the Indian Limitation Act, 1908) applies to a judgment of a Court for the relief of insolvent debtors entered up in the High Court, in accordance with section 86 of the Statute 11 and 12 Vic., C. 21. It was held in that case that although a Court exercising insolvency jurisdiction determines the substance of the question relating to an insolvents estate, the proceedings in execution and the judgment are the High Courts. The judgment is entered up in the ordinary course of the duty cast upon the High Court by the law, not by way of special or extraordinary action, but in the exercise of its ordinary original civil jurisdiction. Lord Hobhouse delivering the judgment of the Judicial Committee observed :"But it was strongly contended at the bar that this jurisdiction though civil and original, was not ordinary; and Mr. Rigby argued that the passages of the Charter which have just been epitomised divide the jurisdiction into four classes- ordinary, original, extraordinary original, appellate and those special matters which are the subject of special and separate provisions. But their Lordships are of the opinion that the expression "ordinary jurisdiction" embraces all such as is exercised in the ordinary course of law and without any special step being necessary to assume it; and that it is opposed to extraordinary jurisdiction, which the Court may assume at its discretion on special occasions and by special orders.They are confirmed in this view by observing that, in the next group of clauses which indicate the law to be applied by the Court to the various classes of cases, there is not a fourfold division of jurisdiction, but a three-fold one, into ordinary, extraordinary, and appellate. The judgment of 1868 was entered up by the High Court, not by way of special or discretionary action, but in the ordinary course of the duty cast upon it by law, according to which every other case of the same kind would be dealt with. It was, therefore, entered up in exercise of the ordinary original civil jurisdiction of the High Court."Counsel for the appellants contended that by Cl. 18 of the Letters Patent the High Court of Bombay was invested with insolvency jurisdiction whereas the High Court of Allahabad is not invested by the Letters Patent with any jurisdiction in the matter of companies and therefore the principle of ILR 13 Bom 520 (PC), does, not apply. But under Cl. 18 of the Letters Patent a Judge or Judges of the High Court are to sit as a Court for relief of insolvent debtors and powers and authorities with respect to original and appellate jurisdiction are to be determined by reference to the law relating to insolvent debtors. The jurisdiction to deal with the claims of companies ordered to be wound up is conferred by the Indian Companies Act and to that extent the Letters Patent are modified. There is, however, no difference in the character of the original civil jurisdiction which is conferred upon the High Court by Letters Patent and the jurisdiction conferred by special Acts. When in exercise of its authority conferred by a special statute the High Court in an application presented to it as a court of first instance declares liability to pay a debt, the jurisdiction exercised is original and civil and if the exercise of that jurisdiction does not depend upon any preliminary step invoking exercise of discretion of the High Court, the jurisdiction is ordinary.10. In P. T. Munia Servai v. The Hanuman bank Ltd., Tanjore, ILR (1958) Mad 685 : (AIR 1958 Mad 418 ), a Division Bench of the Madras High Court held that the jurisdiction conferred on the High Court, by the Banking Companies Act, 1949 (X of 1949) is part of its ordinary civil jurisdiction within the meaning of Art. 183 of the Limitation Act, and an order passed in exercise of its ordinary Original Civil Jurisdiction is governed by Art. 183 and not by Art. 182 of the Limitation Act, In that case on an application preferred by the Official Liquidator of the Hanuman Bank Ltd., a direction for payment by the High Court of certain sums of money by the appellant Munia on or before a certain date was made. To an application for enforcement of that liability Art. 183 of the Limitation Act was held applicable.
### Response:
0
### Explanation:
We have not thought it necessary, having regard to the importance of the question raised by the appellants and the fact that this Court may in a proper case regularise the proceeding in this Court by granting special leave, even if certificate under Art. 133 of the Constitution could not be issued by the High Court, to hear the parties on the question as to the maintainability of the appeal on the certificate and have heard the appeal on the merits.4. We are of the view that the appeal must fail on theis true that when the Letters Patent were issued the High Court had no jurisdiction under a law relating to companies of the nature exercised by the High Court, the character whereof falls to be determined in this appeal. But by Cl. 16 of the Charter Act and Cl. 35 of the Letters Patent of the Allahabad High Court jurisdiction which was not initially conferred upon the High Court could be conferred by legislation within the competence of the Governor-General in Council and the Governor in Council. By the Companies Act of 1913, the High Court was invested with jurisdiction to order payment of the amounts due by debtors of companies ordered to be wound up.This jurisdiction may be invoked as of right against all persons whose names are placed on the list of contributories. The jurisdiction is ordinary: it does not depend on any extraordinary action on the part of the High Court. The jurisdiction is also original in character because the petition for exercise of the jurisdiction is entertainable by the High Court as a court of first instance and not in exercise of its appellate jurisdiction. Again by S. 187 no special jurisdiction is conferred. The High Court adjudicates upon the liability of the debtor to pay debts due by him to the Company : the jurisdiction is therefore civil. Normally, a creditor has to file a suit to enforce liability for payment of a debt due to him from his debtor, The Legislature has by S. 187 of the Companies Act empowered the High Court in a summary proceeding to determine the liability and to pass an order for payment, but on that account the real character of the jurisdiction exercised by the High Court is not altered. Nor is there any substance in the contention that the authority to order payment of a debt under S. 187 is merely a power of the High Court and not its jurisdiction. By S. 3 read with S. 187 of the Companies Act the High Court has jurisdiction to direct payment of the amount due by a contributory: and an order passed for payment manifestly is an order passed in exercise of the jurisdiction vested in the High Court by S. 3 read with S. 187 of the Companiesunder Cl. 18 of the Letters Patent a Judge or Judges of the High Court are to sit as a Court for relief of insolvent debtors and powers and authorities with respect to original and appellate jurisdiction are to be determined by reference to the law relating to insolvent debtors. The jurisdiction to deal with the claims of companies ordered to be wound up is conferred by the Indian Companies Act and to that extent the Letters Patent are modified. There is, however, no difference in the character of the original civil jurisdiction which is conferred upon the High Court by Letters Patent and the jurisdiction conferred by special Acts. When in exercise of its authority conferred by a special statute the High Court in an application presented to it as a court of first instance declares liability to pay a debt, the jurisdiction exercised is original and civil and if the exercise of that jurisdiction does not depend upon any preliminary step invoking exercise of discretion of the High Court, the jurisdiction isan application for enforcement of that liability Art. 183 of the Limitation Act was held applicable.
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Vijay Rambharan Patil and Others Vs. The Employees State Insurance Corporation and Others | village of Butibori with effect from 1-10-2004, and also the notice of demand issued on 8-6-2006 calling upon the employer to deposit the contribution of employer and employees both, as required by the said Act, for the period from 1 -10-2004 to 30-9-2005.2. The petitioner-Kaprecon Sleeper Works Pvt. Ltd. is engaged in the manufacture of concrete sleepers for the Railways, and its factory is established in the area of Butibori, in the precincts of Railways. By issuing the notification dated 28-9-2004 by the Ministry of Labour and Employment, Government of India, the provisions of the said Act were made applicable to the area of Butibori for the first time with effect from 1 -10-2004. Accordingly, in terms of the provisions of Section 2A of the said Act read with Regulation 10B of the Regulations, framed under the said Act, the employer was required to file a return in respect of the contribution of the employer as well as the employees, within a period of fifteen days. The applicability of the said Act was opposed by the petitioner-Company as well as the employees, and ultimately the inspection was conducted on 27-10-2005 and the order for coverage of the industry was passed on 29-11 -2005. Accordingly, the notices in question were issued calling upon the employer to pay the contribution under the said Act for the period from 1-10-2004 to 30-9-2005. Undisputedly, the petitioner-Company has complied with the provisions of the said Act from the month of October, 2005. Hence, we are not concerned with the period from October, 2005.3. The applicability of the said Act was opposed on the ground that the better medical facilities were provided by the employer to the employees. The facilities of medical insurance and the accident policy were provided by the employer and the infrastructure under the provisions of the said Act was made available immediately upon issuance of the notification in question. It is the claim of petitioners in both these petitions that none of the employees have availed the benefits and facilities of the Scheme under the provisions of the said Act during the period from 1-10-2004 to 30-9-2005.4. Shri Thakur, the learned counsel appearing for the employees, has relied upon the decisions of the Apex Court in the cases of - (i) Employees State Insurance Corporation v. Hyderabad Race Club, reported in (2004) 6 SCC 191 : [2004(5) ALL MR 949 (S.C.)]; (ii) Employees State Insurance Corpn. and others v. Jardine Henderson Staff Association and others, reported in (2006) 6 SCC 581 ; and (iii) Employees State Insurance Corpn. v. Distilleries & Chemical Mazdoor Union and others, reported in (2006) 6 SCC 604. It is urged that the recovery of contribution for the period from 1 -10-2004 to 30-9-2005 should not be insisted upon and the equitable relief is claimed on the basis of the maxim "Lex non cogit ad impossibilia". It is urged that the persons in the employment during this period have left the job or have retired or have expired and, therefore, it is not possible for the petitioner-Company to obtain the contribution from them for deposit of the amount.5. Both these petitions were admitted on 9-6-2008 and the interim relief not to take coercive action was continued on the condition that the petitioners shall file an undertaking in this Court that in the event the petition fails, the petitioners will pay the specified amount along with interest not less than 12% or as the Court may direct at the time of disposing of the petition. Accordingly, the undertaking was furnished before this Court.6. Shri Thakur and Shri Joshi, the learned counsels appearing for the petitioners in both these petitions, could not point out to us any provision under the said Act exempting the establishment of the petitioner from complying with the provisions therein on the ground that the employer has provided better medical facilities to the employees. The notification dated 28-9-2004 has made the applicability of the said Act to the establishment of the petitioner with effect from 1-10-2004. It is not necessary under the provisions of the said Act to wait for any show cause notice being issued by determining that the provisions of the said Act have become applicable to any establishment. The notification impugned is very clear and it applies to Village Butibori, where the factory of the petitioner is located. We do not find any ground to set aside the said notification or to postpone the operation of notification to any future date. The petitioner-establishment was under a statutory obligation in terms of Section 2A of the said Act read with Regulation 10B of the Regulations, framed thereunder, to submit the return and to pay the contribution of the employer as well as the employees within a period of fifteen days. It is, therefore, not possible for us either to quash and set aside such notification or to prevent recovery of the contribution for the period from 1-10-2004 to 30-9-2005.7. The petitioner-Company has brought to the notice of the employees, the applicability of the provisions of the said Act and the contribution required to be made thereunder by publishing a notice on 1-1-2005. In view of this, the argument that it has become impossible for the petitioner-Company to recover the amount of contribution from the employees, who have already left the job or have retired or have died, cannot be accepted. The fact that none of the employees have availed the benefits or that the employer has provided better medical facilities to the employees, cannot be a ground to challenge the notification. The medical facilities were made available with effect from 6-1-2005. In view of this, reliance for grant of equitable relief to the petitioners on the basis of the decisions cited, is of no consequence. The only remedy available to the petitioner-Company is to move the appropriate Government to claim exemption under the provisions of Section 87 of the said Act, and the petitioner-Company is at liberty to adopt such mode, if so advised. | 0[ds]6. Shri Thakur and Shri Joshi, the learned counsels appearing for the petitioners in both these petitions, could not point out to us any provision under the said Act exempting the establishment of the petitioner from complying with the provisions therein on the ground that the employer has provided better medical facilities to the employees. The notification dated 28-9-2004 has made the applicability of the said Act to the establishment of the petitioner with effect from 1-10-2004. It is not necessary under the provisions of the said Act to wait for any show cause notice being issued by determining that the provisions of the said Act have become applicable to any establishment. The notification impugned is very clear and it applies to Village Butibori, where the factory of the petitioner is located. We do not find any ground to set aside the said notification or to postpone the operation of notification to any future date. The petitioner-establishment was under a statutory obligation in terms of Section 2A of the said Act read with Regulation 10B of the Regulations, framed thereunder, to submit the return and to pay the contribution of the employer as well as the employees within a period of fifteen days. It is, therefore, not possible for us either to quash and set aside such notification or to prevent recovery of the contribution for the period from 1-10-2004 to 30-9-2005.The petitioner-Company has brought to the notice of the employees, the applicability of the provisions of the said Act and the contribution required to be made thereunder by publishing a notice on 1-1-2005. In view of this, the argument that it has become impossible for the petitioner-Company to recover the amount of contribution from the employees, who have already left the job or have retired or have died, cannot be accepted. The fact that none of the employees have availed the benefits or that the employer has provided better medical facilities to the employees, cannot be a ground to challenge the notification. The medical facilities were made available with effect from 6-1-2005. In view of this, reliance for grant of equitable relief to the petitioners on the basis of the decisions cited, is of no consequence. The only remedy available to the petitioner-Company is to move the appropriate Government to claim exemption under the provisions of Section 87 of the said Act, and the petitioner-Company is at liberty to adopt such mode, if so advised. | 0 | 1,218 | 441 | ### 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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village of Butibori with effect from 1-10-2004, and also the notice of demand issued on 8-6-2006 calling upon the employer to deposit the contribution of employer and employees both, as required by the said Act, for the period from 1 -10-2004 to 30-9-2005.2. The petitioner-Kaprecon Sleeper Works Pvt. Ltd. is engaged in the manufacture of concrete sleepers for the Railways, and its factory is established in the area of Butibori, in the precincts of Railways. By issuing the notification dated 28-9-2004 by the Ministry of Labour and Employment, Government of India, the provisions of the said Act were made applicable to the area of Butibori for the first time with effect from 1 -10-2004. Accordingly, in terms of the provisions of Section 2A of the said Act read with Regulation 10B of the Regulations, framed under the said Act, the employer was required to file a return in respect of the contribution of the employer as well as the employees, within a period of fifteen days. The applicability of the said Act was opposed by the petitioner-Company as well as the employees, and ultimately the inspection was conducted on 27-10-2005 and the order for coverage of the industry was passed on 29-11 -2005. Accordingly, the notices in question were issued calling upon the employer to pay the contribution under the said Act for the period from 1-10-2004 to 30-9-2005. Undisputedly, the petitioner-Company has complied with the provisions of the said Act from the month of October, 2005. Hence, we are not concerned with the period from October, 2005.3. The applicability of the said Act was opposed on the ground that the better medical facilities were provided by the employer to the employees. The facilities of medical insurance and the accident policy were provided by the employer and the infrastructure under the provisions of the said Act was made available immediately upon issuance of the notification in question. It is the claim of petitioners in both these petitions that none of the employees have availed the benefits and facilities of the Scheme under the provisions of the said Act during the period from 1-10-2004 to 30-9-2005.4. Shri Thakur, the learned counsel appearing for the employees, has relied upon the decisions of the Apex Court in the cases of - (i) Employees State Insurance Corporation v. Hyderabad Race Club, reported in (2004) 6 SCC 191 : [2004(5) ALL MR 949 (S.C.)]; (ii) Employees State Insurance Corpn. and others v. Jardine Henderson Staff Association and others, reported in (2006) 6 SCC 581 ; and (iii) Employees State Insurance Corpn. v. Distilleries & Chemical Mazdoor Union and others, reported in (2006) 6 SCC 604. It is urged that the recovery of contribution for the period from 1 -10-2004 to 30-9-2005 should not be insisted upon and the equitable relief is claimed on the basis of the maxim "Lex non cogit ad impossibilia". It is urged that the persons in the employment during this period have left the job or have retired or have expired and, therefore, it is not possible for the petitioner-Company to obtain the contribution from them for deposit of the amount.5. Both these petitions were admitted on 9-6-2008 and the interim relief not to take coercive action was continued on the condition that the petitioners shall file an undertaking in this Court that in the event the petition fails, the petitioners will pay the specified amount along with interest not less than 12% or as the Court may direct at the time of disposing of the petition. Accordingly, the undertaking was furnished before this Court.6. Shri Thakur and Shri Joshi, the learned counsels appearing for the petitioners in both these petitions, could not point out to us any provision under the said Act exempting the establishment of the petitioner from complying with the provisions therein on the ground that the employer has provided better medical facilities to the employees. The notification dated 28-9-2004 has made the applicability of the said Act to the establishment of the petitioner with effect from 1-10-2004. It is not necessary under the provisions of the said Act to wait for any show cause notice being issued by determining that the provisions of the said Act have become applicable to any establishment. The notification impugned is very clear and it applies to Village Butibori, where the factory of the petitioner is located. We do not find any ground to set aside the said notification or to postpone the operation of notification to any future date. The petitioner-establishment was under a statutory obligation in terms of Section 2A of the said Act read with Regulation 10B of the Regulations, framed thereunder, to submit the return and to pay the contribution of the employer as well as the employees within a period of fifteen days. It is, therefore, not possible for us either to quash and set aside such notification or to prevent recovery of the contribution for the period from 1-10-2004 to 30-9-2005.7. The petitioner-Company has brought to the notice of the employees, the applicability of the provisions of the said Act and the contribution required to be made thereunder by publishing a notice on 1-1-2005. In view of this, the argument that it has become impossible for the petitioner-Company to recover the amount of contribution from the employees, who have already left the job or have retired or have died, cannot be accepted. The fact that none of the employees have availed the benefits or that the employer has provided better medical facilities to the employees, cannot be a ground to challenge the notification. The medical facilities were made available with effect from 6-1-2005. In view of this, reliance for grant of equitable relief to the petitioners on the basis of the decisions cited, is of no consequence. The only remedy available to the petitioner-Company is to move the appropriate Government to claim exemption under the provisions of Section 87 of the said Act, and the petitioner-Company is at liberty to adopt such mode, if so advised.
### Response:
0
### Explanation:
6. Shri Thakur and Shri Joshi, the learned counsels appearing for the petitioners in both these petitions, could not point out to us any provision under the said Act exempting the establishment of the petitioner from complying with the provisions therein on the ground that the employer has provided better medical facilities to the employees. The notification dated 28-9-2004 has made the applicability of the said Act to the establishment of the petitioner with effect from 1-10-2004. It is not necessary under the provisions of the said Act to wait for any show cause notice being issued by determining that the provisions of the said Act have become applicable to any establishment. The notification impugned is very clear and it applies to Village Butibori, where the factory of the petitioner is located. We do not find any ground to set aside the said notification or to postpone the operation of notification to any future date. The petitioner-establishment was under a statutory obligation in terms of Section 2A of the said Act read with Regulation 10B of the Regulations, framed thereunder, to submit the return and to pay the contribution of the employer as well as the employees within a period of fifteen days. It is, therefore, not possible for us either to quash and set aside such notification or to prevent recovery of the contribution for the period from 1-10-2004 to 30-9-2005.The petitioner-Company has brought to the notice of the employees, the applicability of the provisions of the said Act and the contribution required to be made thereunder by publishing a notice on 1-1-2005. In view of this, the argument that it has become impossible for the petitioner-Company to recover the amount of contribution from the employees, who have already left the job or have retired or have died, cannot be accepted. The fact that none of the employees have availed the benefits or that the employer has provided better medical facilities to the employees, cannot be a ground to challenge the notification. The medical facilities were made available with effect from 6-1-2005. In view of this, reliance for grant of equitable relief to the petitioners on the basis of the decisions cited, is of no consequence. The only remedy available to the petitioner-Company is to move the appropriate Government to claim exemption under the provisions of Section 87 of the said Act, and the petitioner-Company is at liberty to adopt such mode, if so advised.
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Jodraj Singh Vs. State Of Rajasthan | subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted” [See also Gurpreet Singh v. State of Haryana, V (2002) SLT 231=(2002) 8 SCC 18 and Gagan Kanojia & Anr. v. State of Punjab, IX (2006) SLT 406=I (2007) CCR 89 (SC)=2006 (12) SCALE 479 ] 12. Moreover, while recording a judgment of conviction, the Court may consider a part of the deposition of a witness who had been permitted to be cross-examined by prosecution having regard to the fact situation obtaining in the said case. How the evidence adduced before it shall be appreciated by the Court would depend on the facts and circumstances of each case.13. It is trite that only because a witness, for one reason or the other, has, to some extent, resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. The Courts even in such a situation are not powerless. Keeping in view the materials available on record, it is permissible for a Court of law to rely upon a part of the testimony of the witness who has been declared hostile.14. Appellant was seen in the company of the other accused. Sufficient materials have been brought on records to establish that he participated in commission of the offence. All the accused persons came together in a tempo. They were armed with various weapons. They assaulted the deceased. The learned Sessions Judge as also the High Court found existence of a motive for commission of the offence. They left the place of occurrence together. It may be that the ultimate cause of death was found to be an assault by stone on the head of the deceased which is said to be the act of Bhupendra but only by reason thereof existence of the common intention on the part of the appellant cannot be said to be absent. 15. Reliance by the learned Counsel for the appellant on Mithu Singh v. State of Punjab, III (2001) SLT 166=II (2001) CCR 82 (SC)=(2001) 4 SCC 193 , is misplaced. Therein, no overt act was attributed to the appellant therein. The Court found that no evidence was brought on records as against him, save and except ipse dixit on the part of the witnesses. This Court, in the aforementioned fact situation, opined : “6. To substantiate a charge under Section 302 with the aid of Section 34 it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of both. Common intention has to be distinguished from same or similar intention. It is true that it is difficult, if not impossible, to collect and produce direct evidence in proof of the intention of the accused and mostly an inference as to intention shall have to be drawn from the acts or conduct of the accused or other relevant circumstances, as available. An inference as to common intention shall not be readily drawn; the culpable liability can arise only if such inference can be drawn with a certain degree of assurance. At the worst Mithu Singh, accused-appellant, knew that his co-accused Bharpur Singh was armed with a pistol. The knowledge of previous enmity existing between Bharpur Singh and the deceased can also be attributed to Mithu Singh. But there is nothing available on record to draw an inference that the co-accused Bharpur Singh had gone to the house of the deceased with the intention of causing her death and such intention was known to Mithu Singh, much less shared by him. Simply because Mithu Singh was himself armed with a pistol would not necessarily lead to an inference that he had also reached the house of the deceased or had accompanied the co-accused Bharpur Singh with the intention of causing the death of Gurdial Kaur. In our opinion, an inference as to Mithu Singh, accused-appellant having shared with Bharpur Singh a common intention of causing the murder of the deceased Gurdial Kaur cannot be drawn. His conviction under Sections 302/34, IPC cannot be sustained and must be set aside.” Such is not the position here. 16. In Vaijayanti v. State of Maharashtra, (2005) 13 SCC 134 , as regards formation of common intention, this Court opined : “Section 34 of the Indian Penal Code envisages that “when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons, is liable for that act, in the same manner as if it were done by him alone”. The underlying principle behind the said provision is joint liability of persons in doing of a criminal act which must have found in the existence of common intention of enmity in the acts in committing the criminal act in furtherance thereof. The law in this behalf is no longer res integra. There need not be a positive overt act on the part of the person concerned. Even an omission on his part to do something may attract the said provision. But it is beyond any cavil of doubt that the question must be answered having regard to the fact situation obtaining in each case.” [See also Triloki Nath and Others v. State of U.P., VIII (2005) SLT 302=IV (2005) CCR 200 (SC)=(2005) 13 SCC 323 ] 17. In Pardeep Kumar v. Union Administration, Chandigarh, VI (2006) SLT 120=III (2006) CCR 230 (SC)=(2006) 10 SCC 608 , this Court opined : “12. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.” | 0[ds]9. In both the trials, common witnesses were examined. At the cost of repetition, we may state that the first informant had supported the prosecution case in its entirety in both the trials. He has been believed.10. The High Court took up all the appeals together for hearing. The only distinctive fact in the case involving the appellant was PWs 8 and 9 turned hostile, but the same, in our opinion, would not materially alter the prosecution case, as a conviction can even be based on the testimony of a single witness. The Courts furthermore are entitled to rely upon a part of the testimony of a witness who has been permitted to be12. Moreover, while recording a judgment of conviction, the Court may consider a part of the deposition of a witness who had been permitted to beby prosecution having regard to the fact situation obtaining in the said case. How the evidence adduced before it shall be appreciated by the Court would depend on the facts and circumstances of each case.13. It is trite that only because a witness, for one reason or the other, has, to some extent, resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. The Courts even in such a situation are not powerless. Keeping in view the materials available on record, it is permissible for a Court of law to rely upon a part of the testimony of the witness who has been declared hostile.14. Appellant was seen in the company of the other accused. Sufficient materials have been brought on records to establish that he participated in commission of the offence. All the accused persons came together in a tempo. They were armed with various weapons. They assaulted the deceased. The learned Sessions Judge as also the High Court found existence of a motive for commission of the offence. They left the place of occurrence together. It may be that the ultimate cause of death was found to be an assault by stone on the head of the deceased which is said to be the act of Bhupendra but only by reason thereof existence of the common intention on the part of the appellant cannot be said to be absent. | 0 | 2,378 | 416 | ### 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:
subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted” [See also Gurpreet Singh v. State of Haryana, V (2002) SLT 231=(2002) 8 SCC 18 and Gagan Kanojia & Anr. v. State of Punjab, IX (2006) SLT 406=I (2007) CCR 89 (SC)=2006 (12) SCALE 479 ] 12. Moreover, while recording a judgment of conviction, the Court may consider a part of the deposition of a witness who had been permitted to be cross-examined by prosecution having regard to the fact situation obtaining in the said case. How the evidence adduced before it shall be appreciated by the Court would depend on the facts and circumstances of each case.13. It is trite that only because a witness, for one reason or the other, has, to some extent, resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. The Courts even in such a situation are not powerless. Keeping in view the materials available on record, it is permissible for a Court of law to rely upon a part of the testimony of the witness who has been declared hostile.14. Appellant was seen in the company of the other accused. Sufficient materials have been brought on records to establish that he participated in commission of the offence. All the accused persons came together in a tempo. They were armed with various weapons. They assaulted the deceased. The learned Sessions Judge as also the High Court found existence of a motive for commission of the offence. They left the place of occurrence together. It may be that the ultimate cause of death was found to be an assault by stone on the head of the deceased which is said to be the act of Bhupendra but only by reason thereof existence of the common intention on the part of the appellant cannot be said to be absent. 15. Reliance by the learned Counsel for the appellant on Mithu Singh v. State of Punjab, III (2001) SLT 166=II (2001) CCR 82 (SC)=(2001) 4 SCC 193 , is misplaced. Therein, no overt act was attributed to the appellant therein. The Court found that no evidence was brought on records as against him, save and except ipse dixit on the part of the witnesses. This Court, in the aforementioned fact situation, opined : “6. To substantiate a charge under Section 302 with the aid of Section 34 it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of both. Common intention has to be distinguished from same or similar intention. It is true that it is difficult, if not impossible, to collect and produce direct evidence in proof of the intention of the accused and mostly an inference as to intention shall have to be drawn from the acts or conduct of the accused or other relevant circumstances, as available. An inference as to common intention shall not be readily drawn; the culpable liability can arise only if such inference can be drawn with a certain degree of assurance. At the worst Mithu Singh, accused-appellant, knew that his co-accused Bharpur Singh was armed with a pistol. The knowledge of previous enmity existing between Bharpur Singh and the deceased can also be attributed to Mithu Singh. But there is nothing available on record to draw an inference that the co-accused Bharpur Singh had gone to the house of the deceased with the intention of causing her death and such intention was known to Mithu Singh, much less shared by him. Simply because Mithu Singh was himself armed with a pistol would not necessarily lead to an inference that he had also reached the house of the deceased or had accompanied the co-accused Bharpur Singh with the intention of causing the death of Gurdial Kaur. In our opinion, an inference as to Mithu Singh, accused-appellant having shared with Bharpur Singh a common intention of causing the murder of the deceased Gurdial Kaur cannot be drawn. His conviction under Sections 302/34, IPC cannot be sustained and must be set aside.” Such is not the position here. 16. In Vaijayanti v. State of Maharashtra, (2005) 13 SCC 134 , as regards formation of common intention, this Court opined : “Section 34 of the Indian Penal Code envisages that “when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons, is liable for that act, in the same manner as if it were done by him alone”. The underlying principle behind the said provision is joint liability of persons in doing of a criminal act which must have found in the existence of common intention of enmity in the acts in committing the criminal act in furtherance thereof. The law in this behalf is no longer res integra. There need not be a positive overt act on the part of the person concerned. Even an omission on his part to do something may attract the said provision. But it is beyond any cavil of doubt that the question must be answered having regard to the fact situation obtaining in each case.” [See also Triloki Nath and Others v. State of U.P., VIII (2005) SLT 302=IV (2005) CCR 200 (SC)=(2005) 13 SCC 323 ] 17. In Pardeep Kumar v. Union Administration, Chandigarh, VI (2006) SLT 120=III (2006) CCR 230 (SC)=(2006) 10 SCC 608 , this Court opined : “12. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.”
### Response:
0
### Explanation:
9. In both the trials, common witnesses were examined. At the cost of repetition, we may state that the first informant had supported the prosecution case in its entirety in both the trials. He has been believed.10. The High Court took up all the appeals together for hearing. The only distinctive fact in the case involving the appellant was PWs 8 and 9 turned hostile, but the same, in our opinion, would not materially alter the prosecution case, as a conviction can even be based on the testimony of a single witness. The Courts furthermore are entitled to rely upon a part of the testimony of a witness who has been permitted to be12. Moreover, while recording a judgment of conviction, the Court may consider a part of the deposition of a witness who had been permitted to beby prosecution having regard to the fact situation obtaining in the said case. How the evidence adduced before it shall be appreciated by the Court would depend on the facts and circumstances of each case.13. It is trite that only because a witness, for one reason or the other, has, to some extent, resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. The Courts even in such a situation are not powerless. Keeping in view the materials available on record, it is permissible for a Court of law to rely upon a part of the testimony of the witness who has been declared hostile.14. Appellant was seen in the company of the other accused. Sufficient materials have been brought on records to establish that he participated in commission of the offence. All the accused persons came together in a tempo. They were armed with various weapons. They assaulted the deceased. The learned Sessions Judge as also the High Court found existence of a motive for commission of the offence. They left the place of occurrence together. It may be that the ultimate cause of death was found to be an assault by stone on the head of the deceased which is said to be the act of Bhupendra but only by reason thereof existence of the common intention on the part of the appellant cannot be said to be absent.
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Jai Kishan Dass and Others Vs. Smt. Nirmala Devi and Others | 1. After hearing counsel for the appellants at some length as also counsel for the respondents for some time, we are satisfied that there is no substance in the appeal.2. In our opinion, the High Court was right in taking the view that the present suit (out of which the appeal has arisen) filed by the appellants for a declaration that they were members of the larger joint Hindu family of Pannalal Girdharlal and as such were entitled to a share in the joint family business and the properties of such larger joint Hindu family was barred by res judicata by reason of the decisions in the earlier litigations between the parties and / or their predecessors. It appears that in the years 1940-41 there was a general disruption in the larger joint Hindu family whereafter the erstwhile joint family business was carried on by five brothers as partners under the firm name and style of M/s. Pannalal Girdharlal. Since the appellant Jai Kishan Dass (son of Bal Kishan Dass, being one of the five brothers) started interfering and inter-meddling with the firms business, the partnership firm M/s. Pannalal Girdharlal filed suit No. 338 of 1957 against the appellant for an injunction restraining him from causing such interference and the appellant had raised a contention that business belonged to the larger joint Hindu family of five brothers (including his own father) and that the larger joint Hindu family subsisted and as such he had a right to participate in the family business and on such rival contentions specific issues arose in that suit as to whether there was a disruption in the family of five brothers in the year 1940-41 and whether thereafter the joint family business was converted into a partnership business of the said five brothers and a clear-cut finding was recorded by all the three courts (including the High Court which decided Second Appeal, being R.S.A. No. 89D/64) that there was such disruption of the larger joint Hindu family as a result whereof the five brothers had separated from each other, who remained as heads of each ones individual joint family and that thereafter the family business was carried on by them as partners. Such a finding was necessitated by reason of specific contentions raised by the present appellant 1 before those courts and, therefore, that finding must operate as res judicata so far as the instant suit is concerned in which a declaration was sought by the appellants that there existed still the larger joint Hindu Family and to the extent to which the appellants sought partition of a share in such larger joint Hindu family. Apart from this litigation there was another earlier litigation between the parties to which not the present appellant 1 but his father Bal Kishan Dass was a party which resulted in an award decree being made as a result whereof partition by metes and bounds came to be effected. But apart from this aspect of partition having been effected by metes and bounds at a later stage, the initial finding recorded in suit No. 338 of 1957 that there had been a disruption in the larger joint Hindu family amongst the five brothers in the year 1940-41 is sufficient to bar the instant suit of the nature filed by the appellants in the case.3. In view of above we confirm the conclusion arrived at by the High Court on the issue of res judicata and as such the present appeal deserves to be dismissed.4. It is, however, made clear that it would be open to appellant 1 to proceed with the suit against his own father and to take such steps as may be advised in that suit and obtain appropriate reliefs therein.5. | 0[ds]1. After hearing counsel for the appellants at some length as also counsel for the respondents for some time, we are satisfied that there is no substance in the appeal.2. In our opinion, the High Court was right in taking the view that the present suit (out of which the appeal has arisen) filed by the appellants for a declaration that they were members of the larger joint Hindu family of Pannalal Girdharlal and as such were entitled to a share in the joint family business and the properties of such larger joint Hindu family was barred by res judicata by reason of the decisions in the earlier litigations between the parties and / or their predecessors. | 0 | 658 | 128 | ### 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:
1. After hearing counsel for the appellants at some length as also counsel for the respondents for some time, we are satisfied that there is no substance in the appeal.2. In our opinion, the High Court was right in taking the view that the present suit (out of which the appeal has arisen) filed by the appellants for a declaration that they were members of the larger joint Hindu family of Pannalal Girdharlal and as such were entitled to a share in the joint family business and the properties of such larger joint Hindu family was barred by res judicata by reason of the decisions in the earlier litigations between the parties and / or their predecessors. It appears that in the years 1940-41 there was a general disruption in the larger joint Hindu family whereafter the erstwhile joint family business was carried on by five brothers as partners under the firm name and style of M/s. Pannalal Girdharlal. Since the appellant Jai Kishan Dass (son of Bal Kishan Dass, being one of the five brothers) started interfering and inter-meddling with the firms business, the partnership firm M/s. Pannalal Girdharlal filed suit No. 338 of 1957 against the appellant for an injunction restraining him from causing such interference and the appellant had raised a contention that business belonged to the larger joint Hindu family of five brothers (including his own father) and that the larger joint Hindu family subsisted and as such he had a right to participate in the family business and on such rival contentions specific issues arose in that suit as to whether there was a disruption in the family of five brothers in the year 1940-41 and whether thereafter the joint family business was converted into a partnership business of the said five brothers and a clear-cut finding was recorded by all the three courts (including the High Court which decided Second Appeal, being R.S.A. No. 89D/64) that there was such disruption of the larger joint Hindu family as a result whereof the five brothers had separated from each other, who remained as heads of each ones individual joint family and that thereafter the family business was carried on by them as partners. Such a finding was necessitated by reason of specific contentions raised by the present appellant 1 before those courts and, therefore, that finding must operate as res judicata so far as the instant suit is concerned in which a declaration was sought by the appellants that there existed still the larger joint Hindu Family and to the extent to which the appellants sought partition of a share in such larger joint Hindu family. Apart from this litigation there was another earlier litigation between the parties to which not the present appellant 1 but his father Bal Kishan Dass was a party which resulted in an award decree being made as a result whereof partition by metes and bounds came to be effected. But apart from this aspect of partition having been effected by metes and bounds at a later stage, the initial finding recorded in suit No. 338 of 1957 that there had been a disruption in the larger joint Hindu family amongst the five brothers in the year 1940-41 is sufficient to bar the instant suit of the nature filed by the appellants in the case.3. In view of above we confirm the conclusion arrived at by the High Court on the issue of res judicata and as such the present appeal deserves to be dismissed.4. It is, however, made clear that it would be open to appellant 1 to proceed with the suit against his own father and to take such steps as may be advised in that suit and obtain appropriate reliefs therein.5.
### Response:
0
### Explanation:
1. After hearing counsel for the appellants at some length as also counsel for the respondents for some time, we are satisfied that there is no substance in the appeal.2. In our opinion, the High Court was right in taking the view that the present suit (out of which the appeal has arisen) filed by the appellants for a declaration that they were members of the larger joint Hindu family of Pannalal Girdharlal and as such were entitled to a share in the joint family business and the properties of such larger joint Hindu family was barred by res judicata by reason of the decisions in the earlier litigations between the parties and / or their predecessors.
|
Hasmukhalal Dahayabhai & Ors. Etc. Etc Vs. State Of Gujarat | in such a way "that the lands selected for such continuance shall be in the same proportion in which lands held by each spouse before furnishing the relevant statement were under sub-sect ion (1) of Section 10. The reduction in their holdings would, therefore, be proportionate to the areas of lands held separately but brought together only for the purposes of determining the: ceiling limit for the family. The whole object of the process prescribed seems to be that families, as contemplated by the Act, should be units for merely determination of ceilings for each member of a family.11. Appellants relied on Kunjukutty Sahib etc. etc. v. State of Kerala &Anr.([1973] 1 S.C.R.326 @ 341) where it was held by this Court (at p. 314):"It was not disputed that the ceiling limit fixed by the amended Act was within the competence of the legislature to fix; nor was it contended that the ceiling fixed by the original unamended Act by itself debarred the legislature from further reducing the ceiling limit so fixed. Prior to the amendment undoubtedly no land within the personal cultivation of the holder under the unamended Act within t he ceiling limit fixed thereby could be acquired without payment of compensation according to the market value, but once ceiling limit was changed by the amended Act the second Proviso to Art. 31A (1) must be held to refer only to the new ceiling limit fixed by the amended Act. The ceiling limit originally fixed ceased to exist for future the moment it was replaced by the amended Act. The prohibition contained in the second proviso operates only within the ceiling limit fixed under the existing law, at the given time. It is true that the new ceiling limit was fixed contemporaneously with the acquisition of the land in excess of that ceiling limit. But it was not contended that a law so fixing the ceiling limit and acquiring the land in excess would offend any provision of the Constitution".Pritam Singh v. State of Punjab &Ors.([1967] 2 S.C.R.p. 536.) was also cited on behalf of the appellants. Here the contention, amongst others, was repelled that, b y adding land transferred to certain relations to that held by a person under his person- al cultivation, for the purpose of determining his ceiling area and the surplus left, under the provisions of the Pepsu Tenancy and Agricultural Lands Act, 1955, as amended by a subsequent Act, rights guaranteed by the second proviso to Article 31A(1) were contravened. This case certainly does not lay down that the ceiling limit applicable to each individual must be uniform or that it must be contained in a single statutory provision directly dealing with ceiling limits. It follows that the ceiling limit may vary from individual to individual. These varying limits may result from the combined effect of several provisions. The prescription of different ceiling limits for different individuals, differently circumstanced, could be enacted directly by a single provision dealing with individual celling limits, or, alternatively, it could be the consequence of several provisions dealing with differing sets of circum- stances. No law known to us has ever laid down that the intention of the law makers on a particular subject must necessarily transpire from a single statutory provision or statutory provisions dealing directly with a particular aspect. To read any such limit into the 2nd proviso to Article 31A(1) of the Constitution would be to accept a novel restriction on legislative competence. We have no doubt that no such restriction could be found in the 2nd proviso to Article 31 A ( 1 ) of the Constitution.12. It was urged that Article 31A(1) and 3lB of the Constitution operate in different fields of legislation. Whereas Article 3 IA( 1 ) cures certain possible invalidities in ordinary legislation, arising from its. inconsistencies with Articles 14 or 19 or 31 of the Constitution, Article 3lB cures a wider range of infirmities arising from conflict with any of the provisions of Part III of the Constitution and necessitates a constitutional amendment so as to protect an impugned legislation by its inclusion in the 9th Schedule to the Constitution. Legislation protected by Article 31A o f the Constitution would fall under appropriate legislative entries in the 7th Schedule. But, to secure the protection of Article 3lB of the Constitution, resort to the provisions of Article 368 of the Constitution is imperative. These differences do not mean that legislation falling under any part of Article 31A(1) of the Constitution, including the provisos, cannot receive also the protection contemplated by Article 3lB of the Constitution. There is nothing in our Constitution to bar any statute from receiving a dual protection, so to speak, of both Article 31A(1) and 3lB of the Constitution if the conditions of each are satisfied.It is clear to us that the proviso to Article 31A(1) of the Constitution confers certain rights upon individuals and protects them from -constitutionally illegal invasion. We are, therefore, unable to accept the argument advanced on behalf of the appellants that the "protective umbrella" of Article 3lB does not shield the impugned provisions , against an attack based upon the limits imposed by the second proviso to Article 31A(1) on legisl ative power. The argument overlooks certain obvious answers: firstly, that limits on legislative powers, imposed by Part III of the Constitution, do have the direct result of protecting individual rights; and, secondl y, that no part of the second proviso to Article 31 (1) of the Constitution was, as already pointed out above, infringed by the impugned provisions; and, thirdly, even if one were to assume, for the sake of argument, that rights conferred on individuals by the 2nd proviso to Article 31 (1), were infringed in any way, pro. visions of Article 31B of the Constitution are enough to repel an attack based upon such an alleged infringement. Both Article 31A(1) and 31B are intended to operate as protections against consequences of what could otherwise be breaches of the Constitution.13. | 0[ds]We do not find any fixed concept of "person" anywhere. No .doubt the concept is wide so that it could be contended that it should not be narrowed down or confined, But does Section 6 (2) do that? Section 6 (2) does not either disable a husband or wife from owning or holding their separate properties separately. It does not merge or destroy their separate legal personailties. It requires their separate holdings to be grouped together as though they were held by one person only for the purpose of determining the ceiling limit for each member of a family. It may indirectly have the effect of disabling a member of a family from holding land upto the prescribed ceiling limit for a person holding as an individual. In other words, the result is that such a member of a family will have to be content with a holding less than that of an unmarried individual. It has the effect of making it clear that what have to be grouped together are the separate properties of individuals belonging to families other than what are "joint families", in law. It takes in and applies to members of families other than undivided Hindu families. It means that married persons and their minor children will have to be viewed as though they hold one lot together even though they retain their separate legal personalities and remain competent owners of their separate holdings. It does not affect either their legal status or competence. It does reduce their individual holdings. But, we do not find any prohibition enacted by the second proviso to Article 31A(1) against different ceiling limits prescribed for various individuals or classes of individuals differently situated. Nor does the second proviso to Article 31A(1) prescribe any particular or direct more of imposing different ceilings on individuals differently circumstanced.A glance at the provisions of Section 20 of the Act shows that separate rights to properties grouped together for purposes of computation only do not vanish. On the other hand, each holder of such separate rights above the ceiling , limit is permitted to select the property he or she wishes to continue to hold in such a way "that the lands selected for such continuance shall be in the same proportion in which lands held by each spouse before furnishing the relevant statement were under sub-sect ion (1) of Section 10. The reduction in their holdings would, therefore, be proportionate to the areas of lands held separately but brought together only for the purposes of determining the: ceiling limit for the family. The whole object of the process prescribed seems to be that families, as contemplated by the Act, should be units for merely determination of ceilings for each member of awas urged that Article 31A(1) and 3lB of the Constitution operate in different fields of legislation. Whereas Article 3 IA( 1 ) cures certain possible invalidities in ordinary legislation, arising from its. inconsistencies with Articles 14 or 19 or 31 of the Constitution, Article 3lB cures a wider range of infirmities arising from conflict with any of the provisions of Part III of the Constitution and necessitates a constitutional amendment so as to protect an impugned legislation by its inclusion in the 9th Schedule to the Constitution. Legislation protected by Article 31A o f the Constitution would fall under appropriate legislative entries in the 7th Schedule. But, to secure the protection of Article 3lB of the Constitution, resort to the provisions of Article 368 of the Constitution is imperative. These differences do not mean that legislation falling under any part of Article 31A(1) of the Constitution, including the provisos, cannot receive also the protection contemplated by Article 3lB of the Constitution. There is nothing in our Constitution to bar any statute from receiving a dual protection, so to speak, of both Article 31A(1) and 3lB of the Constitution if the conditions of each are satisfied.It is clear to us that the proviso to Article 31A(1) of the Constitution confers certain rights upon individuals and protects them from -constitutionally illegal invasion. We are, therefore, unable to accept the argument advanced on behalf of the appellants that the "protective umbrella" of Article 3lB does not shield the impugned provisions , against an attack based upon the limits imposed by the second proviso to Article 31A(1) on legisl ative power. The argument overlooks certain obvious answers: firstly, that limits on legislative powers, imposed by Part III of the Constitution, do have the direct result of protecting individual rights; and, secondl y, that no part of the second proviso to Article 31 (1) of the Constitution was, as already pointed out above, infringed by the impugned provisions; and, thirdly, even if one were to assume, for the sake of argument, that rights conferred on individuals by the 2nd proviso to Article 31 (1), were infringed in any way, pro. visions of Article 31B of the Constitution are enough to repel an attack based upon such an alleged infringement. Both Article 31A(1) and 31B are intended to operate as protections against consequences of what could otherwise be breaches of the Constitution. | 0 | 3,971 | 963 | ### 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:
in such a way "that the lands selected for such continuance shall be in the same proportion in which lands held by each spouse before furnishing the relevant statement were under sub-sect ion (1) of Section 10. The reduction in their holdings would, therefore, be proportionate to the areas of lands held separately but brought together only for the purposes of determining the: ceiling limit for the family. The whole object of the process prescribed seems to be that families, as contemplated by the Act, should be units for merely determination of ceilings for each member of a family.11. Appellants relied on Kunjukutty Sahib etc. etc. v. State of Kerala &Anr.([1973] 1 S.C.R.326 @ 341) where it was held by this Court (at p. 314):"It was not disputed that the ceiling limit fixed by the amended Act was within the competence of the legislature to fix; nor was it contended that the ceiling fixed by the original unamended Act by itself debarred the legislature from further reducing the ceiling limit so fixed. Prior to the amendment undoubtedly no land within the personal cultivation of the holder under the unamended Act within t he ceiling limit fixed thereby could be acquired without payment of compensation according to the market value, but once ceiling limit was changed by the amended Act the second Proviso to Art. 31A (1) must be held to refer only to the new ceiling limit fixed by the amended Act. The ceiling limit originally fixed ceased to exist for future the moment it was replaced by the amended Act. The prohibition contained in the second proviso operates only within the ceiling limit fixed under the existing law, at the given time. It is true that the new ceiling limit was fixed contemporaneously with the acquisition of the land in excess of that ceiling limit. But it was not contended that a law so fixing the ceiling limit and acquiring the land in excess would offend any provision of the Constitution".Pritam Singh v. State of Punjab &Ors.([1967] 2 S.C.R.p. 536.) was also cited on behalf of the appellants. Here the contention, amongst others, was repelled that, b y adding land transferred to certain relations to that held by a person under his person- al cultivation, for the purpose of determining his ceiling area and the surplus left, under the provisions of the Pepsu Tenancy and Agricultural Lands Act, 1955, as amended by a subsequent Act, rights guaranteed by the second proviso to Article 31A(1) were contravened. This case certainly does not lay down that the ceiling limit applicable to each individual must be uniform or that it must be contained in a single statutory provision directly dealing with ceiling limits. It follows that the ceiling limit may vary from individual to individual. These varying limits may result from the combined effect of several provisions. The prescription of different ceiling limits for different individuals, differently circumstanced, could be enacted directly by a single provision dealing with individual celling limits, or, alternatively, it could be the consequence of several provisions dealing with differing sets of circum- stances. No law known to us has ever laid down that the intention of the law makers on a particular subject must necessarily transpire from a single statutory provision or statutory provisions dealing directly with a particular aspect. To read any such limit into the 2nd proviso to Article 31A(1) of the Constitution would be to accept a novel restriction on legislative competence. We have no doubt that no such restriction could be found in the 2nd proviso to Article 31 A ( 1 ) of the Constitution.12. It was urged that Article 31A(1) and 3lB of the Constitution operate in different fields of legislation. Whereas Article 3 IA( 1 ) cures certain possible invalidities in ordinary legislation, arising from its. inconsistencies with Articles 14 or 19 or 31 of the Constitution, Article 3lB cures a wider range of infirmities arising from conflict with any of the provisions of Part III of the Constitution and necessitates a constitutional amendment so as to protect an impugned legislation by its inclusion in the 9th Schedule to the Constitution. Legislation protected by Article 31A o f the Constitution would fall under appropriate legislative entries in the 7th Schedule. But, to secure the protection of Article 3lB of the Constitution, resort to the provisions of Article 368 of the Constitution is imperative. These differences do not mean that legislation falling under any part of Article 31A(1) of the Constitution, including the provisos, cannot receive also the protection contemplated by Article 3lB of the Constitution. There is nothing in our Constitution to bar any statute from receiving a dual protection, so to speak, of both Article 31A(1) and 3lB of the Constitution if the conditions of each are satisfied.It is clear to us that the proviso to Article 31A(1) of the Constitution confers certain rights upon individuals and protects them from -constitutionally illegal invasion. We are, therefore, unable to accept the argument advanced on behalf of the appellants that the "protective umbrella" of Article 3lB does not shield the impugned provisions , against an attack based upon the limits imposed by the second proviso to Article 31A(1) on legisl ative power. The argument overlooks certain obvious answers: firstly, that limits on legislative powers, imposed by Part III of the Constitution, do have the direct result of protecting individual rights; and, secondl y, that no part of the second proviso to Article 31 (1) of the Constitution was, as already pointed out above, infringed by the impugned provisions; and, thirdly, even if one were to assume, for the sake of argument, that rights conferred on individuals by the 2nd proviso to Article 31 (1), were infringed in any way, pro. visions of Article 31B of the Constitution are enough to repel an attack based upon such an alleged infringement. Both Article 31A(1) and 31B are intended to operate as protections against consequences of what could otherwise be breaches of the Constitution.13.
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We do not find any fixed concept of "person" anywhere. No .doubt the concept is wide so that it could be contended that it should not be narrowed down or confined, But does Section 6 (2) do that? Section 6 (2) does not either disable a husband or wife from owning or holding their separate properties separately. It does not merge or destroy their separate legal personailties. It requires their separate holdings to be grouped together as though they were held by one person only for the purpose of determining the ceiling limit for each member of a family. It may indirectly have the effect of disabling a member of a family from holding land upto the prescribed ceiling limit for a person holding as an individual. In other words, the result is that such a member of a family will have to be content with a holding less than that of an unmarried individual. It has the effect of making it clear that what have to be grouped together are the separate properties of individuals belonging to families other than what are "joint families", in law. It takes in and applies to members of families other than undivided Hindu families. It means that married persons and their minor children will have to be viewed as though they hold one lot together even though they retain their separate legal personalities and remain competent owners of their separate holdings. It does not affect either their legal status or competence. It does reduce their individual holdings. But, we do not find any prohibition enacted by the second proviso to Article 31A(1) against different ceiling limits prescribed for various individuals or classes of individuals differently situated. Nor does the second proviso to Article 31A(1) prescribe any particular or direct more of imposing different ceilings on individuals differently circumstanced.A glance at the provisions of Section 20 of the Act shows that separate rights to properties grouped together for purposes of computation only do not vanish. On the other hand, each holder of such separate rights above the ceiling , limit is permitted to select the property he or she wishes to continue to hold in such a way "that the lands selected for such continuance shall be in the same proportion in which lands held by each spouse before furnishing the relevant statement were under sub-sect ion (1) of Section 10. The reduction in their holdings would, therefore, be proportionate to the areas of lands held separately but brought together only for the purposes of determining the: ceiling limit for the family. The whole object of the process prescribed seems to be that families, as contemplated by the Act, should be units for merely determination of ceilings for each member of awas urged that Article 31A(1) and 3lB of the Constitution operate in different fields of legislation. Whereas Article 3 IA( 1 ) cures certain possible invalidities in ordinary legislation, arising from its. inconsistencies with Articles 14 or 19 or 31 of the Constitution, Article 3lB cures a wider range of infirmities arising from conflict with any of the provisions of Part III of the Constitution and necessitates a constitutional amendment so as to protect an impugned legislation by its inclusion in the 9th Schedule to the Constitution. Legislation protected by Article 31A o f the Constitution would fall under appropriate legislative entries in the 7th Schedule. But, to secure the protection of Article 3lB of the Constitution, resort to the provisions of Article 368 of the Constitution is imperative. These differences do not mean that legislation falling under any part of Article 31A(1) of the Constitution, including the provisos, cannot receive also the protection contemplated by Article 3lB of the Constitution. There is nothing in our Constitution to bar any statute from receiving a dual protection, so to speak, of both Article 31A(1) and 3lB of the Constitution if the conditions of each are satisfied.It is clear to us that the proviso to Article 31A(1) of the Constitution confers certain rights upon individuals and protects them from -constitutionally illegal invasion. We are, therefore, unable to accept the argument advanced on behalf of the appellants that the "protective umbrella" of Article 3lB does not shield the impugned provisions , against an attack based upon the limits imposed by the second proviso to Article 31A(1) on legisl ative power. The argument overlooks certain obvious answers: firstly, that limits on legislative powers, imposed by Part III of the Constitution, do have the direct result of protecting individual rights; and, secondl y, that no part of the second proviso to Article 31 (1) of the Constitution was, as already pointed out above, infringed by the impugned provisions; and, thirdly, even if one were to assume, for the sake of argument, that rights conferred on individuals by the 2nd proviso to Article 31 (1), were infringed in any way, pro. visions of Article 31B of the Constitution are enough to repel an attack based upon such an alleged infringement. Both Article 31A(1) and 31B are intended to operate as protections against consequences of what could otherwise be breaches of the Constitution.
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SRI KRISHNA PVT. LTD. ETC Vs. INCOME TAX OFFICER AND OTHERS | decisions of this Court in Chhugamal Rajpal Vs. S.P. Chaliha and Others, Income tax Officer, Calcutta and Others Vs. Lakhmani Mewal Das, and The Commissioner of Income Tax, Calcutta Vs. Burlop Dealers Ltd., as laying down propositions contrary to those laid down in Phool Chand Bajranglal (supra). We cannot agree. The principle is well-settled by Calcutta Discount (supra) and it is not reasonable to suggest that any different proposition was sought to be enunciated in the said decisions. Calcutta Discount (supra) emphasises repeatedly the assessees obligation to disclose all material facts necessary for his assessment fully and truly in the context of the two requirements - called conditions precedent which must be satisfied before the ITO gets the jurisdiction to reopen the assessment under s. 147/148. This obligation can neither be ignored nor watered down. Nor can anyone suggest that a false disclosure satisfies the requirement of full and true disclosure. All the requirements stipulated by s. 147 must be given due and equal weight. Finality of proceedings is certainly a consideration but that avails one who has fully and truly disclosed all material facts necessary for his assessment for that year - and not to others. All the decisions relied upon by Sri Gupta have been elaborately discussed and distinguished in Phool Chand Bajranglal (supra) and we fully agree with the same. We think it unnecessary to repeat those reasons. In particular, we agree with the reasons given in Phool Chand Bajranglal (supra) for holding that the decision of this Court in Burlop Dealers (supra) must be confined to the particular fact-situation of that case and that it cannot be construed to be of universal application irrespective of the facts and circumstances of the case before the Court. 8. It is brought to our notice that certain other decisions of this Court have rightly emphasised the requirement of full and true disclosure and have held that failure or omission to do so, legitimately attracts the power under s. 147. In Inspecting Assistant Commissioner of Income Tax Vs. V.I.P. Industries Ltd., , a three-Judge Bench had this to say : After hearing learned counsel for both the parties, we are unable to uphold the order of the High Court. It appears that, subsequently, facts have come to the notice of the IT Department that the facts disclosed in the return are not a true and correct declaration of facts. In that view of the matter, we set aside the order of the High Court passed in Writ Petn. No. 1634 of 1988 with Writ Petn. No. 2919 of 1988 V.I.P. Industries Ltd. Vs. Inspecting Assistant Commissioner and another, ], and send the case back on remand to the ITO for a decision in accordance with law after giving an opportunity of hearing to the parties concerned. The special leave petitions are disposed of. In Central Provinces Manganese Ore Co. Ltd. Vs. I.-T.O., Nagpur, again, this Court observed : The only question which arises for our consideration is as to whether the two conditions required to confer jurisdiction on the ITO under s. 147(a) of the act have been satisfied in this case. The first is that the ITO must have reason to believe that the income chargeable to income tax had been under-assessed and the second that such under-assessment has occurred by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year 1953-54. So far as the first condition is concerned, the ITO, in his recorded reasons, has relied upon the fact as found by the Customs authorities that the appellant had under-invoiced the goods it exported. It is no doubt correct that the said finding may not be binding upon the IT authorities but it can be a valid reason to believe that the chargeable income has been under-assessed. The final outcome of the proceedings is not relevant. What is relevant is the existence of reasons to make the ITO believe that there has been under-assessment of the assessees income for a particular year. We are satisfied that the first condition to invoke the jurisdiction of the ITO under s. 147(a) of the act was satisfied. As regards the second condition, the appellant did not produce the books of account kept by them at their head office in London nor the original contracts of sale which were entered into at London with the buyers. The appellant did not produce before the ITO any of the accounts which related to the foreign buyers. No reasons were given for the supply of manganese ore at a rate lower than the market rate. It is for the assessee to disclose all the primary facts before the ITO to enable him to account for the true income of the assessee. The proven charge of under-invoicing per se satisfied the second condition. The appellants assessable income has to be determined on the basis of the price received by it for the goods exported. If the true price has not been disclosed and there was under-invoicing, the logical conclusion prima facie is that there has been failure on the part of the appellant to disclose fully and truly all material facts before the ITO. We are, therefore, satisfied that both the conditions required to attract the provisions of s. 147(a) have been complied with in this case. In Income Tax Officer, Azamgarh and Another Vs. Mewalal Dwarka Prasad, , this Court held that if the notice issued under s. 148 is good in respect of one item, it cannot be quashed under Art. 226 on the ground that it may not be valid in respect of some other items. We need not, however, dilate on this aspect for the reason that no argument has been urged before us to the effect that since the notice under s. 148 is found to be justifiable in respect of some loans disclosed and not with respect to other loans, it is invalid. | 0[ds]Sec. 139 places an obligation upon every person to furnish voluntarily a return of his total income if such income during the previous year exceeded the maximum amount which is not chargeable to income tax. The obligation so placed involves the further obligation to disclose all material facts necessary for his assessment for that year fully and truly. If at any subsequent point of time, it is found that either on account of an omission or failure of the assessee to file the return or on account of his omission or failure to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, the ITO is entitled to reopen the assessment in accordance with the procedure prescribed by the Act. To be more precise, he can issue the notice under s. 148 proposing to reopen the assessment only where he has reason to believe that on account of either the omission or failure on the part of the assessee to file the return or on account of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that year, income has escaped assessment. The existence of the reason(s) to believe is supposed to be the check, a limitation, upon his power to reopen the assessment. [See the leading decision on this subject in The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, Sec. 148(2) imposes a further check upon the said power, viz., the requirement of recording of reasons for such reopening by the ITO. Sec. 151 imposes yet another check upon the said power, viz., the CIT or the Board, as the case may be, has to be satisfied, on the basis of the reasons recorded by the ITO, that it is a fit case for issuance of such a notice. The power conferred upon the ITO by ss. 147 and 148 is thus not an unbridled one. It is hedged in with several safeguards conceived in the interest of eliminating room for abuse of this power by the AOs. The idea was to save the assessees from harassment resulting from mechanical reopening of assessment but this protection avails only those assessees who disclose all material facts truly and fully.In the reasons recorded by the ITO [as required by s. 148(2)], he had stated clearly that in the course of assessment proceedings for the succeeding assessment year, it was found that out of the unsecured hundi loans put forward by the assessee, a large number were found to be bogus and that many of the so-called lenders were found to be near relations of the directors or the principal shareholders. He stated that similar loans are also noticed for the asst. yr. 1959-60 and, therefore, he has reason to believe that there has been no true and full disclosure of all material facts by the assessee for the asst. yr. 1959-60 leading to escapement of income. It is not alleged by the assessee that the ITO had not checked up or tallied the names of the alleged lenders for both the assessment years and that he merely went by the fact that there were unsecured hundi loans for both the assessment years. In the absence of any such allegation - which allegation, if made, could have afforded an opportunity to the ITO to answer the said averment - we must presume that the ITO did find that a large number of alleged lenders who were found to be bogus during the asst. yr. 1960-61 were also put forward as lenders during the asst. yr. 1959-60 as well. Evidently, this is what he meant in the context, when he spoke of similar loans being noticed for the year in question as well. In such a situation, it is impossible to say that the ITO had no reasonable ground to believe that there has been no full and true disclosure of all material facts by the assessee during the relevant assessment year and that on that account, income chargeable to tax had escaped assessment. As we shall emphasise hereinafter, every disclosure is not and cannot be treated to be a true and full disclosure. A disclosure may be a false one or true one. It may be a full disclosure or it may not be. A partial disclosure may very often be a misleading one. What is required is a full and true disclosure of all material facts necessary for making assessment for that year. This calls for an examination of the decisions of this Court analysing and elucidating ss. 147 and 148 of the Act.5. The first and foremost is the decision of the Constitution Bench in Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, The case arose under s. 34 of the IT act [as amended in 1951]. In material particulars, the provisions in s. 34 were similar to those in s. 147. Having regard to the fact that it is the only Constitution Bench decision on the point, it is necessary to examine it in some detail. The Constitution Bench explained the purport of s. 34 in the following word :To confer jurisdiction under this section to issue notice in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year two conditions have, therefore, to be satisfied. The first is that the ITO must have reason to believe that income, profits or gains chargeable to income tax have been under-assessed. The second is that he must have also reason to believe that such under-assessment has occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under s. 22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the ITO could have jurisdiction to issue a notice for the assessment or reassessment beyond the period of four years, but within the period of eight years, from the end of the year in question..... The words used are omission or failure to disclose fully and truly all material facts necessary for his assessment for that year. It postulates a duty on every assessee to disclose fully and truly all material facts necessary for his assessment. What facts are material and necessary for assessment will differ from case to case. In every assessment proceeding, the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee, or discovered by him on the basis of the facts disclosed, or otherwise, the assessing authority has to draw inferences as regards certain other facts; and ultimately, from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences, and ascertain on a correct interpretation of the taxing enactment, the proper tax leviable. Thus, when a question arises whether certain income received by an assessee is capital receipt, or revenue receipt, the assessing authority has to find out what primary facts have been proved, what other facts can be inferred from them, and, taking all these together, to decide what the legal inference should be..... We have, therefore, come to the conclusion that while the duty of the assessee is to disclose fully and truly all primary relevant facts, it does not extend beyond this.In that case, the alleged non-disclosure of material facts fully and truly - to put it in the words of the Court -was the failure of the assessee to disclose the true intention behind the sale of the shares. The assessee had stated during the assessment proceedings that the sale of shares during the relevant assessment years was a casual transaction in the nature of mere change of investment. The ITO found later that those sales were really in the nature of trading transactions. The case of the Revenue was that the assessee ought to have stated that they were trading transactions and that his assertion that they were casual transactions, in the nature of change of investment, amounted to omission or failure to disclose fully and truly all material facts necessary for his assessment for that year within the meaning of s. 34. This contention of the Revenue was rejected holding that the true nature of transaction, being a matter capable of different opinions, is not a material or primary fact but a matter of inference and hence, it cannot be said that there was an omission or failure of the nature contemplated by s. 34 on the part of the assessee. Now, what needs to be emphasised is that the obligation on the assessee to disclose the material facts - or what are called, primary facts - is not a mere disclosure but a disclosure which is full and true. A false disclosure is not a true disclosure. The disclosure must not only be true but must be full - fully and truly. A false assertion, or statement, of material fact, therefore, attracts the jurisdiction of the ITO under s. 34/147. Take this very case : the ITO says that on the basis of investigations and enquiries made during the assessment proceedings relating to the subsequent assessment year, he has come into possession of material, on the basis of which, he has reasons to believe that the assessee had put forward certain bogus and false unsecured hundi loans said to have been taken by him from non-existent persons or his dummies, as the case may be, and that on that account income chargeable to tax has escaped assessment. According to him, this was a false assertion to the knowledge of the assessee. The ITO says that during the assessment relating to subsequent assessment year, similar loans [from some of these very persons] were found to be bogus. On that basis, he seeks to reopen the assessment. It is necessary to remember that we are at the stage of reopening only. The question is whether, in the above circumstances, the assessee can say, with any justification, that he had fully and truly disclosed the material facts necessary for his assessment for that year. Having created and recorded bogus entries of loans, with what face can the assessee say that he had truly and fully disclosed all material facts necessary for his assessment for that year. True it is that ITO could have investigated the truth of the said assertion - which he actually did in the subsequent assessment year - but that does not relieve the assessee of his obligation, placed upon him by the statute, to disclose fully and truly all material facts. Indubitably, whether a loan, alleged to have been taken by the assessee, is true or false, is a material fact - and not an inference, factual or legal, to be drawn from given facts. In this case, it is shown to us that ten persons [who are alleged to have advanced loans to the assessee in a total sum of Rs. 3,80,000 out of the total hundi loans of Rs. 8,53,298] were established to be bogus persons or mere name lenders in the assessment proceedings relating to the subsequent assessment year. Does it not furnish a reasonable ground for the ITO to believe that on account of the failure - indeed not a mere failure but a positive design to mislead - of the assessee to disclose all material facts, fully and truly, necessary for his assessment for that year, income has escaped assessment ? We are of the firm opinion that it does. It is necessary to reiterate that we are now at the stage of the validity of the notice under s. 148/147. The enquiry at this stage is only to see whether there are reasonable grounds for the ITO to believe and not whether the omission/failure and the escapement of income is established. It is necessary to keep this distinction in mind.We cannot agree. The principle is well-settled by Calcutta Discount (supra) and it is not reasonable to suggest that any different proposition was sought to be enunciated in the said decisions. Calcutta Discount (supra) emphasises repeatedly the assessees obligation to disclose all material facts necessary for his assessment fully and truly in the context of the two requirements - called conditions precedent which must be satisfied before the ITO gets the jurisdiction to reopen the assessment under s. 147/148. This obligation can neither be ignored nor watered down. Nor can anyone suggest that a false disclosure satisfies the requirement of full and true disclosure. All the requirements stipulated by s. 147 must be given due and equal weight. Finality of proceedings is certainly a consideration but that avails one who has fully and truly disclosed all material facts necessary for his assessment for that year - and not to others. All the decisions relied upon by Sri Gupta have been elaborately discussed and distinguished in Phool Chand Bajranglal (supra) and we fully agree with the same. We think it unnecessary to repeat those reasons. In particular, we agree with the reasons given in Phool Chand Bajranglal (supra) for holding that the decision of this Court in Burlop Dealers (supra) must be confined to the particular fact-situation of that case and that it cannot be construed to be of universal application irrespective of the facts and circumstances of the case before the Court.8. It is brought to our notice that certain other decisions of this Court have rightly emphasised the requirement of full and true disclosure and have held that failure or omission to do so, legitimately attracts the power under s. 147. In Inspecting Assistant Commissioner of Income Tax Vs. V.I.P. Industries Ltd., , a three-Judge Bench had this to say :After hearing learned counsel for both the parties, we are unable to uphold the order of the High Court. It appears that, subsequently, facts have come to the notice of the IT Department that the facts disclosed in the return are not a true and correct declaration of facts. In that view of the matter, we set aside the order of the High Court passed in Writ Petn. No. 1634 of 1988 with Writ Petn. No. 2919 of 1988 V.I.P. Industries Ltd. Vs. Inspecting Assistant Commissioner and another, ], and send the case back on remand to the ITO for a decision in accordance with law after giving an opportunity of hearing to the parties concerned.The special leave petitions are disposed of.In Income Tax Officer, Azamgarh and Another Vs. Mewalal Dwarka Prasad, , this Court held that if the notice issued under s. 148 is good in respect of one item, it cannot be quashed under Art. 226 on the ground that it may not be valid in respect of some other items. We need not, however, dilate on this aspect for the reason that no argument has been urged before us to the effect that since the notice under s. 148 is found to be justifiable in respect of some loans disclosed and not with respect to other loans, it is invalid. | 0 | 5,181 | 2,831 | ### Instruction:
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decisions of this Court in Chhugamal Rajpal Vs. S.P. Chaliha and Others, Income tax Officer, Calcutta and Others Vs. Lakhmani Mewal Das, and The Commissioner of Income Tax, Calcutta Vs. Burlop Dealers Ltd., as laying down propositions contrary to those laid down in Phool Chand Bajranglal (supra). We cannot agree. The principle is well-settled by Calcutta Discount (supra) and it is not reasonable to suggest that any different proposition was sought to be enunciated in the said decisions. Calcutta Discount (supra) emphasises repeatedly the assessees obligation to disclose all material facts necessary for his assessment fully and truly in the context of the two requirements - called conditions precedent which must be satisfied before the ITO gets the jurisdiction to reopen the assessment under s. 147/148. This obligation can neither be ignored nor watered down. Nor can anyone suggest that a false disclosure satisfies the requirement of full and true disclosure. All the requirements stipulated by s. 147 must be given due and equal weight. Finality of proceedings is certainly a consideration but that avails one who has fully and truly disclosed all material facts necessary for his assessment for that year - and not to others. All the decisions relied upon by Sri Gupta have been elaborately discussed and distinguished in Phool Chand Bajranglal (supra) and we fully agree with the same. We think it unnecessary to repeat those reasons. In particular, we agree with the reasons given in Phool Chand Bajranglal (supra) for holding that the decision of this Court in Burlop Dealers (supra) must be confined to the particular fact-situation of that case and that it cannot be construed to be of universal application irrespective of the facts and circumstances of the case before the Court. 8. It is brought to our notice that certain other decisions of this Court have rightly emphasised the requirement of full and true disclosure and have held that failure or omission to do so, legitimately attracts the power under s. 147. In Inspecting Assistant Commissioner of Income Tax Vs. V.I.P. Industries Ltd., , a three-Judge Bench had this to say : After hearing learned counsel for both the parties, we are unable to uphold the order of the High Court. It appears that, subsequently, facts have come to the notice of the IT Department that the facts disclosed in the return are not a true and correct declaration of facts. In that view of the matter, we set aside the order of the High Court passed in Writ Petn. No. 1634 of 1988 with Writ Petn. No. 2919 of 1988 V.I.P. Industries Ltd. Vs. Inspecting Assistant Commissioner and another, ], and send the case back on remand to the ITO for a decision in accordance with law after giving an opportunity of hearing to the parties concerned. The special leave petitions are disposed of. In Central Provinces Manganese Ore Co. Ltd. Vs. I.-T.O., Nagpur, again, this Court observed : The only question which arises for our consideration is as to whether the two conditions required to confer jurisdiction on the ITO under s. 147(a) of the act have been satisfied in this case. The first is that the ITO must have reason to believe that the income chargeable to income tax had been under-assessed and the second that such under-assessment has occurred by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year 1953-54. So far as the first condition is concerned, the ITO, in his recorded reasons, has relied upon the fact as found by the Customs authorities that the appellant had under-invoiced the goods it exported. It is no doubt correct that the said finding may not be binding upon the IT authorities but it can be a valid reason to believe that the chargeable income has been under-assessed. The final outcome of the proceedings is not relevant. What is relevant is the existence of reasons to make the ITO believe that there has been under-assessment of the assessees income for a particular year. We are satisfied that the first condition to invoke the jurisdiction of the ITO under s. 147(a) of the act was satisfied. As regards the second condition, the appellant did not produce the books of account kept by them at their head office in London nor the original contracts of sale which were entered into at London with the buyers. The appellant did not produce before the ITO any of the accounts which related to the foreign buyers. No reasons were given for the supply of manganese ore at a rate lower than the market rate. It is for the assessee to disclose all the primary facts before the ITO to enable him to account for the true income of the assessee. The proven charge of under-invoicing per se satisfied the second condition. The appellants assessable income has to be determined on the basis of the price received by it for the goods exported. If the true price has not been disclosed and there was under-invoicing, the logical conclusion prima facie is that there has been failure on the part of the appellant to disclose fully and truly all material facts before the ITO. We are, therefore, satisfied that both the conditions required to attract the provisions of s. 147(a) have been complied with in this case. In Income Tax Officer, Azamgarh and Another Vs. Mewalal Dwarka Prasad, , this Court held that if the notice issued under s. 148 is good in respect of one item, it cannot be quashed under Art. 226 on the ground that it may not be valid in respect of some other items. We need not, however, dilate on this aspect for the reason that no argument has been urged before us to the effect that since the notice under s. 148 is found to be justifiable in respect of some loans disclosed and not with respect to other loans, it is invalid.
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Take this very case : the ITO says that on the basis of investigations and enquiries made during the assessment proceedings relating to the subsequent assessment year, he has come into possession of material, on the basis of which, he has reasons to believe that the assessee had put forward certain bogus and false unsecured hundi loans said to have been taken by him from non-existent persons or his dummies, as the case may be, and that on that account income chargeable to tax has escaped assessment. According to him, this was a false assertion to the knowledge of the assessee. The ITO says that during the assessment relating to subsequent assessment year, similar loans [from some of these very persons] were found to be bogus. On that basis, he seeks to reopen the assessment. It is necessary to remember that we are at the stage of reopening only. The question is whether, in the above circumstances, the assessee can say, with any justification, that he had fully and truly disclosed the material facts necessary for his assessment for that year. Having created and recorded bogus entries of loans, with what face can the assessee say that he had truly and fully disclosed all material facts necessary for his assessment for that year. True it is that ITO could have investigated the truth of the said assertion - which he actually did in the subsequent assessment year - but that does not relieve the assessee of his obligation, placed upon him by the statute, to disclose fully and truly all material facts. Indubitably, whether a loan, alleged to have been taken by the assessee, is true or false, is a material fact - and not an inference, factual or legal, to be drawn from given facts. In this case, it is shown to us that ten persons [who are alleged to have advanced loans to the assessee in a total sum of Rs. 3,80,000 out of the total hundi loans of Rs. 8,53,298] were established to be bogus persons or mere name lenders in the assessment proceedings relating to the subsequent assessment year. Does it not furnish a reasonable ground for the ITO to believe that on account of the failure - indeed not a mere failure but a positive design to mislead - of the assessee to disclose all material facts, fully and truly, necessary for his assessment for that year, income has escaped assessment ? We are of the firm opinion that it does. It is necessary to reiterate that we are now at the stage of the validity of the notice under s. 148/147. The enquiry at this stage is only to see whether there are reasonable grounds for the ITO to believe and not whether the omission/failure and the escapement of income is established. It is necessary to keep this distinction in mind.We cannot agree. The principle is well-settled by Calcutta Discount (supra) and it is not reasonable to suggest that any different proposition was sought to be enunciated in the said decisions. Calcutta Discount (supra) emphasises repeatedly the assessees obligation to disclose all material facts necessary for his assessment fully and truly in the context of the two requirements - called conditions precedent which must be satisfied before the ITO gets the jurisdiction to reopen the assessment under s. 147/148. This obligation can neither be ignored nor watered down. Nor can anyone suggest that a false disclosure satisfies the requirement of full and true disclosure. All the requirements stipulated by s. 147 must be given due and equal weight. Finality of proceedings is certainly a consideration but that avails one who has fully and truly disclosed all material facts necessary for his assessment for that year - and not to others. All the decisions relied upon by Sri Gupta have been elaborately discussed and distinguished in Phool Chand Bajranglal (supra) and we fully agree with the same. We think it unnecessary to repeat those reasons. In particular, we agree with the reasons given in Phool Chand Bajranglal (supra) for holding that the decision of this Court in Burlop Dealers (supra) must be confined to the particular fact-situation of that case and that it cannot be construed to be of universal application irrespective of the facts and circumstances of the case before the Court.8. It is brought to our notice that certain other decisions of this Court have rightly emphasised the requirement of full and true disclosure and have held that failure or omission to do so, legitimately attracts the power under s. 147. In Inspecting Assistant Commissioner of Income Tax Vs. V.I.P. Industries Ltd., , a three-Judge Bench had this to say :After hearing learned counsel for both the parties, we are unable to uphold the order of the High Court. It appears that, subsequently, facts have come to the notice of the IT Department that the facts disclosed in the return are not a true and correct declaration of facts. In that view of the matter, we set aside the order of the High Court passed in Writ Petn. No. 1634 of 1988 with Writ Petn. No. 2919 of 1988 V.I.P. Industries Ltd. Vs. Inspecting Assistant Commissioner and another, ], and send the case back on remand to the ITO for a decision in accordance with law after giving an opportunity of hearing to the parties concerned.The special leave petitions are disposed of.In Income Tax Officer, Azamgarh and Another Vs. Mewalal Dwarka Prasad, , this Court held that if the notice issued under s. 148 is good in respect of one item, it cannot be quashed under Art. 226 on the ground that it may not be valid in respect of some other items. We need not, however, dilate on this aspect for the reason that no argument has been urged before us to the effect that since the notice under s. 148 is found to be justifiable in respect of some loans disclosed and not with respect to other loans, it is invalid.
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P. Balakotaiah Vs. The Union Of India And Others(And Connected Appeals) | unionists, and the order terminating their services under R. 3 amount, in substance, to a denial to them of the freedom to form associations, which is guaranteed under Art. 19 (1) (c),.We have already observed that that is not the true scope of the charges. But apart from the, we do not see how any right of the appellants under Art. 19 (1) (c) had been infringed. The orders do not prevent them from continuing to be Communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their served have been terminated; but that involves, apart from Art. 311, no infringement of any of their Constitutional rights. The appellants have no doubt a fundamental right to form associations under Art. 19 (1) (c), but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of Art. 311 arises.This contention of the appellants must also be rejected. 18. (H C) .It is then contended that the procedure prescribed by the Security Rules for the hearing of the charges does not satisfy the requirements of Art. 311, and that they are, in consequence, void. But Art. 311 has application only when there is an order of dismissal or removal, and the question is whether an order terminating the services of the employees under R. 3 can be said to be an order dismissing or removing them. Now, this Court has held in a series of decisions that it is not every termination of the services of an employee that falls within the operation of Art. 311, and that it is only when the order is by way of punishment that it is one of dismissal or removal under that Article.Vide Satish Chandra Anand v. Union of India, 1953 SCR 655 : (AIR 1953 SC 250 ) (F); Shyam Lal v. State of Uttar Pradesh and the Union of India, 1955-1 SCR 26 : (AIR 1954 SC 369 ) (G); State of Bombay v. Saubhagchand M. Doshi, Civil Appeal No. 182 of 1955: ((S) AIR 1957 SC 892 ) (H); and Parshotam Lal Dhingra v. Union of India, Civil Appeal No. 65 of 1957: (AIR 1958 SC 36 ) (I). The question as to what would amount to punishment for purposes of Art. 311 was also fully considered in Parshotam Lal Dhingras case (I) (Supra).It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement , a premature termination of his service would be a punishment. And likewise, if the order would result in loss of benefits already earned and accrued, that would also be punishment,. In the present case, the terms of employment provide for the services being terminated on a proper notice, and so, no question of premature termination arises. Rule 7 of the Security Rules preserves the rights of the employees to all the benefits of pension, gratuities and the like, to which they would be entitled under the rules. Thus, there is no forfeiture of benefits already acquired. It was stated for the appellants that a person who was discharged under the Rules was not eligible for reemployment, and that that was punishment. But the appellants are unable to pint to any Rule imposing that disability. The order terminating the services under R. 3 of the Security rules stands on the same footing as an order of discharge under R. 148, and it is neither one of dismissal nor of removal within the meaning of Art. 31 1. This contention also must be overruled. 19. (III). It is next contended by MR. Umrigar that the charges which were made again the appellant in Civil Appeal No. 40 of 1956 in the notice dated 6-7-1950, have reference to events which took place prior to the coming into force of the Security Rules, which was on 14-5-1949, and that the order terminating the services of the appellant based thereon is bad as giving retrospective operation to the rules, and that the same is nor warranted by the terms thereof. Now, the rules provide that action can be taken under them, if the employee is engaged or is reasonably suspected to be engaged in subversive activities.Where an authority has to form an opinion that an employee is likely to be engaged in subversive activities it can only be as a matter of inference from the course of conduct of the employee, and his antecedents must furnish the best materials for the same. The rules are clearly prospective in that action thereunder is to be taken in respect of subversive activities which either now exist or are likely to be indulged in, in future, that is to say, which are in esse or in posse. That the materials for taking action in the latter case are drawn from the conduct of the employees prior to the enactment of the rules does not render their operation retrospective.Vide the observations of Lord Denman C. J., in the Queen v. St Mary Whitechapel, (1848) 12 QB 120: 116 ER 811 (J); and The Queen v. Christchurch, 1848-12 QB 149: 116 ER 823 at p. 825 (K). This contention must also be rejected. 20. (IV). Lastly, is was contended that the impugned orders were not passed by the competent authorities under the Security Rules, and that they were, therefore, void. This contention is based on the fact that the authority competent to pass the orders under R. 3 is, as regards the present appellants, the General Manager, and that the impugned orders were actually communicated to them by the Deputy Manager. But it has been found as a fact that the orders had been actually passed by the General Manager, and that finding must be accepted. 21. | 0[ds]it has not been the contention of the respondents at any stage that the orders in question were really made under R. 148 (3) of the Railway Establishment Code, and that the reference to R. 3 of the Security Rules in the proceedings might be disregarded as due to mistake. In the Court below, the learned Judges rested their conclusion on the ground that Cl. (10) of the service agreement dated 5-7-1946, provided that in respect of matters other than those specifically dealt with therein - discharge is one of such other matters - the Railway rules applicable to persons appointed on or after 1-10-1946 were applicable, that R. 148 (3) was one of such rules, and that the appellants who were non-pensionable railway servants were governed by that rule, and were liable to be discharged in accordance therewith. But this reasoning ignores that under Cl. (10) of the service agreement the Security Rules stand on the same footing as the rules in the Railway Establishment Code and constitute equally with R. 148 the conditions of service on which the appellants held the employment, and there must be convincing reasons why orders passed stately under R 3 should be held not to have been passed under that rule. Before us a different stand was taken by the respondentsWe see considerable force in the contention of the appellants that the mention of the service agreement in R.3 has reference only to the nature of the notice to be given.It the interpretation which the respondents seek to put on the Security Rules is correct, then it is difficult to see what purpose at all they serve. Mr. Gannapathy Iyer for the respondents argued that they are intended to afford protection to persons who might be charged with being engaged in subversive activities. If that is their purpose, then if action is taken thereunder but the procedure prescribed therein is not followed, the order must be held to be bad, as the protection intended to be given has been denied to the employee, and R. 148 cannot be invoked to give validity to such order. Indeed, that has been held in Sambandam v. General Manager, S. I. Rly., ILR (1953) Mad 229: (AIR 1953 Mad 54 ) (A); and Prasadi v. Works Manager, Lillooah, AIR 1957 Cal 4 (B); and that is also conceded by Mr. Ganapathy Iyer. If then the power to terminate the service under the Security Rules is different from the power to discharge under R. 148 when the procedure prescribed therein is not followed, it must be equally so when, as here, it has been followed, for the complexion of the rules cannot change according as they are complied with or not.That means that the Security Rules have an independent operation of their own, quite apart from R. 14Those rules have for their object, the safeguarding of national security as recited in the short title. That is again emphasised in R. 3 which provides that a member of the Railway service is not to be retired or his services terminated, unless the authorities are satisfied that his retention in public service is prejudicial to national security.In our judgment, the words subversive activities in the context of national security are sufficiently precise in their import to sustain a valid classification.We are unable to agree with the opinion expressed in Ananthanarayanan v. Southern Railway(D), (supra) at p. 223 that the language of R. 3 is indefinite, even when read with the words national securityalso unable to agree with the argument of the appellants based on the charges made against the appellant in Civil Appeal No. 46 of 1956 in the notice dated 6-7-1950, that the expression subversive activities is wide enough to take in lawful activities as well, and must therefore be held to be unreasonable for purposes of classification under Art. 14.The notice, it is true, refers to the appellant being a member of the Communist Party and to his activities in the trade union. It is also true that it is not unlawful to be either a Communist or a trade unionist. But it is not the necessary attribute either of a Communist or a trade unionist that he should indulge in subversive activities, and when action was taken against the appellant under the rules,it was not because he was a Communist or a trade unionist, but because he was engaged in subversive activities. We hold that he Security Rules are not illegal as being repugnant to Art. 14we do not see how any right of the appellants under Art. 19 (1) (c) had been infringed. The orders do not prevent them from continuing to be Communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their served have been terminated; but that involves, apart from Art. 311, no infringement of any of their Constitutional rights. The appellants have no doubt a fundamental right to form associations under Art. 19 (1) (c), but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of Art. 311 arises.This contention of the appellants must also be rejectedNow, this Court has held in a series of decisions that it is not every termination of the services of an employee that falls within the operation of Art. 311, and that it is only when the order is by way of punishment that it is one of dismissal or removal under that Article.Vide Satish Chandra Anand v. Union of India, 1953 SCR 655 : (AIR 1953 SC 250 ) (F); Shyam Lal v. State of Uttar Pradesh and the Union of India, 1955-1 SCR 26 : (AIR 1954 SC 369 ) (G); State of Bombay v. Saubhagchand M. Doshi, Civil Appeal No. 182 of 1955: ((S) AIR 1957 SC 892 ) (H); and Parshotam Lal Dhingra v. Union of India, Civil Appeal No. 65 of 1957: (AIR 1958 SC 36 ) (I). The question as to what would amount to punishment for purposes of Art. 311 was also fully considered in Parshotam Lal Dhingras case (I) (Supra).It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement , a premature termination of his service would be a punishment. And likewise, if the order would result in loss of benefits already earned and accrued, that would also be punishment,. In the present case, the terms of employment provide for the services being terminated on a proper notice, and so, no question of premature termination arises. Rule 7 of the Security Rules preserves the rights of the employees to all the benefits of pension, gratuities and the like, to which they would be entitled under the rules. Thus, there is no forfeiture of benefits already acquired. It was stated for the appellants that a person who was discharged under the Rules was not eligible for reemployment, and that that was punishment. But the appellants are unable to pint to any Rule imposing that disability. The order terminating the services under R. 3 of the Security rules stands on the same footing as an order of discharge under R. 148, and it is neither one of dismissal nor of removal within the meaning of Art. 311. This contention also must be overruledNow, the rules provide that action can be taken under them, if the employee is engaged or is reasonably suspected to be engaged in subversive activities.Where an authority has to form an opinion that an employee is likely to be engaged in subversive activities it can only be as a matter of inference from the course of conduct of the employee, and his antecedents must furnish the best materials for the same. The rules are clearly prospective in that action thereunder is to be taken in respect of subversive activities which either now exist or are likely to be indulged in, in future, that is to say, which are in esse or in posse. That the materials for taking action in the latter case are drawn from the conduct of the employees prior to the enactment of the rules does not render their operation retrospectiveLastly, is was contended that the impugned orders were not passed by the competent authorities under the Security Rules, and that they were, therefore, void. This contention is based on the fact that the authority competent to pass the orders under R. 3 is, as regards the present appellants, the General Manager, and that the impugned orders were actually communicated to them by the Deputy Manager. But it has been found as a fact that the orders had been actually passed by the General Manager, and that finding must be accepted. | 0 | 5,186 | 1,667 | ### Instruction:
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unionists, and the order terminating their services under R. 3 amount, in substance, to a denial to them of the freedom to form associations, which is guaranteed under Art. 19 (1) (c),.We have already observed that that is not the true scope of the charges. But apart from the, we do not see how any right of the appellants under Art. 19 (1) (c) had been infringed. The orders do not prevent them from continuing to be Communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their served have been terminated; but that involves, apart from Art. 311, no infringement of any of their Constitutional rights. The appellants have no doubt a fundamental right to form associations under Art. 19 (1) (c), but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of Art. 311 arises.This contention of the appellants must also be rejected. 18. (H C) .It is then contended that the procedure prescribed by the Security Rules for the hearing of the charges does not satisfy the requirements of Art. 311, and that they are, in consequence, void. But Art. 311 has application only when there is an order of dismissal or removal, and the question is whether an order terminating the services of the employees under R. 3 can be said to be an order dismissing or removing them. Now, this Court has held in a series of decisions that it is not every termination of the services of an employee that falls within the operation of Art. 311, and that it is only when the order is by way of punishment that it is one of dismissal or removal under that Article.Vide Satish Chandra Anand v. Union of India, 1953 SCR 655 : (AIR 1953 SC 250 ) (F); Shyam Lal v. State of Uttar Pradesh and the Union of India, 1955-1 SCR 26 : (AIR 1954 SC 369 ) (G); State of Bombay v. Saubhagchand M. Doshi, Civil Appeal No. 182 of 1955: ((S) AIR 1957 SC 892 ) (H); and Parshotam Lal Dhingra v. Union of India, Civil Appeal No. 65 of 1957: (AIR 1958 SC 36 ) (I). The question as to what would amount to punishment for purposes of Art. 311 was also fully considered in Parshotam Lal Dhingras case (I) (Supra).It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement , a premature termination of his service would be a punishment. And likewise, if the order would result in loss of benefits already earned and accrued, that would also be punishment,. In the present case, the terms of employment provide for the services being terminated on a proper notice, and so, no question of premature termination arises. Rule 7 of the Security Rules preserves the rights of the employees to all the benefits of pension, gratuities and the like, to which they would be entitled under the rules. Thus, there is no forfeiture of benefits already acquired. It was stated for the appellants that a person who was discharged under the Rules was not eligible for reemployment, and that that was punishment. But the appellants are unable to pint to any Rule imposing that disability. The order terminating the services under R. 3 of the Security rules stands on the same footing as an order of discharge under R. 148, and it is neither one of dismissal nor of removal within the meaning of Art. 31 1. This contention also must be overruled. 19. (III). It is next contended by MR. Umrigar that the charges which were made again the appellant in Civil Appeal No. 40 of 1956 in the notice dated 6-7-1950, have reference to events which took place prior to the coming into force of the Security Rules, which was on 14-5-1949, and that the order terminating the services of the appellant based thereon is bad as giving retrospective operation to the rules, and that the same is nor warranted by the terms thereof. Now, the rules provide that action can be taken under them, if the employee is engaged or is reasonably suspected to be engaged in subversive activities.Where an authority has to form an opinion that an employee is likely to be engaged in subversive activities it can only be as a matter of inference from the course of conduct of the employee, and his antecedents must furnish the best materials for the same. The rules are clearly prospective in that action thereunder is to be taken in respect of subversive activities which either now exist or are likely to be indulged in, in future, that is to say, which are in esse or in posse. That the materials for taking action in the latter case are drawn from the conduct of the employees prior to the enactment of the rules does not render their operation retrospective.Vide the observations of Lord Denman C. J., in the Queen v. St Mary Whitechapel, (1848) 12 QB 120: 116 ER 811 (J); and The Queen v. Christchurch, 1848-12 QB 149: 116 ER 823 at p. 825 (K). This contention must also be rejected. 20. (IV). Lastly, is was contended that the impugned orders were not passed by the competent authorities under the Security Rules, and that they were, therefore, void. This contention is based on the fact that the authority competent to pass the orders under R. 3 is, as regards the present appellants, the General Manager, and that the impugned orders were actually communicated to them by the Deputy Manager. But it has been found as a fact that the orders had been actually passed by the General Manager, and that finding must be accepted. 21.
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that a member of the Railway service is not to be retired or his services terminated, unless the authorities are satisfied that his retention in public service is prejudicial to national security.In our judgment, the words subversive activities in the context of national security are sufficiently precise in their import to sustain a valid classification.We are unable to agree with the opinion expressed in Ananthanarayanan v. Southern Railway(D), (supra) at p. 223 that the language of R. 3 is indefinite, even when read with the words national securityalso unable to agree with the argument of the appellants based on the charges made against the appellant in Civil Appeal No. 46 of 1956 in the notice dated 6-7-1950, that the expression subversive activities is wide enough to take in lawful activities as well, and must therefore be held to be unreasonable for purposes of classification under Art. 14.The notice, it is true, refers to the appellant being a member of the Communist Party and to his activities in the trade union. It is also true that it is not unlawful to be either a Communist or a trade unionist. But it is not the necessary attribute either of a Communist or a trade unionist that he should indulge in subversive activities, and when action was taken against the appellant under the rules,it was not because he was a Communist or a trade unionist, but because he was engaged in subversive activities. We hold that he Security Rules are not illegal as being repugnant to Art. 14we do not see how any right of the appellants under Art. 19 (1) (c) had been infringed. The orders do not prevent them from continuing to be Communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their served have been terminated; but that involves, apart from Art. 311, no infringement of any of their Constitutional rights. The appellants have no doubt a fundamental right to form associations under Art. 19 (1) (c), but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of Art. 311 arises.This contention of the appellants must also be rejectedNow, this Court has held in a series of decisions that it is not every termination of the services of an employee that falls within the operation of Art. 311, and that it is only when the order is by way of punishment that it is one of dismissal or removal under that Article.Vide Satish Chandra Anand v. Union of India, 1953 SCR 655 : (AIR 1953 SC 250 ) (F); Shyam Lal v. State of Uttar Pradesh and the Union of India, 1955-1 SCR 26 : (AIR 1954 SC 369 ) (G); State of Bombay v. Saubhagchand M. Doshi, Civil Appeal No. 182 of 1955: ((S) AIR 1957 SC 892 ) (H); and Parshotam Lal Dhingra v. Union of India, Civil Appeal No. 65 of 1957: (AIR 1958 SC 36 ) (I). The question as to what would amount to punishment for purposes of Art. 311 was also fully considered in Parshotam Lal Dhingras case (I) (Supra).It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement , a premature termination of his service would be a punishment. And likewise, if the order would result in loss of benefits already earned and accrued, that would also be punishment,. In the present case, the terms of employment provide for the services being terminated on a proper notice, and so, no question of premature termination arises. Rule 7 of the Security Rules preserves the rights of the employees to all the benefits of pension, gratuities and the like, to which they would be entitled under the rules. Thus, there is no forfeiture of benefits already acquired. It was stated for the appellants that a person who was discharged under the Rules was not eligible for reemployment, and that that was punishment. But the appellants are unable to pint to any Rule imposing that disability. The order terminating the services under R. 3 of the Security rules stands on the same footing as an order of discharge under R. 148, and it is neither one of dismissal nor of removal within the meaning of Art. 311. This contention also must be overruledNow, the rules provide that action can be taken under them, if the employee is engaged or is reasonably suspected to be engaged in subversive activities.Where an authority has to form an opinion that an employee is likely to be engaged in subversive activities it can only be as a matter of inference from the course of conduct of the employee, and his antecedents must furnish the best materials for the same. The rules are clearly prospective in that action thereunder is to be taken in respect of subversive activities which either now exist or are likely to be indulged in, in future, that is to say, which are in esse or in posse. That the materials for taking action in the latter case are drawn from the conduct of the employees prior to the enactment of the rules does not render their operation retrospectiveLastly, is was contended that the impugned orders were not passed by the competent authorities under the Security Rules, and that they were, therefore, void. This contention is based on the fact that the authority competent to pass the orders under R. 3 is, as regards the present appellants, the General Manager, and that the impugned orders were actually communicated to them by the Deputy Manager. But it has been found as a fact that the orders had been actually passed by the General Manager, and that finding must be accepted.
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Commr.Of Dum Dum Muncipality Vs. Indian Tourism Development Corpn | Corporations Act and in particular Section 30 which provides that the net income of the Corporation should go to the State of Andhra Pradesh, it must be held that the income of the Corporation was really the income of the State Government. This argument was rejected on an examination of the provisions of the Road Transport Corporations Act which are broadly in accord with the provisions of the International Airports Authority Act, 1971. In coming to the said conclusion, the Constitution Bench laid emphasis upon the fact that the Corporation has a separate fund of its own, that it can borrow funds from any source including from the State Government and Central Government and that it can enter into contracts and own property. It held that the mere fact that the Corporation is owned by the State Government or that in all material particulars, its activities are controlled by the State, are of no consequence. Of course, the share capital of the Corporation in that case was held by the State Government and Central Government together and that it also contemplated raising of capital by issue of shares to other parties whereas in the case of the Authority there is no such provision. But the said feature, in our opinion, does in no way whittle down the relevance of the said decision to the facts of the case before us, for the reason that the said fact is not at the core of the decision 33. There is yet another circumstance which goes to support our conclusion. Parliament has since enacted the Airports Authority of India Act, 1994 (Act 55 of 1994) in supersession of the 1971 Act. We are told that the 1994 Act has come into force on and from 1-4-1995. Section 3 of the Act constitutes an authority called Airports Authority of India. Sub-section (1) of Section 13 says that on and from the appointed day, the undertakings of the International Airports Authority (i.e., the authority constituted under Section 3 of the 1971 Act) shall be transferred to and vest in the Authority constituted under Section 3 of the 1994 Act. Sub-section (2) of Section 13 makes it clear that the undertaking of the International Airports Authority ... which is transferred to and which vests in the Authority under sub-section (1) shall be deemed to include all assets, rights, powers, authorities and privileges and all property, moveable and immovable, real or personal, corporeal or incorporeal, present or contingent, of whatever nature and wheresoever situate, including lands, buildings, machinery, equipments, works, workshops, cash balances, capital reserves, reserve funds, investments, tenancies, leases and book debts and all other rights and interests arising out of such property as were immediately before the appointment day in the ownership, possession or power of the International Airports Authority ... in relation to its undertaking whether within or outside India... * . No distinction of the nature urged by the learned counsel for the appellants is recognised by sub-section (2) of Section 13 of the 1994 Act 34. Reference may be made in this connection to the decision of this Court in Western Coalfields Ltd. v. Special Area Development Authority. Certain government companies incorporated under the Companies Act, the entire share capital whereof was held/owned by the Government of India claimed exemption from State taxation under Article 285(1) of the Constitution. The said plea was rejected by this Court holding that merely because the entire share capital is owned by the Government of India it cannot be held that companies themselves are owned by the Government of India. It was observed that the companies which are incorporated under the Companies Act have a corporate personality on their own distinct from that of the Government of India and that the lands and buildings are vested in and owned by the companies whereas the Government of India only owns the share capital. Reliance was placed upon certain decisions of this Court including the decision in APSRTC. We are of the opinion that the said principle applies equally in the case of a statutory corporation. The statutory corporation is constituted by or under a statute as against the companies (including government companies) which are registered under and governed by Indian Companies Act, 1956 35. For all the above reasons, we are of the opinion that the International Airports Authority of India is a statutory corporation distinct from the Central Government and that the properties vested in it by Section 12 of the Act cannot be said to have been vested in it only for proper management. After the date of vesting, the properties so vested are no longer the properties of the Union of India for the purpose of and within the meaning of Article 285. The vesting of the said properties in the Authority is with the object of ensuring better management and more efficient operation of the airports covered by the Act. Indeed that is the object behind the very creation of the Authority. But that does not mean that it is a case of limited vesting for the purpose of better management. The Authority cannot, therefore, invoke the immunity created by Article 285(1) of the Constitution. The levy of property taxes by the relevant municipal bodies is unexceptionable 36. In view of our conclusion in the preceding para, it is unnecessary to go into the other question raised, viz., whether the municipality can levy tax upon the building where it cannot levy tax upon the land upon which the building stands 37. The Calcutta High Court has expressed a view that not all the land in the possession of the ITDC (pursuant to the licence granted to it by the Authority) is within the limits of the Dum Dum Municipality. Since this finding appears to be not based on any definite material, we leave this question open for decision by the appropriate authorities at the appropriate stage. In any such proceedings, the finding of the High Court aforesaid shall not operate as res judicata | 0[ds]We are, however, of the opinion that the nature and character of vesting should not be determined with reference to the preamble and sub-section (1) of Section 16 alone but on a totality, i.e., on a conspectus of the provisions of the Act. Section 3(2) says that the authority shall be a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property both moveable and immovable, and entitled to enter into contracts. It can sue and is liable to be sued in its own nameThese several provisions make it clear that the Authority is a distinct juristic entity, having its own properties, fund and employees, and that it is capable of borrowing from any source including from Government of India. The Act expressly makes the Authority liable to pay income tax like any other company and its income arises mainly from the properties vested in it. This fact coupled with the fact that there are no words of restriction in Section 12 does establish conclusively that the properties vested in it under Section 12 - properties which were hitherto owned by the Union of India - cease to be the properties of the Union of India and that the said vesting is neither restricted nor temporary. The vesting is no doubt for ensuring better management of airports but the said purpose underlying the creation of the Authority cannot be read as a restriction or as a ground for curtailing the meaning of vesting23. So far as Section 33 is concerned, it is a temporary measure - a regulatory manner - which has to be taken whenever it is found necessary in public interest. If the Central Government is of the opinion that in public interest, it is necessary or expedient so to do, it can direct the Authority to entrust the management of any airport to the person or persons appointed by it who shall manage the same for the limited period specified in the section subject to and under the orders of the Central Government. At the end of such period, the management of the airport reverts back to the Authority. Similarly, Section 34 provides for supersession of the authority in certain situations, viz., in a grave emergency where the authority is unable to discharge its functions or duties or where the authority has persistently made default in complying with any direction issued by the Central Government as a result of which the financial position of the authority or the administration of the authority has deteriorated or where the circumstances exist which renders it in the public interest so to do. This is another instance of control vested in the Central Government to ensure proper and efficient functioning of the Authority. The Authority can be superseded only for a period not exceeding six months which can, however, be extended for a further period of six months - but not beyond. These are the usual regulatory provisions found in such enactments and in enactments dealing with cooperative societies and panchayat raj institutions24. Great emphasis was laid upon clause (c) of sub-section (2) of Section 34 which provides that on supersession of the Authority under sub-section (1)l property owned or controlled by the Authority shall, until the Authority is reconstituted under sub-section (3), vest in the Central. This provision, according to the learned counsel, points out the ephemeral nature of vesting of properties of the Union of India in the Authority and is inconsistent with the theory of absolute vesting propounded by the respondents. We are not impressed. It may be seen that once an Authority is superseded under Section 34(1), there is, in law, no Authority. In such a situation, provision has to be made with respect to the properties hitherto vesting in the Authority and clause (c) of sub-section (2) is precisely the provision providing for it. Evidently, Parliament did not wish to vest the properties in the person or persons appointed to manage the affairs of the Authority for a limited period. It is for that reason that the said clause says that during the period of supersession such properties vest in the Central Government which get re-vested in the Authority once it is reconstituted. Indeed, it is suggested by Shri Chatterji, learned counsel appearing for the Dum Dum Municipality that if the properties did never vest in the Authority and had always remained the properties of the Union of India, there was no occasion for clause (c) to say that the properties owned or controlled by the Authority vest in the Union for the said limited period. We need not, however, express any opinion on this submission27. There is yet another difficulty in the way of accepting the appellants submission. The submission logically means that only those properties which are vested by the Central Government in the Authority on the date of its constitution alone will continue to be the properties of the Union. But so far as the properties which have been acquired or constructed after that date by the Authority would be its own properties. It may happen that the properties which have been vested in the authority at its inception have been rebuilt, improved, expanded and developed beyond recognition. How is one to draw the line and where ? Such a distinction would not only be artificial but difficult to operate in practice. The annual report published by the Authority from year to year discloses how the Authority has understood the vesting. A copy of the annual report 1988-89 is placed before us which shows that the Authority claims to be the owner of all the properties without making any distinction between those that were vested in it at its inception and those which have been acquired and/or constructed later. It has also claimed depreciation on all the properties under Section 32 of the Income Tax Act which can be claimed only by the owner of the properties. We are not suggesting that the understanding of the Authority is conclusive on the question. Far from it. The issue has really to be decided on the basis of the provisions of the Act. We referred to the said aspect only to show how the Authority and Union of India have understood the legal position and acted upon it over a period of more than two decades30. In our opinion, these letters and/or the certificate do not represent a decision within the meaning of Section 12(3) since that sub-section seems to contemplate a dispute between the Union of India and the Authority. No such dispute ever existed. Secondly it cannot bind any of the Municipal Corporations concerned herein for the reason that they were not heard before rendering the said decision. Yet another feature of these letters and certificate is that they do not draw a distinction between properties transferred by the Union of India to the Authority and the properties acquired and/are controlled by the Authority after its constitution. According to the Central Government, all the properties of the Authority are really the properties of the Union - a stand which is not taken by the appellants even35. For all the above reasons, we are of the opinion that the International Airports Authority of India is a statutory corporation distinct from the Central Government and that the properties vested in it by Section 12 of the Act cannot be said to have been vested in it only for proper management. After the date of vesting, the properties so vested are no longer the properties of the Union of India for the purpose of and within the meaning of Article 285. The vesting of the said properties in the Authority is with the object of ensuring better management and more efficient operation of the airports covered by the Act. Indeed that is the object behind the very creation of the Authority. But that does not mean that it is a case of limited vesting for the purpose of better management. The Authority cannot, therefore, invoke the immunity created by Article 285(1) of the Constitution. The levy of property taxes by the relevant municipal bodies is unexceptionable36. In view of our conclusion in the preceding para, it is unnecessary to go into the other question raised, viz., whether the municipality can levy tax upon the building where it cannot levy tax upon the land upon which the building stands37. The Calcutta High Court has expressed a view that not all the land in the possession of the ITDC (pursuant to the licence granted to it by the Authority) is within the limits of the Dum Dum Municipality. Since this finding appears to be not based on any definite material, we leave this question open for decision by the appropriate authorities at the appropriate stage. In any such proceedings, the finding of the High Court aforesaid shall not operate as res judicata | 0 | 9,575 | 1,616 | ### Instruction:
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Corporations Act and in particular Section 30 which provides that the net income of the Corporation should go to the State of Andhra Pradesh, it must be held that the income of the Corporation was really the income of the State Government. This argument was rejected on an examination of the provisions of the Road Transport Corporations Act which are broadly in accord with the provisions of the International Airports Authority Act, 1971. In coming to the said conclusion, the Constitution Bench laid emphasis upon the fact that the Corporation has a separate fund of its own, that it can borrow funds from any source including from the State Government and Central Government and that it can enter into contracts and own property. It held that the mere fact that the Corporation is owned by the State Government or that in all material particulars, its activities are controlled by the State, are of no consequence. Of course, the share capital of the Corporation in that case was held by the State Government and Central Government together and that it also contemplated raising of capital by issue of shares to other parties whereas in the case of the Authority there is no such provision. But the said feature, in our opinion, does in no way whittle down the relevance of the said decision to the facts of the case before us, for the reason that the said fact is not at the core of the decision 33. There is yet another circumstance which goes to support our conclusion. Parliament has since enacted the Airports Authority of India Act, 1994 (Act 55 of 1994) in supersession of the 1971 Act. We are told that the 1994 Act has come into force on and from 1-4-1995. Section 3 of the Act constitutes an authority called Airports Authority of India. Sub-section (1) of Section 13 says that on and from the appointed day, the undertakings of the International Airports Authority (i.e., the authority constituted under Section 3 of the 1971 Act) shall be transferred to and vest in the Authority constituted under Section 3 of the 1994 Act. Sub-section (2) of Section 13 makes it clear that the undertaking of the International Airports Authority ... which is transferred to and which vests in the Authority under sub-section (1) shall be deemed to include all assets, rights, powers, authorities and privileges and all property, moveable and immovable, real or personal, corporeal or incorporeal, present or contingent, of whatever nature and wheresoever situate, including lands, buildings, machinery, equipments, works, workshops, cash balances, capital reserves, reserve funds, investments, tenancies, leases and book debts and all other rights and interests arising out of such property as were immediately before the appointment day in the ownership, possession or power of the International Airports Authority ... in relation to its undertaking whether within or outside India... * . No distinction of the nature urged by the learned counsel for the appellants is recognised by sub-section (2) of Section 13 of the 1994 Act 34. Reference may be made in this connection to the decision of this Court in Western Coalfields Ltd. v. Special Area Development Authority. Certain government companies incorporated under the Companies Act, the entire share capital whereof was held/owned by the Government of India claimed exemption from State taxation under Article 285(1) of the Constitution. The said plea was rejected by this Court holding that merely because the entire share capital is owned by the Government of India it cannot be held that companies themselves are owned by the Government of India. It was observed that the companies which are incorporated under the Companies Act have a corporate personality on their own distinct from that of the Government of India and that the lands and buildings are vested in and owned by the companies whereas the Government of India only owns the share capital. Reliance was placed upon certain decisions of this Court including the decision in APSRTC. We are of the opinion that the said principle applies equally in the case of a statutory corporation. The statutory corporation is constituted by or under a statute as against the companies (including government companies) which are registered under and governed by Indian Companies Act, 1956 35. For all the above reasons, we are of the opinion that the International Airports Authority of India is a statutory corporation distinct from the Central Government and that the properties vested in it by Section 12 of the Act cannot be said to have been vested in it only for proper management. After the date of vesting, the properties so vested are no longer the properties of the Union of India for the purpose of and within the meaning of Article 285. The vesting of the said properties in the Authority is with the object of ensuring better management and more efficient operation of the airports covered by the Act. Indeed that is the object behind the very creation of the Authority. But that does not mean that it is a case of limited vesting for the purpose of better management. The Authority cannot, therefore, invoke the immunity created by Article 285(1) of the Constitution. The levy of property taxes by the relevant municipal bodies is unexceptionable 36. In view of our conclusion in the preceding para, it is unnecessary to go into the other question raised, viz., whether the municipality can levy tax upon the building where it cannot levy tax upon the land upon which the building stands 37. The Calcutta High Court has expressed a view that not all the land in the possession of the ITDC (pursuant to the licence granted to it by the Authority) is within the limits of the Dum Dum Municipality. Since this finding appears to be not based on any definite material, we leave this question open for decision by the appropriate authorities at the appropriate stage. In any such proceedings, the finding of the High Court aforesaid shall not operate as res judicata
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of six months - but not beyond. These are the usual regulatory provisions found in such enactments and in enactments dealing with cooperative societies and panchayat raj institutions24. Great emphasis was laid upon clause (c) of sub-section (2) of Section 34 which provides that on supersession of the Authority under sub-section (1)l property owned or controlled by the Authority shall, until the Authority is reconstituted under sub-section (3), vest in the Central. This provision, according to the learned counsel, points out the ephemeral nature of vesting of properties of the Union of India in the Authority and is inconsistent with the theory of absolute vesting propounded by the respondents. We are not impressed. It may be seen that once an Authority is superseded under Section 34(1), there is, in law, no Authority. In such a situation, provision has to be made with respect to the properties hitherto vesting in the Authority and clause (c) of sub-section (2) is precisely the provision providing for it. Evidently, Parliament did not wish to vest the properties in the person or persons appointed to manage the affairs of the Authority for a limited period. It is for that reason that the said clause says that during the period of supersession such properties vest in the Central Government which get re-vested in the Authority once it is reconstituted. Indeed, it is suggested by Shri Chatterji, learned counsel appearing for the Dum Dum Municipality that if the properties did never vest in the Authority and had always remained the properties of the Union of India, there was no occasion for clause (c) to say that the properties owned or controlled by the Authority vest in the Union for the said limited period. We need not, however, express any opinion on this submission27. There is yet another difficulty in the way of accepting the appellants submission. The submission logically means that only those properties which are vested by the Central Government in the Authority on the date of its constitution alone will continue to be the properties of the Union. But so far as the properties which have been acquired or constructed after that date by the Authority would be its own properties. It may happen that the properties which have been vested in the authority at its inception have been rebuilt, improved, expanded and developed beyond recognition. How is one to draw the line and where ? Such a distinction would not only be artificial but difficult to operate in practice. The annual report published by the Authority from year to year discloses how the Authority has understood the vesting. A copy of the annual report 1988-89 is placed before us which shows that the Authority claims to be the owner of all the properties without making any distinction between those that were vested in it at its inception and those which have been acquired and/or constructed later. It has also claimed depreciation on all the properties under Section 32 of the Income Tax Act which can be claimed only by the owner of the properties. We are not suggesting that the understanding of the Authority is conclusive on the question. Far from it. The issue has really to be decided on the basis of the provisions of the Act. We referred to the said aspect only to show how the Authority and Union of India have understood the legal position and acted upon it over a period of more than two decades30. In our opinion, these letters and/or the certificate do not represent a decision within the meaning of Section 12(3) since that sub-section seems to contemplate a dispute between the Union of India and the Authority. No such dispute ever existed. Secondly it cannot bind any of the Municipal Corporations concerned herein for the reason that they were not heard before rendering the said decision. Yet another feature of these letters and certificate is that they do not draw a distinction between properties transferred by the Union of India to the Authority and the properties acquired and/are controlled by the Authority after its constitution. According to the Central Government, all the properties of the Authority are really the properties of the Union - a stand which is not taken by the appellants even35. For all the above reasons, we are of the opinion that the International Airports Authority of India is a statutory corporation distinct from the Central Government and that the properties vested in it by Section 12 of the Act cannot be said to have been vested in it only for proper management. After the date of vesting, the properties so vested are no longer the properties of the Union of India for the purpose of and within the meaning of Article 285. The vesting of the said properties in the Authority is with the object of ensuring better management and more efficient operation of the airports covered by the Act. Indeed that is the object behind the very creation of the Authority. But that does not mean that it is a case of limited vesting for the purpose of better management. The Authority cannot, therefore, invoke the immunity created by Article 285(1) of the Constitution. The levy of property taxes by the relevant municipal bodies is unexceptionable36. In view of our conclusion in the preceding para, it is unnecessary to go into the other question raised, viz., whether the municipality can levy tax upon the building where it cannot levy tax upon the land upon which the building stands37. The Calcutta High Court has expressed a view that not all the land in the possession of the ITDC (pursuant to the licence granted to it by the Authority) is within the limits of the Dum Dum Municipality. Since this finding appears to be not based on any definite material, we leave this question open for decision by the appropriate authorities at the appropriate stage. In any such proceedings, the finding of the High Court aforesaid shall not operate as res judicata
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M.P. Housing Board & Anr Vs. Satish Kumar Batra and Ors | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 18.09.2020 passed by the High Court of Madhya Pradesh, Bench at Indore in Writ Appeal No. 392 of 2009 by which the Division Bench of the High Court has allowed the said appeal preferred by the respondent Nos. 1 to 3 herein and has set aside the judgment and order passed by the learned Single Judge dated 09.09.2009 passed in Writ Petition No.2624 of 2008 and has held that the respondent Nos. 1 to 3 herein shall be entitled for the same relief, which has been extended to the similarly placed persons – Gajanand Mali, who was the petitioner in the Writ Petition No.651 of 1995, the M.P. Housing Board and Anr. have preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: 2.1 That respondent Nos. 1 to 3 herein purchased the land in question from one Gajanand Mali and Nandkishore, the predecessor-in-title. With respect to the land in question a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as Act of 1894) was issued on 12.07.1994. Thereafter objections under Section 5-A of the Act of 1894 were invited. Gajanand Mali and Nandkishore and other landowners submitted their objections. The Land Acquisition Officer rejected the objections. The original landowner – Gajanand Mali aggrieved by the order passed by the Land Acquisition Officer rejecting his objection preferred the Writ Petition No. 651 of 1995. The said writ petition was dismissed by the learned Single Judge by an order dated 16.04.2001. 2.2 The Letters Patent Appeal No. 228 of 2001 preferred by the Gajanand Mali came to be allowed by the Division Bench setting aside the order passed by the learned Single Judge as well as the order dated 18.04.1995 passed by the Land Acquisition Officer rejecting the objection of Gajanand Mali and remanded the matter back to the Land Acquisition Officer for deciding the objections afresh. 2.3 It appears that thereafter the said Gajanand Mali and other predecessor-in-title of the respondent Nos. 1 to 3 preferred one another Writ Petition No.830 of 1997 challenging the notification under Section 4 of the Act of 1894 dated 12.07.1994 and the notification under Section 6 dated 26.05.1995. The said writ petition came to be dismissed by the learned Single Judge vide order dated 19.07.2004. Letters Patent Appeal No.329 of 2004 preferred by the Gajanand Mali against the order passed by the learned Single Judge passed in Writ Petition No. 830 of 1997 came to be dismissed by the Division Bench as not maintainable. The matter was carried to this Court. The said Gajanand Mali withdrew the appeals before this Court with liberty to prefer the Letters Patent Appeal as in the meantime in view of the change in law, the Letters Patent Appeal were held to be maintainable. The said Gajanand Mali thereafter had preferred Writ Appeal No.447 of 2009 against the order passed by the learned Single Judge dated 19.07.2004 in Writ Petition No.830 of 1997, which is reported to be pending. 2.4 That thereafter in the year 2008, the respondent Nos. 1 to 3 herein preferred the present Writ Petition No.2624 of 2008 before the learned Single Judge. Vide order dated 09.09.2009, the learned Single Judge dismissed the said writ petition primarily on the ground of delay and latches. Respondent Nos. 1 to 3 herein preferred the present Letters Patent Appeal before the Division Bench and by the impugned judgment and order, the Division Bench of the High Court has allowed the said appeal and has quashed and set aside the order passed by the learned Single Judge and held that the respondent Nos. 1 to 3 are also entitled to the same relief, which was granted in favour of Gajanand Mali, the writ petitioner in Writ Petition No.651 of 1995. 3. However, the High Court has not at all noted and/or considered that with respect to the very acquisition and the notifications under Sections 4 and 6 dated 12.07.1994 and 26.05.1995 respectively, Writ Appeal No.447 of 2009 filed by the predecessor-in-title of the respondent Nos. 1 to 3 i.e., Gajanand Mali is pending before the High Court. Without noticing the same, the High Court has allowed the appeal and set aside the order passed by the learned Single Judge. 4. We are of the opinion that once the very acquisition and the notifications under Sections 4 and 6 were the subject matter of other proceedings pending before the High Court, in order to avoid any further conflicting orders and even otherwise on the basis of proprietary the High Court, instead of deciding the present appeal separately ought to have ensured that all the appeals with respect to the same acquisition, where the notifications were challenged, are heard together. That has not been done in the instant case. 5. Hence on the aforesaid short ground alone, the impugned judgment and order passed by the Division Bench of the High Court is to be set aside and the matter is to be remanded to the Division Bench of the High Court to decide the present appeal being Writ Appeal No.392 of 2009 alongwith Writ Appeal No.447 of 2009 preferred by the Gajanand Mali and others. | 1[ds]4. We are of the opinion that once the very acquisition and the notifications under Sections 4 and 6 were the subject matter of other proceedings pending before the High Court, in order to avoid any further conflicting orders and even otherwise on the basis of proprietary the High Court, instead of deciding the present appeal separately ought to have ensured that all the appeals with respect to the same acquisition, where the notifications were challenged, are heard together. That has not been done in the instant case.5. Hence on the aforesaid short ground alone, the impugned judgment and order passed by the Division Bench of the High Court is to be set aside and the matter is to be remanded to the Division Bench of the High Court to decide the present appeal being Writ Appeal No.392 of 2009 alongwith Writ Appeal No.447 of 2009 preferred by the Gajanand Mali and others. | 1 | 949 | 166 | ### Instruction:
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M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 18.09.2020 passed by the High Court of Madhya Pradesh, Bench at Indore in Writ Appeal No. 392 of 2009 by which the Division Bench of the High Court has allowed the said appeal preferred by the respondent Nos. 1 to 3 herein and has set aside the judgment and order passed by the learned Single Judge dated 09.09.2009 passed in Writ Petition No.2624 of 2008 and has held that the respondent Nos. 1 to 3 herein shall be entitled for the same relief, which has been extended to the similarly placed persons – Gajanand Mali, who was the petitioner in the Writ Petition No.651 of 1995, the M.P. Housing Board and Anr. have preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: 2.1 That respondent Nos. 1 to 3 herein purchased the land in question from one Gajanand Mali and Nandkishore, the predecessor-in-title. With respect to the land in question a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as Act of 1894) was issued on 12.07.1994. Thereafter objections under Section 5-A of the Act of 1894 were invited. Gajanand Mali and Nandkishore and other landowners submitted their objections. The Land Acquisition Officer rejected the objections. The original landowner – Gajanand Mali aggrieved by the order passed by the Land Acquisition Officer rejecting his objection preferred the Writ Petition No. 651 of 1995. The said writ petition was dismissed by the learned Single Judge by an order dated 16.04.2001. 2.2 The Letters Patent Appeal No. 228 of 2001 preferred by the Gajanand Mali came to be allowed by the Division Bench setting aside the order passed by the learned Single Judge as well as the order dated 18.04.1995 passed by the Land Acquisition Officer rejecting the objection of Gajanand Mali and remanded the matter back to the Land Acquisition Officer for deciding the objections afresh. 2.3 It appears that thereafter the said Gajanand Mali and other predecessor-in-title of the respondent Nos. 1 to 3 preferred one another Writ Petition No.830 of 1997 challenging the notification under Section 4 of the Act of 1894 dated 12.07.1994 and the notification under Section 6 dated 26.05.1995. The said writ petition came to be dismissed by the learned Single Judge vide order dated 19.07.2004. Letters Patent Appeal No.329 of 2004 preferred by the Gajanand Mali against the order passed by the learned Single Judge passed in Writ Petition No. 830 of 1997 came to be dismissed by the Division Bench as not maintainable. The matter was carried to this Court. The said Gajanand Mali withdrew the appeals before this Court with liberty to prefer the Letters Patent Appeal as in the meantime in view of the change in law, the Letters Patent Appeal were held to be maintainable. The said Gajanand Mali thereafter had preferred Writ Appeal No.447 of 2009 against the order passed by the learned Single Judge dated 19.07.2004 in Writ Petition No.830 of 1997, which is reported to be pending. 2.4 That thereafter in the year 2008, the respondent Nos. 1 to 3 herein preferred the present Writ Petition No.2624 of 2008 before the learned Single Judge. Vide order dated 09.09.2009, the learned Single Judge dismissed the said writ petition primarily on the ground of delay and latches. Respondent Nos. 1 to 3 herein preferred the present Letters Patent Appeal before the Division Bench and by the impugned judgment and order, the Division Bench of the High Court has allowed the said appeal and has quashed and set aside the order passed by the learned Single Judge and held that the respondent Nos. 1 to 3 are also entitled to the same relief, which was granted in favour of Gajanand Mali, the writ petitioner in Writ Petition No.651 of 1995. 3. However, the High Court has not at all noted and/or considered that with respect to the very acquisition and the notifications under Sections 4 and 6 dated 12.07.1994 and 26.05.1995 respectively, Writ Appeal No.447 of 2009 filed by the predecessor-in-title of the respondent Nos. 1 to 3 i.e., Gajanand Mali is pending before the High Court. Without noticing the same, the High Court has allowed the appeal and set aside the order passed by the learned Single Judge. 4. We are of the opinion that once the very acquisition and the notifications under Sections 4 and 6 were the subject matter of other proceedings pending before the High Court, in order to avoid any further conflicting orders and even otherwise on the basis of proprietary the High Court, instead of deciding the present appeal separately ought to have ensured that all the appeals with respect to the same acquisition, where the notifications were challenged, are heard together. That has not been done in the instant case. 5. Hence on the aforesaid short ground alone, the impugned judgment and order passed by the Division Bench of the High Court is to be set aside and the matter is to be remanded to the Division Bench of the High Court to decide the present appeal being Writ Appeal No.392 of 2009 alongwith Writ Appeal No.447 of 2009 preferred by the Gajanand Mali and others.
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4. We are of the opinion that once the very acquisition and the notifications under Sections 4 and 6 were the subject matter of other proceedings pending before the High Court, in order to avoid any further conflicting orders and even otherwise on the basis of proprietary the High Court, instead of deciding the present appeal separately ought to have ensured that all the appeals with respect to the same acquisition, where the notifications were challenged, are heard together. That has not been done in the instant case.5. Hence on the aforesaid short ground alone, the impugned judgment and order passed by the Division Bench of the High Court is to be set aside and the matter is to be remanded to the Division Bench of the High Court to decide the present appeal being Writ Appeal No.392 of 2009 alongwith Writ Appeal No.447 of 2009 preferred by the Gajanand Mali and others.
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Modi Entertainment Network Vs. W.S.G. Cricket Pte. Ltd | action of GOP in filing the suit earlier in the court of natural jurisdiction was held to be clearly in breach of contract and in the context of the non-exclusive jurisdiction clause, oppressive and vexatious unless the GOP could show strong reasons as to why parallel proceeding would be justified. The only ground urged for continuance of proceedings in Pakistan Court was that it was a convenient forum which was considered not strong enough for the GOP to disregard the contractual obligation of submission to the jurisdiction of the English Court for resolution of disputes. The Court of Appeal, upheld the anti-suit injunction granted by the learned Judge at the first instance as also the order declining to stay the English suit. 27. In the instant case, though the learned single judge proceeded on the prima facie finding that the proceedings in the English courts would be oppressive and vexatious, in our view, those findings, recorded at the stage of passing an ad interim order, would not bind the same learned judge much less they would bind the appellate court or the parties thereto at subsequent stage of the same proceedings because it cannot operate as issue estoppel. It cannot be laid down as a general principle that once the parties have agreed to submit to the jurisdiction of a foreign court, the proceedings or the action brought either in the court of natural jurisdiction or in the court of choice will per se be oppressive or vexatious. It depends on the facts of each case and the question whether the proceedings in a court are vexatious or oppressive has to be decided on the basis of the material brought before the court. Having perused the plaints in both the suits and the contract we are of the view that the proceedings in the English court for recovery of the minimum guaranteed amount under the contract cannot, at this stage, be said to be oppressive or vexatious. It is true that the courts would be inclined to grant anti-suit injunction to prevent breach of contractual obligations to submit to the exclusive or non-exclusive jurisdiction of the court of choice of the parties but that is not the only ground on which anti-suit injunction can be granted. As is apparent the appellants brought the suit in the court of natural jurisdiction for adjudication of the disputes arising under the contract for which the parties have agreed to submit to the non-exclusive jurisdiction of the English Court in accordance with English law though the English Court has no nexus with the parties or the subject-matter and is not the natural forum. But then the jurisdiction clause indicates that the intention of the parties is to have the disputes resolved in accordance with the principles on English law by an English Court. Unless good and sufficient reasons are shown by the appellants, the intention of the parties as evidence by their contract must be given effect to. Even when the appellants had filed the suit earlier in point of time in the Court of natural forum and the respondent brought action in the English court which is the agreed forum or forum of the choice having regard to the expressed intention of the parties, no good and sufficient reason is made out to grant anti-suit injunction to restrain the respondent from prosecuting the English action as such an order would clearly be in breach of agreement and the court will not, except when proceedings in foreign court of choice result in perpetuating injustice aid a party to commit breach of the agreement. To apply the principle in Donohues case good and sufficient reasons (strong reasons) should be shown to justify departure from the contractual obligations. Here, two contentions have been urged; the first is that the English Court is forum non-conveniens in view of the alleged breach of the agreement by the respondent in the manner not foreseen. This, in our view, is far from being a good and sufficient reasons to ignore the jurisdiction clause. Even otherwise that fact that the parties had agreed to resolve their disputes arising under the agreement, shows that they had foreseen possible breach of agreement by any of the parties and provided for the resolution of the disputes which might arise therefrom. In the context, the foreseeability test would take in circumstances which render approaching the forum of choice impossible like the court of choice merging with other court and losing its identity or a vis major etc., which would make it impossible for the party seeking anti-suit injunction, to prosecute the case before the forum of choice. In our view, on the facts of this case, the foresseability test cannot be extended to the manner of breach of the contract so as to turn the forum of choice into forum non-conveniens. Circumstances such as comparison of litigation expenses in England and in India or the hardship and incurring of heavy expenditure on taking the witnesses to the English Court, would be deemed to have been foreseen by the parties with they agreed to submit to the jurisdiction of the English Court in accordance with the principles of English law and the said reasons cannot be valid grounds to interdict prosecution of the action in the English Court of choice. And the second is that English Court has no connection with either of the parties or the subject-matter and it is not a court of natural jurisdiction. This reason can be taken note of when strong reasons are shown to disregard the contractual obligation. It cannot be a good and sufficient reason in itself to justify the court of natural jurisdiction to interdict action in a foreign court of choice of the parties. 28. We, therefore, find no valid reasons to grant anti-suit injunction in favour of the appellants, in disregard of jurisdiction clause, to restrain the respondent from prosecuting the case in the foreign forum of the choice of the parties - the English Court. | 0[ds]It is a well-settled principle that by agreement the parties cannot confer jurisdiction, where none exists, on a court to whichCPC applies, but this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign court; indeed in such cases the English Courts do permit invoking their jurisdiction. Thus, it is clear that the parties to a contract may agree to have their disputes resolved by a Foreign Court termed as a "neutral court" or "court of choice" creating exclusive or non-exclusive jurisdiction in it.From the above discussion the following principlesIn exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects:-(a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court;(b) if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and(c) the principle of comity - respect for the court in which the commencement of continuance of action/proceeding is sought to be restrained - must be borne in mind;(2) in a case where more forums than one are available, the court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexations or in a forum non-conveniens;(3) Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or non-exclusive jurisdiction of the court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case;(4) a court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have agreed to submit to the exclusive jurisdiction of a court including a foreign court, a forum of their choice in regard to the commencement or continuance of proceedings in the court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the court of choice because the essence of the jurisdiction of the court does not exist of because of a vis major or force majeure and the like;(5) where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to non-exclusive jurisdiction of the court of their choice which cannot be treated just an alternative forum;(6) a party to the contract containing jurisdiction clause cannot normally be prevented from approaching the court of choice of the parties as it would amount to aiding breach of the contract: yet when one of the parties to the jurisdiction clause approaches the court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that court cannot per se be treated as vexatious or oppressive nor can he court be said to be forum non-conveniens; and(7) the burden of establishing that the forum of choice is a forum non-conveniens or the proceedings therein are oppressive or vexatious would be on they party so contending to aver and prove the same.A plain reading of this clause shows that the parties have agreed that their contract will be governed by and be construed in accordance with English law and they have also agreed to submit to the non-exclusive jurisdiction of English Courts (without reference to English conflict of law rules). We have already observed above that recitals in regard to submission to exclusive or non-exclusive jurisdiction of a court of choice in an agreement are not determinative. However, as both the parties proceeded on the basis that they meant non-exclusive jurisdiction of the English Courts, on the facts of this case, the Court is relieved of the interpretation of jurisdiction clause. Normally, the court will give effect to the intention of the parties as expressed in the agreement entered into by them except when strong reasons justify disregard of the contractual obligations of the parties. In Donohues case (supra) although the parties to the agreement stipulated to submit to the exclusive jurisdiction of the English Courts, the House of Lords found that it would not be in the interest of justice to hold the parties to their contract as in that case strong reasons were shown by the respondent. It was felt necessary that a single trial of all the claims of the parties by one forum would be appropriate and as all the parties to the New York proceedings were not parties to the agreement stipulating exclusive jurisdiction of the English Court and as all the claims before the New York court did not arise out of the said contract so they could not have been tried in the English Court. It was urged that in the circumstances parallel proceedings - one in England and another in New York - would have to go on which might result in inconsistent decisions. Those facts were considered as strong reasons to decline to grant anti-suit injunction though the parties had agreed to the exclusive jurisdiction of the English Court. In contrast in SABAHs case (supra) even though GOP filed the suit first in the court of natural jurisdiction and sought anti-suit injunction against SABAH restraining them from proceeding with the action brought by them in the English Court, the Court of Appeal found that non-exclusive jurisdiction clause in the agreement of guarantee executed by GOP was binding on them. The action of GOP in filing the suit earlier in the court of natural jurisdiction was held to be clearly in breach of contract and in the context of the non-exclusive jurisdiction clause, oppressive and vexatious unless the GOP could show strong reasons as to why parallel proceeding would be justified. The only ground urged for continuance of proceedings in Pakistan Court was that it was a convenient forum which was considered not strong enough for the GOP to disregard the contractual obligation of submission to the jurisdiction of the English Court for resolution of disputes. The Court of Appeal, upheld the anti-suit injunction granted by the learned Judge at the first instance as also the order declining to stay the English suit.In the instant case, though the learned single judge proceeded on the prima facie finding that the proceedings in the English courts would be oppressive and vexatious, in our view, those findings, recorded at the stage of passing an ad interim order, would not bind the same learned judge much less they would bind the appellate court or the parties thereto at subsequent stage of the same proceedings because it cannot operate as issue estoppel. It cannot be laid down as a general principle that once the parties have agreed to submit to the jurisdiction of a foreign court, the proceedings or the action brought either in the court of natural jurisdiction or in the court of choice will per se be oppressive or vexatious. It depends on the facts of each case and the question whether the proceedings in a court are vexatious or oppressive has to be decided on the basis of the material brought before the court. Having perused the plaints in both the suits and the contract we are of the view that the proceedings in the English court for recovery of the minimum guaranteed amount under the contract cannot, at this stage, be said to be oppressive or vexatious. It is true that the courts would be inclined to grant anti-suit injunction to prevent breach of contractual obligations to submit to the exclusive or non-exclusive jurisdiction of the court of choice of the parties but that is not the only ground on which anti-suit injunction can be granted. As is apparent the appellants brought the suit in the court of natural jurisdiction for adjudication of the disputes arising under the contract for which the parties have agreed to submit to the non-exclusive jurisdiction of the English Court in accordance with English law though the English Court has no nexus with the parties or the subject-matter and is not the natural forum. But then the jurisdiction clause indicates that the intention of the parties is to have the disputes resolved in accordance with the principles on English law by an English Court. Unless good and sufficient reasons are shown by the appellants, the intention of the parties as evidence by their contract must be given effect to. Even when the appellants had filed the suit earlier in point of time in the Court of natural forum and the respondent brought action in the English court which is the agreed forum or forum of the choice having regard to the expressed intention of the parties, no good and sufficient reason is made out to grant anti-suit injunction to restrain the respondent from prosecuting the English action as such an order would clearly be in breach of agreement and the court will not, except when proceedings in foreign court of choice result in perpetuating injustice aid a party to commit breach of the agreement. To apply the principle in Donohues case good and sufficient reasons (strong reasons) should be shown to justify departure from the contractual obligations. Here, two contentions have been urged; the first is that the English Court is forum non-conveniens in view of the alleged breach of the agreement by the respondent in the manner not foreseen. This, in our view, is far from being a good and sufficient reasons to ignore the jurisdiction clause. Even otherwise that fact that the parties had agreed to resolve their disputes arising under the agreement, shows that they had foreseen possible breach of agreement by any of the parties and provided for the resolution of the disputes which might arise therefrom. In the context, the foreseeability test would take in circumstances which render approaching the forum of choice impossible like the court of choice merging with other court and losing its identity or a vis major etc., which would make it impossible for the party seeking anti-suit injunction, to prosecute the case before the forum of choice. In our view, on the facts of this case, the foresseability test cannot be extended to the manner of breach of the contract so as to turn the forum of choice into forum non-conveniens. Circumstances such as comparison of litigation expenses in England and in India or the hardship and incurring of heavy expenditure on taking the witnesses to the English Court, would be deemed to have been foreseen by the parties with they agreed to submit to the jurisdiction of the English Court in accordance with the principles of English law and the said reasons cannot be valid grounds to interdict prosecution of the action in the English Court of choice. And the second is that English Court has no connection with either of the parties or the subject-matter and it is not a court of natural jurisdiction. This reason can be taken note of when strong reasons are shown to disregard the contractual obligation. It cannot be a good and sufficient reason in itself to justify the court of natural jurisdiction to interdict action in a foreign court of choice of the parties.We, therefore, find no valid reasons to grant anti-suit injunction in favour of the appellants, in disregard of jurisdiction clause, to restrain the respondent from prosecuting the case in the foreign forum of the choice of the parties - the English | 0 | 9,365 | 2,189 | ### Instruction:
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action of GOP in filing the suit earlier in the court of natural jurisdiction was held to be clearly in breach of contract and in the context of the non-exclusive jurisdiction clause, oppressive and vexatious unless the GOP could show strong reasons as to why parallel proceeding would be justified. The only ground urged for continuance of proceedings in Pakistan Court was that it was a convenient forum which was considered not strong enough for the GOP to disregard the contractual obligation of submission to the jurisdiction of the English Court for resolution of disputes. The Court of Appeal, upheld the anti-suit injunction granted by the learned Judge at the first instance as also the order declining to stay the English suit. 27. In the instant case, though the learned single judge proceeded on the prima facie finding that the proceedings in the English courts would be oppressive and vexatious, in our view, those findings, recorded at the stage of passing an ad interim order, would not bind the same learned judge much less they would bind the appellate court or the parties thereto at subsequent stage of the same proceedings because it cannot operate as issue estoppel. It cannot be laid down as a general principle that once the parties have agreed to submit to the jurisdiction of a foreign court, the proceedings or the action brought either in the court of natural jurisdiction or in the court of choice will per se be oppressive or vexatious. It depends on the facts of each case and the question whether the proceedings in a court are vexatious or oppressive has to be decided on the basis of the material brought before the court. Having perused the plaints in both the suits and the contract we are of the view that the proceedings in the English court for recovery of the minimum guaranteed amount under the contract cannot, at this stage, be said to be oppressive or vexatious. It is true that the courts would be inclined to grant anti-suit injunction to prevent breach of contractual obligations to submit to the exclusive or non-exclusive jurisdiction of the court of choice of the parties but that is not the only ground on which anti-suit injunction can be granted. As is apparent the appellants brought the suit in the court of natural jurisdiction for adjudication of the disputes arising under the contract for which the parties have agreed to submit to the non-exclusive jurisdiction of the English Court in accordance with English law though the English Court has no nexus with the parties or the subject-matter and is not the natural forum. But then the jurisdiction clause indicates that the intention of the parties is to have the disputes resolved in accordance with the principles on English law by an English Court. Unless good and sufficient reasons are shown by the appellants, the intention of the parties as evidence by their contract must be given effect to. Even when the appellants had filed the suit earlier in point of time in the Court of natural forum and the respondent brought action in the English court which is the agreed forum or forum of the choice having regard to the expressed intention of the parties, no good and sufficient reason is made out to grant anti-suit injunction to restrain the respondent from prosecuting the English action as such an order would clearly be in breach of agreement and the court will not, except when proceedings in foreign court of choice result in perpetuating injustice aid a party to commit breach of the agreement. To apply the principle in Donohues case good and sufficient reasons (strong reasons) should be shown to justify departure from the contractual obligations. Here, two contentions have been urged; the first is that the English Court is forum non-conveniens in view of the alleged breach of the agreement by the respondent in the manner not foreseen. This, in our view, is far from being a good and sufficient reasons to ignore the jurisdiction clause. Even otherwise that fact that the parties had agreed to resolve their disputes arising under the agreement, shows that they had foreseen possible breach of agreement by any of the parties and provided for the resolution of the disputes which might arise therefrom. In the context, the foreseeability test would take in circumstances which render approaching the forum of choice impossible like the court of choice merging with other court and losing its identity or a vis major etc., which would make it impossible for the party seeking anti-suit injunction, to prosecute the case before the forum of choice. In our view, on the facts of this case, the foresseability test cannot be extended to the manner of breach of the contract so as to turn the forum of choice into forum non-conveniens. Circumstances such as comparison of litigation expenses in England and in India or the hardship and incurring of heavy expenditure on taking the witnesses to the English Court, would be deemed to have been foreseen by the parties with they agreed to submit to the jurisdiction of the English Court in accordance with the principles of English law and the said reasons cannot be valid grounds to interdict prosecution of the action in the English Court of choice. And the second is that English Court has no connection with either of the parties or the subject-matter and it is not a court of natural jurisdiction. This reason can be taken note of when strong reasons are shown to disregard the contractual obligation. It cannot be a good and sufficient reason in itself to justify the court of natural jurisdiction to interdict action in a foreign court of choice of the parties. 28. We, therefore, find no valid reasons to grant anti-suit injunction in favour of the appellants, in disregard of jurisdiction clause, to restrain the respondent from prosecuting the case in the foreign forum of the choice of the parties - the English Court.
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was binding on them. The action of GOP in filing the suit earlier in the court of natural jurisdiction was held to be clearly in breach of contract and in the context of the non-exclusive jurisdiction clause, oppressive and vexatious unless the GOP could show strong reasons as to why parallel proceeding would be justified. The only ground urged for continuance of proceedings in Pakistan Court was that it was a convenient forum which was considered not strong enough for the GOP to disregard the contractual obligation of submission to the jurisdiction of the English Court for resolution of disputes. The Court of Appeal, upheld the anti-suit injunction granted by the learned Judge at the first instance as also the order declining to stay the English suit.In the instant case, though the learned single judge proceeded on the prima facie finding that the proceedings in the English courts would be oppressive and vexatious, in our view, those findings, recorded at the stage of passing an ad interim order, would not bind the same learned judge much less they would bind the appellate court or the parties thereto at subsequent stage of the same proceedings because it cannot operate as issue estoppel. It cannot be laid down as a general principle that once the parties have agreed to submit to the jurisdiction of a foreign court, the proceedings or the action brought either in the court of natural jurisdiction or in the court of choice will per se be oppressive or vexatious. It depends on the facts of each case and the question whether the proceedings in a court are vexatious or oppressive has to be decided on the basis of the material brought before the court. Having perused the plaints in both the suits and the contract we are of the view that the proceedings in the English court for recovery of the minimum guaranteed amount under the contract cannot, at this stage, be said to be oppressive or vexatious. It is true that the courts would be inclined to grant anti-suit injunction to prevent breach of contractual obligations to submit to the exclusive or non-exclusive jurisdiction of the court of choice of the parties but that is not the only ground on which anti-suit injunction can be granted. As is apparent the appellants brought the suit in the court of natural jurisdiction for adjudication of the disputes arising under the contract for which the parties have agreed to submit to the non-exclusive jurisdiction of the English Court in accordance with English law though the English Court has no nexus with the parties or the subject-matter and is not the natural forum. But then the jurisdiction clause indicates that the intention of the parties is to have the disputes resolved in accordance with the principles on English law by an English Court. Unless good and sufficient reasons are shown by the appellants, the intention of the parties as evidence by their contract must be given effect to. Even when the appellants had filed the suit earlier in point of time in the Court of natural forum and the respondent brought action in the English court which is the agreed forum or forum of the choice having regard to the expressed intention of the parties, no good and sufficient reason is made out to grant anti-suit injunction to restrain the respondent from prosecuting the English action as such an order would clearly be in breach of agreement and the court will not, except when proceedings in foreign court of choice result in perpetuating injustice aid a party to commit breach of the agreement. To apply the principle in Donohues case good and sufficient reasons (strong reasons) should be shown to justify departure from the contractual obligations. Here, two contentions have been urged; the first is that the English Court is forum non-conveniens in view of the alleged breach of the agreement by the respondent in the manner not foreseen. This, in our view, is far from being a good and sufficient reasons to ignore the jurisdiction clause. Even otherwise that fact that the parties had agreed to resolve their disputes arising under the agreement, shows that they had foreseen possible breach of agreement by any of the parties and provided for the resolution of the disputes which might arise therefrom. In the context, the foreseeability test would take in circumstances which render approaching the forum of choice impossible like the court of choice merging with other court and losing its identity or a vis major etc., which would make it impossible for the party seeking anti-suit injunction, to prosecute the case before the forum of choice. In our view, on the facts of this case, the foresseability test cannot be extended to the manner of breach of the contract so as to turn the forum of choice into forum non-conveniens. Circumstances such as comparison of litigation expenses in England and in India or the hardship and incurring of heavy expenditure on taking the witnesses to the English Court, would be deemed to have been foreseen by the parties with they agreed to submit to the jurisdiction of the English Court in accordance with the principles of English law and the said reasons cannot be valid grounds to interdict prosecution of the action in the English Court of choice. And the second is that English Court has no connection with either of the parties or the subject-matter and it is not a court of natural jurisdiction. This reason can be taken note of when strong reasons are shown to disregard the contractual obligation. It cannot be a good and sufficient reason in itself to justify the court of natural jurisdiction to interdict action in a foreign court of choice of the parties.We, therefore, find no valid reasons to grant anti-suit injunction in favour of the appellants, in disregard of jurisdiction clause, to restrain the respondent from prosecuting the case in the foreign forum of the choice of the parties - the English
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M.P. Ram Mohan Raja Vs. State Of Tamil Nadu | of the matter afresh. Meanwhile, the allotment was further cancelled in 1992. This Court held that due to in ordinate delay in filing the writ petition, the High Court ought not to have entertained the writ petition and accordingly, set aside the order of the High Court. 13. So far as the question of delay is concerned, no hard and first rule can be laid down and it will depend on the facts of each case. In the present case, the facts stare at the face of it that on 8.10.1996 an order was passed by the Collector in pursuance to the order passed by the High Court, rejecting the application of the writ petitioner for consideration of the grant of mining lease. The writ petitioner sat tight over the matter and did not challenge the same up to 2003. This on the face of it appears to be very serious. A person who can sit tight for such a long time for no justifiable reason, cannot be given any benefit. 14. Learned counsel for the appellant submitted that when the High Court passed the order on 14.6.1996, at that time Rule 39 was in existence. Therefore, the case of the writ petitioner should have been decided by the High Court as if the Rule had not been deleted or repealed. In support thereof, learned counsel for the appellant has invited our attention to the following decisions of this Court. i) 1993 Supp (1) SCC 96 (II) In the matter of : Cauvery Water Disputes Tribunal. ii) AIR 1994 SC 1 State of Haryana & Ors. v. The Karnal Co-op. Farmers Society Limited etc. iii) AIR 2003 SC 833 Beg Raj Singh v. State of U.P. & Ors. 15. In the matter of Cauvery Water Disputes Tribunal, their Lordships held that Legislature can change the law in general by changing the basis on which a decision given by court but it cannot affect setting aside the decision inter parties itself. Similarly, in the case of State of Haryana & Ors. it was held that decree of civil court and judicial order holding that certain lands and immovable properties fell outside "shamilat deh" regulated by principal Act, subsequent amendment directing Assistant Collector to decide the claim by ignoring them was held to be unconstitutional as it encroaches upon judicial power. 16. In the case of Beg Raj Singh, the petitioner was granted mining lease for 3 to 5 years but the petitioner was erroneously granted lease for one year. It was held that a right accrued to the petitioner to continue for a minimum period of three years in terms of the policy decision and it was held that it cannot be curtailed because of lapse of time in litigation and on the ground that higher revenue would be earned by the Government by auctioning the mining rights. 17. Therefore the Court directed that the petitioner would be entitled to continue for a period of three years. Now, coming to the merits of the writ petition we find that the rule was already repealed on 27.6.1996 and the ground reality had also changed. So far as grant of mining and mineral lease is concerned, no person has a vested right in it. There is no quarrel on the legal proposition that if certain rights have been decided on the basis of the law which was obtaining at that time, that will not nullify the judicial decision unless the bases are taken out. In the present case, the rule under which the writ petitioner sought direction for consideration of his application has already been repealed within the time frame directed by the High Court. Therefore the basis on which the order was passed has been totally knocked out. Rule 39 on the basis of which direction was given was not in existence. Therefore, it could not have been possible for the authorities to have acceded to the request of the writ petitioner. More so, no one has a vested right in mineral lease. In this connection it will be more useful to refer to a decision of this Court in State of Tamil Nadu v. M/s. Hind Stone & Ors. [(1981) 2 SCC 205] . Their Lordships in the aforesaid case observed as follows: "The submission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms. No.1312 should be dealt with as if Rule 8-C did not exist." 18. Similarly in the case of P.T.R. Exports (Madras) Pvt. Ltd. v. Union of India [ (1996) 5 SCC 268 ] their Lordships reiterated the same position. | 0[ds]We are satisfied that there was no justification for the writ petitioner to have waited for a long time. Once the order was passed on 8.10.1996, then there was no need for the writ petitioner to have waited for such a long time. We are in full agreement with the view taken by the High Court. However, the High Court despite the fact that the writ petition was belated and suffered from laches entered into the controversy on the merits also and took the view that when Rule 39 was deleted within four weeks of the direction to the State Government to dispose of the application of the writ petitioner, there was no option with the Collector but to reject the application as the rule which was in force was repealed, therefore, the basis on which the order was passed was knocked out. Therefore, the High Court declined to grant any relief to the writ petitioner and dismissed the writ petition on merit also.So far as the question of delay is concerned, no hard and first rule can be laid down and it will depend on the facts of each case. In the present case, the facts stare at the face of it that on 8.10.1996 an order was passed by the Collector in pursuance to the order passed by the High Court, rejecting the application of the writ petitioner for consideration of the grant of mining lease. The writ petitioner sat tight over the matter and did not challenge the same up to 2003. This on the face of it appears to be very serious. A person who can sit tight for such a long time for no justifiable reason, cannot be given any benefit.Therefore the Court directed that the petitioner would be entitled to continue for a period of three years. Now, coming to the merits of the writ petition we find that the rule was already repealed on 27.6.1996 and the ground reality had also changed. So far as grant of mining and mineral lease is concerned, no person has a vested right in it. There is no quarrel on the legal proposition that if certain rights have been decided on the basis of the law which was obtaining at that time, that will not nullify the judicial decision unless the bases are taken out. In the present case, the rule under which the writ petitioner sought direction for consideration of his application has already been repealed within the time frame directed by the High Court. Therefore the basis on which the order was passed has been totally knocked out. Rule 39 on the basis of which direction was given was not in existence. Therefore, it could not have been possible for the authorities to have acceded to the request of the writ petitioner. More so, no one has a vested right in mineral lease. In this connection it will be more useful to refer to a decision of this Court in State of Tamil Nadu v. M/s. Hind Stone & Ors. [(1981) 2 SCC 205] . Their Lordships in the aforesaid case observed assubmission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rulenotwithstanding the fact that the applications had been made long prior to the date on which Rulecame into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms. No.1312 should be dealt with as if Rule18. Similarly in the case of P.T.R. Exports (Madras) Pvt. Ltd. v. Union of India [ (1996) 5 SCC 268 ] their Lordships reiterated the same position. | 0 | 3,291 | 858 | ### Instruction:
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of the matter afresh. Meanwhile, the allotment was further cancelled in 1992. This Court held that due to in ordinate delay in filing the writ petition, the High Court ought not to have entertained the writ petition and accordingly, set aside the order of the High Court. 13. So far as the question of delay is concerned, no hard and first rule can be laid down and it will depend on the facts of each case. In the present case, the facts stare at the face of it that on 8.10.1996 an order was passed by the Collector in pursuance to the order passed by the High Court, rejecting the application of the writ petitioner for consideration of the grant of mining lease. The writ petitioner sat tight over the matter and did not challenge the same up to 2003. This on the face of it appears to be very serious. A person who can sit tight for such a long time for no justifiable reason, cannot be given any benefit. 14. Learned counsel for the appellant submitted that when the High Court passed the order on 14.6.1996, at that time Rule 39 was in existence. Therefore, the case of the writ petitioner should have been decided by the High Court as if the Rule had not been deleted or repealed. In support thereof, learned counsel for the appellant has invited our attention to the following decisions of this Court. i) 1993 Supp (1) SCC 96 (II) In the matter of : Cauvery Water Disputes Tribunal. ii) AIR 1994 SC 1 State of Haryana & Ors. v. The Karnal Co-op. Farmers Society Limited etc. iii) AIR 2003 SC 833 Beg Raj Singh v. State of U.P. & Ors. 15. In the matter of Cauvery Water Disputes Tribunal, their Lordships held that Legislature can change the law in general by changing the basis on which a decision given by court but it cannot affect setting aside the decision inter parties itself. Similarly, in the case of State of Haryana & Ors. it was held that decree of civil court and judicial order holding that certain lands and immovable properties fell outside "shamilat deh" regulated by principal Act, subsequent amendment directing Assistant Collector to decide the claim by ignoring them was held to be unconstitutional as it encroaches upon judicial power. 16. In the case of Beg Raj Singh, the petitioner was granted mining lease for 3 to 5 years but the petitioner was erroneously granted lease for one year. It was held that a right accrued to the petitioner to continue for a minimum period of three years in terms of the policy decision and it was held that it cannot be curtailed because of lapse of time in litigation and on the ground that higher revenue would be earned by the Government by auctioning the mining rights. 17. Therefore the Court directed that the petitioner would be entitled to continue for a period of three years. Now, coming to the merits of the writ petition we find that the rule was already repealed on 27.6.1996 and the ground reality had also changed. So far as grant of mining and mineral lease is concerned, no person has a vested right in it. There is no quarrel on the legal proposition that if certain rights have been decided on the basis of the law which was obtaining at that time, that will not nullify the judicial decision unless the bases are taken out. In the present case, the rule under which the writ petitioner sought direction for consideration of his application has already been repealed within the time frame directed by the High Court. Therefore the basis on which the order was passed has been totally knocked out. Rule 39 on the basis of which direction was given was not in existence. Therefore, it could not have been possible for the authorities to have acceded to the request of the writ petitioner. More so, no one has a vested right in mineral lease. In this connection it will be more useful to refer to a decision of this Court in State of Tamil Nadu v. M/s. Hind Stone & Ors. [(1981) 2 SCC 205] . Their Lordships in the aforesaid case observed as follows: "The submission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms. No.1312 should be dealt with as if Rule 8-C did not exist." 18. Similarly in the case of P.T.R. Exports (Madras) Pvt. Ltd. v. Union of India [ (1996) 5 SCC 268 ] their Lordships reiterated the same position.
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We are satisfied that there was no justification for the writ petitioner to have waited for a long time. Once the order was passed on 8.10.1996, then there was no need for the writ petitioner to have waited for such a long time. We are in full agreement with the view taken by the High Court. However, the High Court despite the fact that the writ petition was belated and suffered from laches entered into the controversy on the merits also and took the view that when Rule 39 was deleted within four weeks of the direction to the State Government to dispose of the application of the writ petitioner, there was no option with the Collector but to reject the application as the rule which was in force was repealed, therefore, the basis on which the order was passed was knocked out. Therefore, the High Court declined to grant any relief to the writ petitioner and dismissed the writ petition on merit also.So far as the question of delay is concerned, no hard and first rule can be laid down and it will depend on the facts of each case. In the present case, the facts stare at the face of it that on 8.10.1996 an order was passed by the Collector in pursuance to the order passed by the High Court, rejecting the application of the writ petitioner for consideration of the grant of mining lease. The writ petitioner sat tight over the matter and did not challenge the same up to 2003. This on the face of it appears to be very serious. A person who can sit tight for such a long time for no justifiable reason, cannot be given any benefit.Therefore the Court directed that the petitioner would be entitled to continue for a period of three years. Now, coming to the merits of the writ petition we find that the rule was already repealed on 27.6.1996 and the ground reality had also changed. So far as grant of mining and mineral lease is concerned, no person has a vested right in it. There is no quarrel on the legal proposition that if certain rights have been decided on the basis of the law which was obtaining at that time, that will not nullify the judicial decision unless the bases are taken out. In the present case, the rule under which the writ petitioner sought direction for consideration of his application has already been repealed within the time frame directed by the High Court. Therefore the basis on which the order was passed has been totally knocked out. Rule 39 on the basis of which direction was given was not in existence. Therefore, it could not have been possible for the authorities to have acceded to the request of the writ petitioner. More so, no one has a vested right in mineral lease. In this connection it will be more useful to refer to a decision of this Court in State of Tamil Nadu v. M/s. Hind Stone & Ors. [(1981) 2 SCC 205] . Their Lordships in the aforesaid case observed assubmission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rulenotwithstanding the fact that the applications had been made long prior to the date on which Rulecame into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms. No.1312 should be dealt with as if Rule18. Similarly in the case of P.T.R. Exports (Madras) Pvt. Ltd. v. Union of India [ (1996) 5 SCC 268 ] their Lordships reiterated the same position.
|
Ramesh Bhai Vs. State Of Rajasthan | of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.8. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.9. Sir Alfred Wills in his admirable book "Wills Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted". 10. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. 11. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 ), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 12. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must or `should and not `may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 13. These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180 ), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261 ) and in State of U.P. v. Ram Balak & Anr. [2008 (13) SCALE 541.] 14. The admitted position is that the dead body was found on 20 th January, 1996 whereas accused persons were stated to have been seen in the company of the deceased on 8th and 9th January, 1996. PW 9, the wife of the deceased admitted that the parties separated on 9th January, 1996. The missing persons report was lodged on 12th January, 1996 by PW 11 the nephew of the deceased. 15. The only evidence which appears to have been pressed into service by the prosecution was that the injections were recovered from a lane near the house of the accused. 16. It is to be noted that the High Court recorded a finding as if it was proved through the prosecution evidence and medical evidence and the report of Doctor that the cause of death of the deceased was `Organo Phosphorous which was administered to him. This finding is apparently wrong. The doctors opinion as is evident from Exh.P15-1 that the cause of death was not possible to be noted because the body was decomposed.17. According to the FSL report Exh.P4 medicine called Diazepam "Tranquilizer" was found in the stomach intestine, lever, heart, kidney and lungs etc. In view of the shaky nature of the evidence adduced it would be unsafe to convict the appellants. The conviction as recorded by the trial court and upheld by the High Court stand quashed. The appellants be set at liberty forthwith unless required to be in custody in connection with in any other case. We place our appreciation for the able manner in which Mr. Shiv Kumar Suri, learned Amicus Curiae assisted the court. | 1[ds]16. It is to be noted that the High Court recorded a finding as if it was proved through the prosecution evidence and medical evidence and the report of Doctor that the cause of death of the deceased was `Organo Phosphorous which was administered to him. This finding is apparently wrong. The doctors opinion as is evident from Exh.P15-1 that the cause of death was not possible to be noted because the body was decomposed.17. According to the FSL report Exh.P4 medicine called Diazepam "Tranquilizer" was found in the stomach intestine, lever, heart, kidney and lungs etc. In view of the shaky nature of the evidence adduced it would be unsafe to convict the appellants. The conviction as recorded by the trial court and upheld by the High Court stand quashed. The appellants be set at liberty forthwith unless required to be in custody in connection with in any other case. We place our appreciation for the able manner in which Mr. Shiv Kumar Suri, learned Amicus Curiae assisted the court. | 1 | 2,162 | 191 | ### 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 any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.8. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.9. Sir Alfred Wills in his admirable book "Wills Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted". 10. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. 11. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 ), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 12. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must or `should and not `may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 13. These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180 ), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261 ) and in State of U.P. v. Ram Balak & Anr. [2008 (13) SCALE 541.] 14. The admitted position is that the dead body was found on 20 th January, 1996 whereas accused persons were stated to have been seen in the company of the deceased on 8th and 9th January, 1996. PW 9, the wife of the deceased admitted that the parties separated on 9th January, 1996. The missing persons report was lodged on 12th January, 1996 by PW 11 the nephew of the deceased. 15. The only evidence which appears to have been pressed into service by the prosecution was that the injections were recovered from a lane near the house of the accused. 16. It is to be noted that the High Court recorded a finding as if it was proved through the prosecution evidence and medical evidence and the report of Doctor that the cause of death of the deceased was `Organo Phosphorous which was administered to him. This finding is apparently wrong. The doctors opinion as is evident from Exh.P15-1 that the cause of death was not possible to be noted because the body was decomposed.17. According to the FSL report Exh.P4 medicine called Diazepam "Tranquilizer" was found in the stomach intestine, lever, heart, kidney and lungs etc. In view of the shaky nature of the evidence adduced it would be unsafe to convict the appellants. The conviction as recorded by the trial court and upheld by the High Court stand quashed. The appellants be set at liberty forthwith unless required to be in custody in connection with in any other case. We place our appreciation for the able manner in which Mr. Shiv Kumar Suri, learned Amicus Curiae assisted the court.
### Response:
1
### Explanation:
16. It is to be noted that the High Court recorded a finding as if it was proved through the prosecution evidence and medical evidence and the report of Doctor that the cause of death of the deceased was `Organo Phosphorous which was administered to him. This finding is apparently wrong. The doctors opinion as is evident from Exh.P15-1 that the cause of death was not possible to be noted because the body was decomposed.17. According to the FSL report Exh.P4 medicine called Diazepam "Tranquilizer" was found in the stomach intestine, lever, heart, kidney and lungs etc. In view of the shaky nature of the evidence adduced it would be unsafe to convict the appellants. The conviction as recorded by the trial court and upheld by the High Court stand quashed. The appellants be set at liberty forthwith unless required to be in custody in connection with in any other case. We place our appreciation for the able manner in which Mr. Shiv Kumar Suri, learned Amicus Curiae assisted the court.
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Rajesh Burmann Vs. Mitul Chatterjee (Barman) | of the means of living, or food, clothing, shelter, etc., particularly where the legal relation of the parties is such that one is bound to support the other, as between father and child or husband and wife". 25. Likewise, the word ‘support as defined in the said Dictionary (p. 1439) reads as under; "That which furnishes a livelihood; a source or means of living; subsistence, sustenance, maintenance, or living. In a broad sense the term includes all such means of living as would enable one to live in the degree of comfort suitable and becoming to his station of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, or other proper cognate purposes; also proper care, nursing and medical attendance in sickness and suitable burial at death". 26. The Court below also considered some of the decisions cited before them. In Pradeep Kumar Kapoor v. Ms. Shailja Kapoor, AIR 1989 Delhi 10, the High Court of Delhi interpreted ‘maintenance and ‘support under Section 24 of the Hindu Marriage Act, 1955 and observed; "Under Section 24 of the Act, the court has to see if the applicant who may either be wife or husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, and then award expenses of the proceeding and such sum every month, having regard to the applicants own income and the income of the respondent which may seem to the court to be reasonable. This section may be contrasted with Section 25 of the Act which deals with permanent alimony and maintenance. Under Section 25, the court may order the respondent to pay to the applicant for her or his maintenance and support, till her or his lifetime, either a lumpsum amount or such monthly or periodical sum, having regard to the respondents own income and other property, if any, and the income and other property of the applicant, the conduct of the parties and other circumstances of the case, which the court might deem just. It may be noticed that heading of Section 24 of the Act is "Maintenance pendente lite and expenses of proceedings". The section, however, does not use the word "maintenance", but, to me, it appears that the words "support" and "maintenance" are synonymous, "Support" means "to provide money for a person to live on", like "he supports a family" or "he supports his old mother." Maintenance is "an act of maintaining", i.e. to support with money. For example, "he is too poor to maintain his family". It may be useful at this stage to refer to the definition of "maintenance" as given in the Hindu Adoptions and Maintenance Act, 1956 (for short the Act of 1956). Under Section 3 of that Act, "maintenance" includes-(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment ; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage. I would, therefore, think that when we talk of maintenance and support, the definition of "maintenance" as given in the Act of 1956 should be adopted. Section 18 of the Act of 1956 also refers to maintenance of wife and gives the circumstances under which a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance". 27. In Atul Sashikant Mude v. Niranjana Atul Mude, AIR 1998 Bombay 234, the Court considered the provisions of the Hindu Adoptions and Maintenance Act, 1956 and held that a Court is empowered to pass interim and ad-interim orders of maintenance. It was held that the inclusive definition of the ‘maintenance under the Act would include food, clothing, residence, education, medical attendance and treatment. 28. In R. Suresh v. Smt. Chandra, AIR 2003 Karnataka 183, a similar question arose before the High Court of Karnataka. Construing the word ‘support in Section 24 of the Hindu Marriage Act, 1955, the Court held that the word ‘support occurring in the said section can be given the same meaning attributed to the word ‘maintenance as defined in Section 3 of the Hindu Adoptions and Maintenance Act, 1956 which would include provisions for food, clothing, residence, education, medical attendance and treatment. 29. Recently, in Ajay Saxena v. Smt. Rachna Saxena, AIR 2007 Delhi 39, analysing the provisions of Hindu Adoptions and Maintenance Act, 1956, the Court held that in a suit under Section 18 of the Act, the wife can claim interim maintenance. It was further held that such interim maintenance may also cover expenses incurred towards medical treatment. Obligation of the husband to pay such expenses cannot be deferred till final adjudication of the suit. Nor can husband avoid obligation to pay further sum to his wife towards medical reimbursement on the ground that the amount of interim maintenance being passed included entire expenses on medical treatment. [See also Mangat Mal & Anr. V. Puni Devi (Smt) & Anr., (1995) 6 SCC 88 ]. 30. As already indicated earlier, the right of the wife to claim interim maintenance has been upheld by the Court and the said decision has attained finality. Apart from the provisions of Hindu Marriage Act, 1955 or Hindu Adoptions and Maintenance Act, 1956, in our considered opinion, the two expressions, ‘maintenance and ‘support in the Act of 1954 are comprehensive and of wide amplitude and they would take within their sweep medical expenses. 31. On the basis of material on record, the trial Court, after hearing the parties, held that the wife was entitled to medical expenses which order was slightly modified by the High Court upholding her right to get medical reimbursement from her husband. We see no infirmity in the decision or reasoning of the Courts below which calls for our interference in exercise of discretionary and equitable jurisdiction under Article 136 of the Constitution. The appeal in our view, therefore, has no substance and must be dismissed. 32. For the foregoing reasons, the | 0[ds]In our opinion,no interference is called for against the order passed by the trial Court and modified by the High Court. So far as maintainability of application filed by the wife is concerned, we see no substance in the contention of the learned counsel for the husband that such an application is not tenable. Proceedings had been initiated in accordance with the provisions of the 1954 Act and matrimonial suit was pending. In the circumstances, in our view, it was open to the applicant wife who had initiated the proceedings for dissolution of marriage in a competent Court to institute such application. Even otherwise, looking to the scheme of the Act, it is clear that provisions of the Code would apply to Courts exercising power under the Act. The preliminary objection raised by the learned counsel for the appellant as to the jurisdiction of the trial Court has no substance and must bealready indicated earlier, the right of the wife to claim interim maintenance has been upheld by the Court and the said decision has attained finality. Apart from the provisions of Hindu Marriage Act, 1955 or Hindu Adoptions and Maintenance Act, 1956, in our considered opinion, the two expressions, ‘maintenance and ‘support in the Act of 1954 are comprehensive and of wide amplitude and they would take within their sweep medicalthe basis of material on record, the trial Court, after hearing the parties, held that the wife was entitled to medical expenses which order was slightly modified by the High Court upholding her right to get medical reimbursement from her husband. We see no infirmity in the decision or reasoning of the Courts below which calls for our interference in exercise of discretionary and equitable jurisdiction under Article 136 of the Constitution. The appeal in our view, therefore, has no substance and must be dismissed. | 0 | 3,869 | 339 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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of the means of living, or food, clothing, shelter, etc., particularly where the legal relation of the parties is such that one is bound to support the other, as between father and child or husband and wife". 25. Likewise, the word ‘support as defined in the said Dictionary (p. 1439) reads as under; "That which furnishes a livelihood; a source or means of living; subsistence, sustenance, maintenance, or living. In a broad sense the term includes all such means of living as would enable one to live in the degree of comfort suitable and becoming to his station of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, or other proper cognate purposes; also proper care, nursing and medical attendance in sickness and suitable burial at death". 26. The Court below also considered some of the decisions cited before them. In Pradeep Kumar Kapoor v. Ms. Shailja Kapoor, AIR 1989 Delhi 10, the High Court of Delhi interpreted ‘maintenance and ‘support under Section 24 of the Hindu Marriage Act, 1955 and observed; "Under Section 24 of the Act, the court has to see if the applicant who may either be wife or husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, and then award expenses of the proceeding and such sum every month, having regard to the applicants own income and the income of the respondent which may seem to the court to be reasonable. This section may be contrasted with Section 25 of the Act which deals with permanent alimony and maintenance. Under Section 25, the court may order the respondent to pay to the applicant for her or his maintenance and support, till her or his lifetime, either a lumpsum amount or such monthly or periodical sum, having regard to the respondents own income and other property, if any, and the income and other property of the applicant, the conduct of the parties and other circumstances of the case, which the court might deem just. It may be noticed that heading of Section 24 of the Act is "Maintenance pendente lite and expenses of proceedings". The section, however, does not use the word "maintenance", but, to me, it appears that the words "support" and "maintenance" are synonymous, "Support" means "to provide money for a person to live on", like "he supports a family" or "he supports his old mother." Maintenance is "an act of maintaining", i.e. to support with money. For example, "he is too poor to maintain his family". It may be useful at this stage to refer to the definition of "maintenance" as given in the Hindu Adoptions and Maintenance Act, 1956 (for short the Act of 1956). Under Section 3 of that Act, "maintenance" includes-(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment ; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage. I would, therefore, think that when we talk of maintenance and support, the definition of "maintenance" as given in the Act of 1956 should be adopted. Section 18 of the Act of 1956 also refers to maintenance of wife and gives the circumstances under which a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance". 27. In Atul Sashikant Mude v. Niranjana Atul Mude, AIR 1998 Bombay 234, the Court considered the provisions of the Hindu Adoptions and Maintenance Act, 1956 and held that a Court is empowered to pass interim and ad-interim orders of maintenance. It was held that the inclusive definition of the ‘maintenance under the Act would include food, clothing, residence, education, medical attendance and treatment. 28. In R. Suresh v. Smt. Chandra, AIR 2003 Karnataka 183, a similar question arose before the High Court of Karnataka. Construing the word ‘support in Section 24 of the Hindu Marriage Act, 1955, the Court held that the word ‘support occurring in the said section can be given the same meaning attributed to the word ‘maintenance as defined in Section 3 of the Hindu Adoptions and Maintenance Act, 1956 which would include provisions for food, clothing, residence, education, medical attendance and treatment. 29. Recently, in Ajay Saxena v. Smt. Rachna Saxena, AIR 2007 Delhi 39, analysing the provisions of Hindu Adoptions and Maintenance Act, 1956, the Court held that in a suit under Section 18 of the Act, the wife can claim interim maintenance. It was further held that such interim maintenance may also cover expenses incurred towards medical treatment. Obligation of the husband to pay such expenses cannot be deferred till final adjudication of the suit. Nor can husband avoid obligation to pay further sum to his wife towards medical reimbursement on the ground that the amount of interim maintenance being passed included entire expenses on medical treatment. [See also Mangat Mal & Anr. V. Puni Devi (Smt) & Anr., (1995) 6 SCC 88 ]. 30. As already indicated earlier, the right of the wife to claim interim maintenance has been upheld by the Court and the said decision has attained finality. Apart from the provisions of Hindu Marriage Act, 1955 or Hindu Adoptions and Maintenance Act, 1956, in our considered opinion, the two expressions, ‘maintenance and ‘support in the Act of 1954 are comprehensive and of wide amplitude and they would take within their sweep medical expenses. 31. On the basis of material on record, the trial Court, after hearing the parties, held that the wife was entitled to medical expenses which order was slightly modified by the High Court upholding her right to get medical reimbursement from her husband. We see no infirmity in the decision or reasoning of the Courts below which calls for our interference in exercise of discretionary and equitable jurisdiction under Article 136 of the Constitution. The appeal in our view, therefore, has no substance and must be dismissed. 32. For the foregoing reasons, the
### Response:
0
### Explanation:
In our opinion,no interference is called for against the order passed by the trial Court and modified by the High Court. So far as maintainability of application filed by the wife is concerned, we see no substance in the contention of the learned counsel for the husband that such an application is not tenable. Proceedings had been initiated in accordance with the provisions of the 1954 Act and matrimonial suit was pending. In the circumstances, in our view, it was open to the applicant wife who had initiated the proceedings for dissolution of marriage in a competent Court to institute such application. Even otherwise, looking to the scheme of the Act, it is clear that provisions of the Code would apply to Courts exercising power under the Act. The preliminary objection raised by the learned counsel for the appellant as to the jurisdiction of the trial Court has no substance and must bealready indicated earlier, the right of the wife to claim interim maintenance has been upheld by the Court and the said decision has attained finality. Apart from the provisions of Hindu Marriage Act, 1955 or Hindu Adoptions and Maintenance Act, 1956, in our considered opinion, the two expressions, ‘maintenance and ‘support in the Act of 1954 are comprehensive and of wide amplitude and they would take within their sweep medicalthe basis of material on record, the trial Court, after hearing the parties, held that the wife was entitled to medical expenses which order was slightly modified by the High Court upholding her right to get medical reimbursement from her husband. We see no infirmity in the decision or reasoning of the Courts below which calls for our interference in exercise of discretionary and equitable jurisdiction under Article 136 of the Constitution. The appeal in our view, therefore, has no substance and must be dismissed.
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Mamtaz & Ors Vs. Gulsuma Alias Kulusuma | 2021 by which the High Court has allowed the said appeal preferred by the respondent herein and has quashed and set aside the order passed by the First Appellate Court in R.A. No. 22 of 2020 and has also quashed and set aside the judgment and decree passed by the Trial Court and remanded the matter to the Trial Court for fresh disposal in accordance with law, the original plaintiffs have preferred the present appeal. 2. The facts leading to the present appeal, which are necessary for the purpose of disposal of the present appeal in nutshell are as under:- 2.1 That the appellants herein filed a suit for declaration and possession. The Trial Court by judgment and decree dated 08.01.2018 decreed the said suit. As such the said suit proceeded ex parte and the judgment and decree passed by the Trial Court was ex parte decree. 2.2 Two remedies were available to the defendant – one, filing an application for setting aside the ex parte decree under Order IX Rule 13 of the Civil Procedure Code (hereinafter referred to as CPC) and the other preferring an appeal against the judgment and decree passed by the Trial Court. 2.3 The defendant – respondent herein preferred the second option and preferred appeal before the First Appellate Court against the judgment and decree passed by the Trial Court. There was a delay of 2 years and 7 months in preferring the first appeal. Therefore, the respondent herein – original defendant -the appellant before the First Appellate Court filed I.A. No. 1 of 2020 requesting to condone the delay. However, the appellant before the First Appellate Court – original defendant for whatever reason withdrew the said application for condonation of delay. 2.4 That the first appeal came up before the First Appellate Court. As there was no fresh application to condone the delay and the earlier condonation of delay application requesting to condone the delay of 2 years and 7 months was withdrawn, by order dated 10.12.2020, the First Appellate Court dismissed the first appeal on the ground that in absence of any application to condone the delay the appeal under Section 96 CPC shall not maintainable. Thus, the First Appellate Court dismissed the first appeal solely on the aforesaid ground of limitation and the First Appellate Court did not go into the merits of the case at all. 2.5 Feeling aggrieved and dissatisfied with the order passed by the First Appellate Court dismissing the appeal as not maintainable in absence of any delay condoned application, the respondent herein – original defendant – appellant before the First Appellate Court preferred second appeal before the High Court. By the impugned judgment and order, the High Court has allowed the said second appeal and has not only set aside the judgment and order passed by the First Appellate Court dismissing the appeal as not maintainable in absence of delay condoned application, but has also set aside the ex parte judgment and decree passed by the Trial Court as if the High Court was considering the order passed in an application under Order IX Rule 13 CPC and has also quashed and set aside the judgment and decree passed by the Trial Court and has remanded the matter to the Trial Court for fresh decision of the suit in accordance with law. 2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original plaintiffs have preferred the present appeal. 3. We have heard Shri Sharanagouda Patil, learned counsel appearing on behalf of the appellants and Shri S.N. Bhat, learned Senior Advocate appearing on behalf of the contesting respondent – original defendant. 4. Having heard the learned counsel for the respective parties and considering the facts narrated hereinabove, we are of the opinion that the impugned judgment and order passed by the High Court quashing and setting aside the judgment and decree passed by the Trial Court and remanding the matter back to the Trial Court is unsustainable. 5. It is required to be noted that what was challenged before the High Court was the order/judgment and order passed by the First Appellate Court dismissing the first appeal under Section 96 of the CPC as not maintainable in absence of any delay condoned application. There was no decision by the First Appellate Court on merits. If the High Court was of the opinion that the First Appellate Court erred in not condoning the delay in appeal and dismissing the appeal on the ground of limitation, in that case the High Court could have set aside the order passed by the First Appellate Court dismissing the appeal on the ground of limitation and thereafter remand the matter to the First Appellate Court to decide the appeal on merits. 6. From the impugned judgment and order passed by the High Court, it appears that the High Court proceeded further with the hearing of the appeal as if the High Court was considering the appeal against the order passed on an application under Order IX Rule 13 CPC, whereas the appeal was against the order and decree passed by the Trial Court, which was affirmed by the First Appellate Court as barred by limitation. Therefore, the procedure adopted by the High Court is unknown to the procedure known to law under the provisions of the CPC. Therefore, the impugned judgment and order passed by the High Court is unsustainable. 7. At this stage, Shri S.N. Bhat, learned Senior Advocate appearing on behalf of the respondent herein - original defendant – appellant before the First Appellate Court has requested to permit the original defendant – appellant before the First Appellate Court to revive the application for condonation of delay being I.A. No.1 of 2020, which was withdrawn mistakenly on wrong applying the provisions of the Limitation Act. Shri Bhat, learned Senior Advocate has submitted that if the original defendant is not permitted to revive the application for condonation of delay, he would be remediless. | 1[ds]4. Having heard the learned counsel for the respective parties and considering the facts narrated hereinabove, we are of the opinion that the impugned judgment and order passed by the High Court quashing and setting aside the judgment and decree passed by the Trial Court and remanding the matter back to the Trial Court is unsustainable.5. It is required to be noted that what was challenged before the High Court was the order/judgment and order passed by the First Appellate Court dismissing the first appeal under Section 96 of the CPC as not maintainable in absence of any delay condoned application. There was no decision by the First Appellate Court on merits. If the High Court was of the opinion that the First Appellate Court erred in not condoning the delay in appeal and dismissing the appeal on the ground of limitation, in that case the High Court could have set aside the order passed by the First Appellate Court dismissing the appeal on the ground of limitation and thereafter remand the matter to the First Appellate Court to decide the appeal on merits.6. From the impugned judgment and order passed by the High Court, it appears that the High Court proceeded further with the hearing of the appeal as if the High Court was considering the appeal against the order passed on an application under Order IX Rule 13 CPC, whereas the appeal was against the order and decree passed by the Trial Court, which was affirmed by the First Appellate Court as barred by limitation. Therefore, the procedure adopted by the High Court is unknown to the procedure known to law under the provisions of the CPC. Therefore, the impugned judgment and order passed by the High Court is unsustainable. | 1 | 1,102 | 311 | ### 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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2021 by which the High Court has allowed the said appeal preferred by the respondent herein and has quashed and set aside the order passed by the First Appellate Court in R.A. No. 22 of 2020 and has also quashed and set aside the judgment and decree passed by the Trial Court and remanded the matter to the Trial Court for fresh disposal in accordance with law, the original plaintiffs have preferred the present appeal. 2. The facts leading to the present appeal, which are necessary for the purpose of disposal of the present appeal in nutshell are as under:- 2.1 That the appellants herein filed a suit for declaration and possession. The Trial Court by judgment and decree dated 08.01.2018 decreed the said suit. As such the said suit proceeded ex parte and the judgment and decree passed by the Trial Court was ex parte decree. 2.2 Two remedies were available to the defendant – one, filing an application for setting aside the ex parte decree under Order IX Rule 13 of the Civil Procedure Code (hereinafter referred to as CPC) and the other preferring an appeal against the judgment and decree passed by the Trial Court. 2.3 The defendant – respondent herein preferred the second option and preferred appeal before the First Appellate Court against the judgment and decree passed by the Trial Court. There was a delay of 2 years and 7 months in preferring the first appeal. Therefore, the respondent herein – original defendant -the appellant before the First Appellate Court filed I.A. No. 1 of 2020 requesting to condone the delay. However, the appellant before the First Appellate Court – original defendant for whatever reason withdrew the said application for condonation of delay. 2.4 That the first appeal came up before the First Appellate Court. As there was no fresh application to condone the delay and the earlier condonation of delay application requesting to condone the delay of 2 years and 7 months was withdrawn, by order dated 10.12.2020, the First Appellate Court dismissed the first appeal on the ground that in absence of any application to condone the delay the appeal under Section 96 CPC shall not maintainable. Thus, the First Appellate Court dismissed the first appeal solely on the aforesaid ground of limitation and the First Appellate Court did not go into the merits of the case at all. 2.5 Feeling aggrieved and dissatisfied with the order passed by the First Appellate Court dismissing the appeal as not maintainable in absence of any delay condoned application, the respondent herein – original defendant – appellant before the First Appellate Court preferred second appeal before the High Court. By the impugned judgment and order, the High Court has allowed the said second appeal and has not only set aside the judgment and order passed by the First Appellate Court dismissing the appeal as not maintainable in absence of delay condoned application, but has also set aside the ex parte judgment and decree passed by the Trial Court as if the High Court was considering the order passed in an application under Order IX Rule 13 CPC and has also quashed and set aside the judgment and decree passed by the Trial Court and has remanded the matter to the Trial Court for fresh decision of the suit in accordance with law. 2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original plaintiffs have preferred the present appeal. 3. We have heard Shri Sharanagouda Patil, learned counsel appearing on behalf of the appellants and Shri S.N. Bhat, learned Senior Advocate appearing on behalf of the contesting respondent – original defendant. 4. Having heard the learned counsel for the respective parties and considering the facts narrated hereinabove, we are of the opinion that the impugned judgment and order passed by the High Court quashing and setting aside the judgment and decree passed by the Trial Court and remanding the matter back to the Trial Court is unsustainable. 5. It is required to be noted that what was challenged before the High Court was the order/judgment and order passed by the First Appellate Court dismissing the first appeal under Section 96 of the CPC as not maintainable in absence of any delay condoned application. There was no decision by the First Appellate Court on merits. If the High Court was of the opinion that the First Appellate Court erred in not condoning the delay in appeal and dismissing the appeal on the ground of limitation, in that case the High Court could have set aside the order passed by the First Appellate Court dismissing the appeal on the ground of limitation and thereafter remand the matter to the First Appellate Court to decide the appeal on merits. 6. From the impugned judgment and order passed by the High Court, it appears that the High Court proceeded further with the hearing of the appeal as if the High Court was considering the appeal against the order passed on an application under Order IX Rule 13 CPC, whereas the appeal was against the order and decree passed by the Trial Court, which was affirmed by the First Appellate Court as barred by limitation. Therefore, the procedure adopted by the High Court is unknown to the procedure known to law under the provisions of the CPC. Therefore, the impugned judgment and order passed by the High Court is unsustainable. 7. At this stage, Shri S.N. Bhat, learned Senior Advocate appearing on behalf of the respondent herein - original defendant – appellant before the First Appellate Court has requested to permit the original defendant – appellant before the First Appellate Court to revive the application for condonation of delay being I.A. No.1 of 2020, which was withdrawn mistakenly on wrong applying the provisions of the Limitation Act. Shri Bhat, learned Senior Advocate has submitted that if the original defendant is not permitted to revive the application for condonation of delay, he would be remediless.
### Response:
1
### Explanation:
4. Having heard the learned counsel for the respective parties and considering the facts narrated hereinabove, we are of the opinion that the impugned judgment and order passed by the High Court quashing and setting aside the judgment and decree passed by the Trial Court and remanding the matter back to the Trial Court is unsustainable.5. It is required to be noted that what was challenged before the High Court was the order/judgment and order passed by the First Appellate Court dismissing the first appeal under Section 96 of the CPC as not maintainable in absence of any delay condoned application. There was no decision by the First Appellate Court on merits. If the High Court was of the opinion that the First Appellate Court erred in not condoning the delay in appeal and dismissing the appeal on the ground of limitation, in that case the High Court could have set aside the order passed by the First Appellate Court dismissing the appeal on the ground of limitation and thereafter remand the matter to the First Appellate Court to decide the appeal on merits.6. From the impugned judgment and order passed by the High Court, it appears that the High Court proceeded further with the hearing of the appeal as if the High Court was considering the appeal against the order passed on an application under Order IX Rule 13 CPC, whereas the appeal was against the order and decree passed by the Trial Court, which was affirmed by the First Appellate Court as barred by limitation. Therefore, the procedure adopted by the High Court is unknown to the procedure known to law under the provisions of the CPC. Therefore, the impugned judgment and order passed by the High Court is unsustainable.
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The National, Union Of Commercial Employees And Another Vs. M. R. Meher, Industrial Tribunal, Bombay And Others | and general way, it is not easy to conceive that a liberal profession like that of an attorney could have been intended by the Legislature to fall within the definition of "industry" under S. 2 (j). The very concept of the liberal professions has its own special and distinctive features which do not readily permit the inclusion of the liberal professions into the four corners of industrial law. The essential basis of an industrial dispute is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service. This essential basis would be absent in the case of liberal professions. A person following a liberal profession does not carry on his profession in any intelligible sense with the active co-operation of his employees and the principal, if not the sole, capital which he brings into his profession is his special or peculiar intellectual and educational equipment. That is why on broad and general considerations which cannot be ignored, a liberal profession like that of an attorney must, we think, be deemed to be outside the definition of "industry" under S. 2 (j).13. In this connection, it would be useful to refer to the observations made by Isaccs and Rich JJ. in the Federated Municipal and Shire Councils Employees Union etc. v. Lord Mayor, Alderman, Councillors, and Citizens of Melbourne, (1918-19) 26 CLR 508 at p. 554. "The concept of an industrial dispute", said the learned Judges,"may thus be formulated: Industrial disputes occur when, in relation to operations in which capital and labour are contributed in co-operation for the satisfaction of human wants or desires, those engaged in co-operation dispute as to the basis to be observed, by the parties engaged, respecting either a share of the product or any other terms and conditions of their co-operation. This formula excludes the two extreme contentious of the claimant and the respondents respectively. It excludes, for instance, the legal and the medical professions, because they are not carried on in any intelligible sense by the co-operation of capital and labour and do not come within the sphere of industrialism. It includes, where the necessary cooperation exists, disputes between employers and employees, employees and employees, and employers and employers. It implies that "industry" to lead to an industrial dispute, is not, as the claimant contends, merely industry in the abstract sense, as if it alone effected the result, but it must be acting and be considered in association with its co-operator "capital" in some form so that the result is, in a sense, the outcome of their combined efforts".Those observations support the view which we have taken about the character of cooperation between the employer and employees which affords a relevant test in determining whether the enterprise in question is an industry or not. Co-operation to which the test refers must be co-operation between the employer and his employees which is essential for carrying out the purpose of the enterprise and the service to be rendered by the enterprise should be the direct outcome of the combined efforts of the employer and the employees.14. There is one more minor point which still remains to be considered. Mr. Chari argued that it would be idle for the respondents to contend that the work of their firm is not an industry under S. 2 (j) because they have themselves described their work as the work of carrying on business of solicitors. It appears that the document of partnership executed between the different partners of the firm provided, inter alia, that all expenses of the business of the partnership or losses incurred in carrying on the business of partnership shall be borne out of the profits or capital of the partnership. It is on the use of the word "business" in this clause that Mr. Chari relies. In support of his argument, he referred us to a decision of Justice Farwell in Dickson v. Jones, 1939-3 All E R 182. In that case, the Court was concerned to examine the validity of an agreement between the plaintiff, solicitor, and his junior clerk, who was subsequently articled to him. This agreement provided that the latter would not :"at any time hereafter practice as a solicitor within a radius of 15 miles from the Town Hall, Hanley, aforesaid, or solicit any client of the solicitor.Mr. Justice Farwell held that"the combination of a restriction over an area so great as a radius 15 miles and one extending to the whole life of the defendant, articled clerk, was, in the circumstances, wider than was necessary for the protection of the plaintiff and was, therefore, unenforceable as being in undue restraint of trade".The argument is that the validity of an agreement between a solicitor and his articled clerk was tested on the ground that it was an agreement in restraint of trade and so the solicitors work must be held to be a "trade" under S. 2 (j). There is obviously no force in this argument. If in their deed of partnership the respondents described the work of partnership as the business of solicitors can hardly assist the appellants in contending that the work carried on by the firm is industry under S. 2 (j). The work of a solicitor is, in a loose sense, of course, business and so if the solicitors entered into an agreement in restraint of trade, its validity would have to be judged on the basis that their work is in the nature of business. That, however, is hardly relevant in determining the question as to whether the said work is an industry under S. 2 (j); as we have already made it clear, the definition of the word "industry" is couched in words of very wide denotation. But that precisely is the reason why a line has to be drawn in a just and fair manner to demarcate the limitations of their scope and that necessarily leads to the adoption of some working test. | 0[ds]7. In our opinion the distinction sought to be drawn by Mr. Chari between professional service rendered by an individual acting by himself and that rendered by a firm is not logical for the purpose of the application of the test in question. What is true about a firm of solicitors would be equally true about an individual solicitor working by himself. As the firm engages different categories of employees, a single solicitor also engages different categories of employees to carry out different types of work and so the presence of co-operation between the employees working in a solicitors office and their employer, the solicitor, could be attributed to the work of a single solicitor as much as to the work of the firm, and, therefore, if Mr. Chari is right and if the firm of solicitors is held to be an industry under the Act, the office of an individual solicitor cannot escape the application of the definition of S. 2 (j). That is why we think it would not be reasonable to deal with the matter on the narrow ground suggested by Mr. Chari by confining our attention to the organisational or institutionalised aspect of a solicitorsWhen in the Hospital case, 1960-2 S C R 866 : (AIR 1960 S C 610) this Court referred to the organisation of the undertaking involving the co-operation of capital and labour or the employer and his employees, it obviously meant the co-operation essential and necessary for the purpose of rendering material service or for the purpose of production. It would be realised that the concept of industry postulates partnership between capital and labour or between the employer and his employees. It is under this partnership that the employer contributes his capital and the employees their labour and the joint contribution of capital and labour leads directly to the production which the industry has in view. In other words, the co-operation between capital and labour or between the employer and his employees which is treated as a working test in determining whether any activity amounts to an industry, is the cooperation which is directly involved in the production of goods or in the rendering of service. It cannot be suggested that every form or aspect of human activity in which capital and labour co-operate or employer and employees assist each other is an industry. The distinguishing feature of an industry is that for the production of goods or for the rendering of service, co-operation between capital and labour or between the employer and his employees must be direct and must be essential.Let us consider the case of the hospitals. In the hospitals, the service to the patients begins with proper diagnosis followed by treatment, either medical or surgical, according to the requirements of the case. In the case of medical treatment, the patients receive medical treatment according to the prescription and are kept in the hospital for further treatment. In surgical cases, the patients receive surgical treatment by way of operation and then are kept in the hospital for further treatment until they are discharged. During the period of such treatment, all their needs have to be attended to, food has to be supplied to them, nursing assistance has to be given to them, medical help from time to time has to be rendered and all incidental services required for their recovery have also to be rendered. Now, in the case of the activities of an organised hospital, the co-operation of the employees is thus directly involved in rendering one kind of service or another which it is the duty of the hospital to render. It is true that the patients are drawn to the hospitals primarily because of the doctors or surgeons associated with them. But there can be no doubt that the work of the hospital and its purpose are not achieved merely when a surgical operation is performed or medical prescription provided. After medical treatment is determined or a surgical operation is performed, the patient coming to a hospital as an indoor patient needs all kinds of medical assistance until he is discharged and the services rendered to him both initially and thereafter until his discharge are all services which the hospital has been established to render and it is in the rendering of the said services that the employees of the hospital co-operate and play their part. That is how the test of co-operation between the employer and his employees is satisfied in regard to hospitals which are properly organised and maintained. It is, of course, true that the quality, the importance and the nature of the service rendered by different categories of employees in a hospital would not be the same, but never the less, all the categories of service rendered by respective classes of employees in a hospital are essential for the purpose of giving service to the patients which is the objective of the hospital. That is how the hospitals satisfy the test of co-operation between the employer and his employees.11. Does a solicitors firm satisfy that test ? Superficially considered, the solicitors firm is no doubt organised as an industrial concern would be organised. There are different categories of servants employed by a firm, each category being assigned separate duties and functions. But it must be remembered that the service rendered by a solicitor functioning either individually or working together with partners is service which is essentially individual; it depends upon the professional equipment, knowledge and efficiency of the solicitor concerned. Subsidiary work which is purely of an incidental type and which is intended to assist the solicitor in doing his job has no direct relation to the professional service ultimately rendered by the solicitor. For his own convenience, a solicitor may employ a clerk because a clerk would type his opinion; for his convenience, a solicitor may employ a menial servant to keep his chamber clean and in order; and it is likely that the number of clerks may be large if the concern is prosperous and so would be the number of menial servants. But the work done either by the typist or the Stenographer or by the menial servant or other employees in a solicitors firm is not directly concerned with the service which the solicitor renders to his client and cannot, therefore, be said to satisfy the test of co-operation between the employer and the employees which is relevant to the purpose. There can be no doubt that for carrying on the work of a solicitor efficiently, accounts have to be kept and correspondence carried on and this work would need the employment of clerks and accountants. But has the work of the clerk who types correspondence or that of the accountant who keeps accounts any direct or essential nexus or connection with the advice which it is the duty of the solicitor to give to his client? The answer to this question must, in our opinion, be in the negative. There is no doubt, a kind of co-operation between the solicitor and his employees, but that cooperation has no direct or immediate relation to the professional service which the solicitor renders to his client. Therefore in our opinion, it is difficult to accept the plea that a solicitors firm carrying on the work of an Attorney is an industry within the meaning of S.2 (j).There is no doubt that the words used in S.2 (j) are very wide, but as has been held by this Court in the case of Hospitals, 1960-2 SCR 866 : (AIR 1960 SC 610 ) it is necessary to draw a line in a fair and just manner putting some limitation upon the width of the said words and a working test has been enunciated in that behalf. The application of the said test to the facts in the present appeal leads to the conclusion that the work of solicitors which the respondents are carrying on as a firm is not an industry under S. 2(j) of the Act. That is the view taken by the Bombay High Court and we think, that view isobservations support the view which we have taken about the character of cooperation between the employer and employees which affords a relevant test in determining whether the enterprise in question is an industry or not. Co-operation to which the test refers must be co-operation between the employer and his employees which is essential for carrying out the purpose of the enterprise and the service to be rendered by the enterprise should be the direct outcome of the combined efforts of the employer and thein their deed of partnership the respondents described the work of partnership as the business of solicitors can hardly assist the appellants in contending that the work carried on by the firm is industry under S. 2 (j). The work of a solicitor is, in a loose sense, of course, business and so if the solicitors entered into an agreement in restraint of trade, its validity would have to be judged on the basis that their work is in the nature of business. That, however, is hardly relevant in determining the question as to whether the said work is an industry under S. 2 (j); as we have already made it clear, the definition of the word "industry" is couched in words of very wide denotation. But that precisely is the reason why a line has to be drawn in a just and fair manner to demarcate the limitations of their scope and that necessarily leads to the adoption of some working test. | 0 | 4,486 | 1,716 | ### 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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and general way, it is not easy to conceive that a liberal profession like that of an attorney could have been intended by the Legislature to fall within the definition of "industry" under S. 2 (j). The very concept of the liberal professions has its own special and distinctive features which do not readily permit the inclusion of the liberal professions into the four corners of industrial law. The essential basis of an industrial dispute is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service. This essential basis would be absent in the case of liberal professions. A person following a liberal profession does not carry on his profession in any intelligible sense with the active co-operation of his employees and the principal, if not the sole, capital which he brings into his profession is his special or peculiar intellectual and educational equipment. That is why on broad and general considerations which cannot be ignored, a liberal profession like that of an attorney must, we think, be deemed to be outside the definition of "industry" under S. 2 (j).13. In this connection, it would be useful to refer to the observations made by Isaccs and Rich JJ. in the Federated Municipal and Shire Councils Employees Union etc. v. Lord Mayor, Alderman, Councillors, and Citizens of Melbourne, (1918-19) 26 CLR 508 at p. 554. "The concept of an industrial dispute", said the learned Judges,"may thus be formulated: Industrial disputes occur when, in relation to operations in which capital and labour are contributed in co-operation for the satisfaction of human wants or desires, those engaged in co-operation dispute as to the basis to be observed, by the parties engaged, respecting either a share of the product or any other terms and conditions of their co-operation. This formula excludes the two extreme contentious of the claimant and the respondents respectively. It excludes, for instance, the legal and the medical professions, because they are not carried on in any intelligible sense by the co-operation of capital and labour and do not come within the sphere of industrialism. It includes, where the necessary cooperation exists, disputes between employers and employees, employees and employees, and employers and employers. It implies that "industry" to lead to an industrial dispute, is not, as the claimant contends, merely industry in the abstract sense, as if it alone effected the result, but it must be acting and be considered in association with its co-operator "capital" in some form so that the result is, in a sense, the outcome of their combined efforts".Those observations support the view which we have taken about the character of cooperation between the employer and employees which affords a relevant test in determining whether the enterprise in question is an industry or not. Co-operation to which the test refers must be co-operation between the employer and his employees which is essential for carrying out the purpose of the enterprise and the service to be rendered by the enterprise should be the direct outcome of the combined efforts of the employer and the employees.14. There is one more minor point which still remains to be considered. Mr. Chari argued that it would be idle for the respondents to contend that the work of their firm is not an industry under S. 2 (j) because they have themselves described their work as the work of carrying on business of solicitors. It appears that the document of partnership executed between the different partners of the firm provided, inter alia, that all expenses of the business of the partnership or losses incurred in carrying on the business of partnership shall be borne out of the profits or capital of the partnership. It is on the use of the word "business" in this clause that Mr. Chari relies. In support of his argument, he referred us to a decision of Justice Farwell in Dickson v. Jones, 1939-3 All E R 182. In that case, the Court was concerned to examine the validity of an agreement between the plaintiff, solicitor, and his junior clerk, who was subsequently articled to him. This agreement provided that the latter would not :"at any time hereafter practice as a solicitor within a radius of 15 miles from the Town Hall, Hanley, aforesaid, or solicit any client of the solicitor.Mr. Justice Farwell held that"the combination of a restriction over an area so great as a radius 15 miles and one extending to the whole life of the defendant, articled clerk, was, in the circumstances, wider than was necessary for the protection of the plaintiff and was, therefore, unenforceable as being in undue restraint of trade".The argument is that the validity of an agreement between a solicitor and his articled clerk was tested on the ground that it was an agreement in restraint of trade and so the solicitors work must be held to be a "trade" under S. 2 (j). There is obviously no force in this argument. If in their deed of partnership the respondents described the work of partnership as the business of solicitors can hardly assist the appellants in contending that the work carried on by the firm is industry under S. 2 (j). The work of a solicitor is, in a loose sense, of course, business and so if the solicitors entered into an agreement in restraint of trade, its validity would have to be judged on the basis that their work is in the nature of business. That, however, is hardly relevant in determining the question as to whether the said work is an industry under S. 2 (j); as we have already made it clear, the definition of the word "industry" is couched in words of very wide denotation. But that precisely is the reason why a line has to be drawn in a just and fair manner to demarcate the limitations of their scope and that necessarily leads to the adoption of some working test.
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0
### Explanation:
the hospital to render. It is true that the patients are drawn to the hospitals primarily because of the doctors or surgeons associated with them. But there can be no doubt that the work of the hospital and its purpose are not achieved merely when a surgical operation is performed or medical prescription provided. After medical treatment is determined or a surgical operation is performed, the patient coming to a hospital as an indoor patient needs all kinds of medical assistance until he is discharged and the services rendered to him both initially and thereafter until his discharge are all services which the hospital has been established to render and it is in the rendering of the said services that the employees of the hospital co-operate and play their part. That is how the test of co-operation between the employer and his employees is satisfied in regard to hospitals which are properly organised and maintained. It is, of course, true that the quality, the importance and the nature of the service rendered by different categories of employees in a hospital would not be the same, but never the less, all the categories of service rendered by respective classes of employees in a hospital are essential for the purpose of giving service to the patients which is the objective of the hospital. That is how the hospitals satisfy the test of co-operation between the employer and his employees.11. Does a solicitors firm satisfy that test ? Superficially considered, the solicitors firm is no doubt organised as an industrial concern would be organised. There are different categories of servants employed by a firm, each category being assigned separate duties and functions. But it must be remembered that the service rendered by a solicitor functioning either individually or working together with partners is service which is essentially individual; it depends upon the professional equipment, knowledge and efficiency of the solicitor concerned. Subsidiary work which is purely of an incidental type and which is intended to assist the solicitor in doing his job has no direct relation to the professional service ultimately rendered by the solicitor. For his own convenience, a solicitor may employ a clerk because a clerk would type his opinion; for his convenience, a solicitor may employ a menial servant to keep his chamber clean and in order; and it is likely that the number of clerks may be large if the concern is prosperous and so would be the number of menial servants. But the work done either by the typist or the Stenographer or by the menial servant or other employees in a solicitors firm is not directly concerned with the service which the solicitor renders to his client and cannot, therefore, be said to satisfy the test of co-operation between the employer and the employees which is relevant to the purpose. There can be no doubt that for carrying on the work of a solicitor efficiently, accounts have to be kept and correspondence carried on and this work would need the employment of clerks and accountants. But has the work of the clerk who types correspondence or that of the accountant who keeps accounts any direct or essential nexus or connection with the advice which it is the duty of the solicitor to give to his client? The answer to this question must, in our opinion, be in the negative. There is no doubt, a kind of co-operation between the solicitor and his employees, but that cooperation has no direct or immediate relation to the professional service which the solicitor renders to his client. Therefore in our opinion, it is difficult to accept the plea that a solicitors firm carrying on the work of an Attorney is an industry within the meaning of S.2 (j).There is no doubt that the words used in S.2 (j) are very wide, but as has been held by this Court in the case of Hospitals, 1960-2 SCR 866 : (AIR 1960 SC 610 ) it is necessary to draw a line in a fair and just manner putting some limitation upon the width of the said words and a working test has been enunciated in that behalf. The application of the said test to the facts in the present appeal leads to the conclusion that the work of solicitors which the respondents are carrying on as a firm is not an industry under S. 2(j) of the Act. That is the view taken by the Bombay High Court and we think, that view isobservations support the view which we have taken about the character of cooperation between the employer and employees which affords a relevant test in determining whether the enterprise in question is an industry or not. Co-operation to which the test refers must be co-operation between the employer and his employees which is essential for carrying out the purpose of the enterprise and the service to be rendered by the enterprise should be the direct outcome of the combined efforts of the employer and thein their deed of partnership the respondents described the work of partnership as the business of solicitors can hardly assist the appellants in contending that the work carried on by the firm is industry under S. 2 (j). The work of a solicitor is, in a loose sense, of course, business and so if the solicitors entered into an agreement in restraint of trade, its validity would have to be judged on the basis that their work is in the nature of business. That, however, is hardly relevant in determining the question as to whether the said work is an industry under S. 2 (j); as we have already made it clear, the definition of the word "industry" is couched in words of very wide denotation. But that precisely is the reason why a line has to be drawn in a just and fair manner to demarcate the limitations of their scope and that necessarily leads to the adoption of some working test.
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Ramu Gope And Ors Vs. State Of Bihar | of the unlawful assembly in prosecution of the common object of the unlawful assembly or the injuries were such that the members of the assembly knew to be likely to be caused; (4) that Harihar Gope was a member of the unlawful assembly, and he caused injuries to Budhia in prosecution of the common object of the assembly in consequence of which she died. The result of the finding of the High Court is that the first three parts are made out but not the last. On that account however we are unable to hold that the appellants who are proved to be members of the unlawful assembly escape liability for conviction under Section 302, read with S.149 I. P. Code. On the finding recorded by the High Court it inevitably follows that fatal injuries were caused to Budhia by a member of the unlawful assembly which the members of the assembly knew to be likely to be caused in prosecution of the common object of the unlawful assembly. The State, however, failed to establish that it was Harihar Gope who caused those injuries. Failure to establish that a member or members of the unlawful assembly named by the witnesses for the State caused the particular injury which resulted in the death of Budhia will not result in the rejection of the case of the State against persons proved to be members of the unlawful assembly, if the common object of the unlawful assembly and the commission of the offence in the prosecution of the common object or which the members knew to be likely to be committed be proved.4. Where a member of an unlawful assembly is named as an offender who committed an offence for which the members of the unlawful assembly are liable under Section 149, I. P. Code, and the evidence at the trial is insufficient to establish that the named person committed the act attributed to him, he may still be convicted of the offence if it is proved that he was a member of the unlawful assembly and that the act was done by some member of the assembly in prosecution of the common object or which the members knew was likely to be committed in prosecution of that object. In our judgment, failure to prove the presence of the named offender among the members of the unlawful assembly will not affect the criminality of those who are proved to be members of the assembly if the other conditions of the applicability of Section 149, I. P. Code be established. If the Court refuses to accept the testimony of witnesses who speak to the presence of and part played by a named offender, the weight to be attached to the testimony of those witnesses insofar as they involve others may undoubtedly be affected, but it can not be said that because the testimony of witnesses who depose to the assault by the named offender is not accepted, other members proved to be members of the unlawful assembly escape liability arising from the commission of the offence the prosecution of the common object of the assembly.5. The High Court found that on the day in question more than 30 persons formed an unlawful assembly, the common object of which was to rescue cattle detained by the villages of Mananki Khandha, and to kill those who resisted; and that members of the unlawful assembly committed an assault on the villagers and severely beat up the villagers including Budhia in prosecution of the common object.The offence being such that it was to be likely to be committed, every person who was a member of that unlawful assembly at the time of the commission of the offence would by virtue of Section 149, I. P. Code be guilty of the offence committed.The argument that Harihar Gope alone had the object of causing the death of Budhia cannot on the evidence be accepted as correct. The object to beat up and kill those who resisted the rescue of the cattle detained was according to the case for the prosecution common to all members of the unlawful assembly, and that object was established by abundant evidence, Proof of the common object of the unlawful assembly did not depend upon the presence therein of Harihar Gope.Failure to establish that Harihar Gope was a member of the unlawful assembly did not in our judgment, affect the liability of the persons proved to be members of the unlawful assembly for the acts done in prosecution of its common object, or which they knew to be likely to be committed in prosecution of the object thereof.When a concerted attack is made on the victim by a large number of persons it is often difficult to determine the actual part played by each offender. But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence.6. There is clear evidence on the record to show that Budhia was one of those persons upon whom an attack was made by the unlawful assembly of which the appellants and others were members. In the assault made by the members of the assembly Budhia as well as other persons were injured. On the findings of the High Court, the offender who actually caused injuries to Budhia cannot be ascertained it follows that the injuries were caused to Budhia by some member of the unlawful assembly, and that Budhia succumbed to those injuries. In our Judgment, the order of conviction of the appellants, other than Harihar Gope, for the offence under S. 302 read with S. 149 I. P. Code is not rendered illegal, because Harihar Gope is held not to have been a member of the unlawful assembly. | 0[ds]The result of the finding of the High Court is that the first three parts are made out but not the last. On that account however we are unable to hold that the appellants who are proved to be members of the unlawful assembly escape liability for conviction under Section 302, read with S.149 I. P. Code. On the finding recorded by the High Court it inevitably follows that fatal injuries were caused to Budhia by a member of the unlawful assembly which the members of the assembly knew to be likely to be caused in prosecution of the common object of the unlawful assembly. The State, however, failed to establish that it was Harihar Gope who caused those injuries. Failure to establish that a member or members of the unlawful assembly named by the witnesses for the State caused the particular injury which resulted in the death of Budhia will not result in the rejection of the case of the State against persons proved to be members of the unlawful assembly, if the common object of the unlawful assembly and the commission of the offence in the prosecution of the common object or which the members knew to be likely to be committed beour judgment, failure to prove the presence of the named offender among the members of the unlawful assembly will not affect the criminality of those who are proved to be members of the assembly if the other conditions of the applicability of Section 149, I. P. Code be established. If the Court refuses to accept the testimony of witnesses who speak to the presence of and part played by a named offender, the weight to be attached to the testimony of those witnesses insofar as they involve others may undoubtedly be affected, but it can not be said that because the testimony of witnesses who depose to the assault by the named offender is not accepted, other members proved to be members of the unlawful assembly escape liability arising from the commission of the offence the prosecution of the common object of the assembly.5. The High Court found that on the day in question more than 30 persons formed an unlawful assembly, the common object of which was to rescue cattle detained by the villages of Mananki Khandha, and to kill those who resisted; and that members of the unlawful assembly committed an assault on the villagers and severely beat up the villagers including Budhia in prosecution of the common object.The offence being such that it was to be likely to be committed, every person who was a member of that unlawful assembly at the time of the commission of the offence would by virtue of Section 149, I. P. Code be guilty of the offence committed.The argument that Harihar Gope alone had the object of causing the death of Budhia cannot on the evidence be accepted as correct. The object to beat up and kill those who resisted the rescue of the cattle detained was according to the case for the prosecution common to all members of the unlawful assembly, and that object was established by abundant evidence, Proof of the common object of the unlawful assembly did not depend upon the presence therein of Harihar Gope.Failure to establish that Harihar Gope was a member of the unlawful assembly did not in our judgment, affect the liability of the persons proved to be members of the unlawful assembly for the acts done in prosecution of its common object, or which they knew to be likely to be committed in prosecution of the object thereof.When a concerted attack is made on the victim by a large number of persons it is often difficult to determine the actual part played by each offender. But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence.6. There is clear evidence on the record to show that Budhia was one of those persons upon whom an attack was made by the unlawful assembly of which the appellants and others were members. In the assault made by the members of the assembly Budhia as well as other persons were injured. On the findings of the High Court, the offender who actually caused injuries to Budhia cannot be ascertained it follows that the injuries were caused to Budhia by some member of the unlawful assembly, and that Budhia succumbed to those injuries. In our Judgment, the order of conviction of the appellants, other than Harihar Gope, for the offence under S. 302 read with S. 149 I. P. Code is not rendered illegal, because Harihar Gope is held not to have been a member of the unlawful assembly. | 0 | 1,683 | 872 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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of the unlawful assembly in prosecution of the common object of the unlawful assembly or the injuries were such that the members of the assembly knew to be likely to be caused; (4) that Harihar Gope was a member of the unlawful assembly, and he caused injuries to Budhia in prosecution of the common object of the assembly in consequence of which she died. The result of the finding of the High Court is that the first three parts are made out but not the last. On that account however we are unable to hold that the appellants who are proved to be members of the unlawful assembly escape liability for conviction under Section 302, read with S.149 I. P. Code. On the finding recorded by the High Court it inevitably follows that fatal injuries were caused to Budhia by a member of the unlawful assembly which the members of the assembly knew to be likely to be caused in prosecution of the common object of the unlawful assembly. The State, however, failed to establish that it was Harihar Gope who caused those injuries. Failure to establish that a member or members of the unlawful assembly named by the witnesses for the State caused the particular injury which resulted in the death of Budhia will not result in the rejection of the case of the State against persons proved to be members of the unlawful assembly, if the common object of the unlawful assembly and the commission of the offence in the prosecution of the common object or which the members knew to be likely to be committed be proved.4. Where a member of an unlawful assembly is named as an offender who committed an offence for which the members of the unlawful assembly are liable under Section 149, I. P. Code, and the evidence at the trial is insufficient to establish that the named person committed the act attributed to him, he may still be convicted of the offence if it is proved that he was a member of the unlawful assembly and that the act was done by some member of the assembly in prosecution of the common object or which the members knew was likely to be committed in prosecution of that object. In our judgment, failure to prove the presence of the named offender among the members of the unlawful assembly will not affect the criminality of those who are proved to be members of the assembly if the other conditions of the applicability of Section 149, I. P. Code be established. If the Court refuses to accept the testimony of witnesses who speak to the presence of and part played by a named offender, the weight to be attached to the testimony of those witnesses insofar as they involve others may undoubtedly be affected, but it can not be said that because the testimony of witnesses who depose to the assault by the named offender is not accepted, other members proved to be members of the unlawful assembly escape liability arising from the commission of the offence the prosecution of the common object of the assembly.5. The High Court found that on the day in question more than 30 persons formed an unlawful assembly, the common object of which was to rescue cattle detained by the villages of Mananki Khandha, and to kill those who resisted; and that members of the unlawful assembly committed an assault on the villagers and severely beat up the villagers including Budhia in prosecution of the common object.The offence being such that it was to be likely to be committed, every person who was a member of that unlawful assembly at the time of the commission of the offence would by virtue of Section 149, I. P. Code be guilty of the offence committed.The argument that Harihar Gope alone had the object of causing the death of Budhia cannot on the evidence be accepted as correct. The object to beat up and kill those who resisted the rescue of the cattle detained was according to the case for the prosecution common to all members of the unlawful assembly, and that object was established by abundant evidence, Proof of the common object of the unlawful assembly did not depend upon the presence therein of Harihar Gope.Failure to establish that Harihar Gope was a member of the unlawful assembly did not in our judgment, affect the liability of the persons proved to be members of the unlawful assembly for the acts done in prosecution of its common object, or which they knew to be likely to be committed in prosecution of the object thereof.When a concerted attack is made on the victim by a large number of persons it is often difficult to determine the actual part played by each offender. But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence.6. There is clear evidence on the record to show that Budhia was one of those persons upon whom an attack was made by the unlawful assembly of which the appellants and others were members. In the assault made by the members of the assembly Budhia as well as other persons were injured. On the findings of the High Court, the offender who actually caused injuries to Budhia cannot be ascertained it follows that the injuries were caused to Budhia by some member of the unlawful assembly, and that Budhia succumbed to those injuries. In our Judgment, the order of conviction of the appellants, other than Harihar Gope, for the offence under S. 302 read with S. 149 I. P. Code is not rendered illegal, because Harihar Gope is held not to have been a member of the unlawful assembly.
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0
### Explanation:
The result of the finding of the High Court is that the first three parts are made out but not the last. On that account however we are unable to hold that the appellants who are proved to be members of the unlawful assembly escape liability for conviction under Section 302, read with S.149 I. P. Code. On the finding recorded by the High Court it inevitably follows that fatal injuries were caused to Budhia by a member of the unlawful assembly which the members of the assembly knew to be likely to be caused in prosecution of the common object of the unlawful assembly. The State, however, failed to establish that it was Harihar Gope who caused those injuries. Failure to establish that a member or members of the unlawful assembly named by the witnesses for the State caused the particular injury which resulted in the death of Budhia will not result in the rejection of the case of the State against persons proved to be members of the unlawful assembly, if the common object of the unlawful assembly and the commission of the offence in the prosecution of the common object or which the members knew to be likely to be committed beour judgment, failure to prove the presence of the named offender among the members of the unlawful assembly will not affect the criminality of those who are proved to be members of the assembly if the other conditions of the applicability of Section 149, I. P. Code be established. If the Court refuses to accept the testimony of witnesses who speak to the presence of and part played by a named offender, the weight to be attached to the testimony of those witnesses insofar as they involve others may undoubtedly be affected, but it can not be said that because the testimony of witnesses who depose to the assault by the named offender is not accepted, other members proved to be members of the unlawful assembly escape liability arising from the commission of the offence the prosecution of the common object of the assembly.5. The High Court found that on the day in question more than 30 persons formed an unlawful assembly, the common object of which was to rescue cattle detained by the villages of Mananki Khandha, and to kill those who resisted; and that members of the unlawful assembly committed an assault on the villagers and severely beat up the villagers including Budhia in prosecution of the common object.The offence being such that it was to be likely to be committed, every person who was a member of that unlawful assembly at the time of the commission of the offence would by virtue of Section 149, I. P. Code be guilty of the offence committed.The argument that Harihar Gope alone had the object of causing the death of Budhia cannot on the evidence be accepted as correct. The object to beat up and kill those who resisted the rescue of the cattle detained was according to the case for the prosecution common to all members of the unlawful assembly, and that object was established by abundant evidence, Proof of the common object of the unlawful assembly did not depend upon the presence therein of Harihar Gope.Failure to establish that Harihar Gope was a member of the unlawful assembly did not in our judgment, affect the liability of the persons proved to be members of the unlawful assembly for the acts done in prosecution of its common object, or which they knew to be likely to be committed in prosecution of the object thereof.When a concerted attack is made on the victim by a large number of persons it is often difficult to determine the actual part played by each offender. But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence.6. There is clear evidence on the record to show that Budhia was one of those persons upon whom an attack was made by the unlawful assembly of which the appellants and others were members. In the assault made by the members of the assembly Budhia as well as other persons were injured. On the findings of the High Court, the offender who actually caused injuries to Budhia cannot be ascertained it follows that the injuries were caused to Budhia by some member of the unlawful assembly, and that Budhia succumbed to those injuries. In our Judgment, the order of conviction of the appellants, other than Harihar Gope, for the offence under S. 302 read with S. 149 I. P. Code is not rendered illegal, because Harihar Gope is held not to have been a member of the unlawful assembly.
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Lala Ram Swarup And Others Vs. Shikar Chand And Another | that the jurisdiction conferred on the Commissioner under S. 3 (3) is exactly similar to the jurisdiction conferred on the High Court under S. 115 of the Code of Civil Procedure. It will be recalled that S. 115 of the Code confers revisional jurisdiction on the High Court to make such order as it thinks fit in a given case, if the subordinate Court whose order is brought before the High Court under S. 115"appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in exercise of its jurisdiction illegally or with material irregularity".There is no doubt that the requirements of Cls. (a), (b) and (c) all centre round the question about the jurisdiction of the subordinate Court, and the view which has been accepted by the majority decision under appeal is that the same limitation must be imported in construing the scope of the authority and power conferred on the Commissioner by S. 3 (3).23. Let us examine whether this conclusion is right. In construing the provision of S. 3 (3), one factor which is patent is that it does not refer to any considerations of jurisdiction at all.In fact, it is not easy to conceive of a limitation as to jurisdiction being relevant in S. 3 (3) because the said provision deals with orders passed by District Magistrate, and the District Magistrates normally would have jurisdiction to deal with applications made by landlords. But quite apart from this aspect of the matter, the words used in S. 3 (3) are unambiguous. There are three categories of cases in which the Commissioner can interfere with the order passed by the District Magistrate. If the District Magistrate has acted illegally the Commissioner can interfere with his order, so can he interfere with the order if the District Magistrate has acted with material irregularity; and lastly, the Commissioner can interfere with the order of the District Magistrate if the District Magistrate has wrongly refused to act. This last clause is wide enough to empower the Commissioner to correct the error committed by the District Magistrate in making an order brought before him; quite clearly if the District Magistrate refuses to grant permission and the Commissioner thinks that in doing so, he has committed an error, that would be a case where the District Magistrate "has wrongly refused to act", and that would give the Commissioner jurisdiction to exercise his revisional power.24. It is significant that the revisional application can be made to the Commissioner only against order passed by the District Magistrate granting or refusing to grant such permission. It is, we think, fallacious to assume that a party can move the Commissioner under S. 3 (3) in cases where the District Magistrate just refuses to make an order on the application made by the landlord for permission to bring a suit against the tenant. If a District Magistrate just does not deal with the application and passes no order on it, the party aggrieved may be justified in applying for an appropriate writ to the High Court or adopt some other suitable remedy in law; but a revision in such a case does not appear to be competent under S. 3 (3). Besides, the illegality or the irregularity to which S. 3 (3) refers need not necessarily be correlated with questions of jurisdiction. Therefore, we are satisfied that the High Court was not justified in introducing a limitation pertaining to questions of jurisdiction in determining the scope of the width of the revisional power conferred on the Commissioner by S. 3 (3). That is why it must be held that the High Court was in error in coming to the conclusion that the permission granted by the Commissioner in exercise of the powers conferred on him by S. 3 (3) is invalid in law. As we have already emphasised, the only plea which can be raised before a Civil Court in relation to orders passed under the relevant provisions of the Act can be a plea which, if sustained, would render the order wholly invalid and as such, a nullity. No other plea can be raised, because all other pleas are barred by Ss. 3 (4) and 16 of the Act.25. In this connection, we may incidentally point out that by a subsequent amendment of S. 3 (3), the Legislature has made it clear that its intention is to confer wide jurisdiction on the Commissioner. The amendment in question has been introduced by Act 17 of 1954. The amended provision reads thus:-"The Commissioner shall hear the application made under sub-section (2), as far as may be, within six weeks from the date of making it, and he may, if he is not satisfied as to the correctness, legality or property of the order passed by the District Magistrate or as to the regularity of proceedings held before him, alter or reverse his order, or make such other order as may be just and proper There is no doubt that under this amended provision, the Commissioner can deal not only with the legality, but also with the correctness and property of the order passed by District Magistrate. In our opinion, the position about the Commissioners powers was not different even under the unamended provision."26. It may also be relevant to point out that the power conferred on the State Government at all material times by S. 7-F, was very wide. As we have already indicated, in exercise of its powers under S. 7-F, the State Government can pass such orders as appear to it to be necessary in the ends of justice. Therefore, there is no doubt that the relevant provisions of the Act did not intend, even prior to the amendment of 1954, to limit the jurisdiction of the Commissioner only to cases where irregularity or illegality had been committed by the District Magistrate in granting or refusing to grant permission.27. | 1[ds]10. It would thus be seen that the scheme of S. 3 is that if a landlord wants to bring a suit to eject his tenant, he has to apply to the District Magistrate for permission to do so. The District Magistrate may grant or refuse to grant such permission. After the District Magistrate makes an order on the landlords application, the party aggrieved by the order can apply in revision to the Commissioner within 30 days; and the Commissioner, in exercise of his revisional jurisdiction, has to deal with the revision application under S. 3 (3). If he is satisfied that the District Magistrate has acted illegally or with material irregularity, or has wrongly refused to act, he can make an appropriate order; and the order thus made by him is final under sub-s. (4), subject to any order that the State Government may pass under S. 7-F of theis clear that the power conferred on the State Government by S. 7-F to revise the orders passed by the Commissioner under S. 3 (3) is very wide. In the first place, the State Government need not necessarily be moved by any party in that behalf. It may call for the record suo motu and it can exercise its powers in the interest of justice. In other words, whenever it is brought to the notice of the State Government either by a party aggrieved by the order passed by the Commissioner or otherwise, that the order passed by the Commissioner is unfair or unjust, the State Government may in the ends of justice pass an appropriate order revising the order made by the Commissioner. That, in brief, is the scheme of the relevant provisions of the Act relating to the grant of permission to the landlord to sue his tenant in ejectment.12.One of the points which is often treated as relevant in dealing with the question about the exclusion of civil Courts jurisdiction, is whether the special statute which, it is urged, excludes such jurisdiction, has used clear and unambiguous words indicating that intention. Another test which is applied is: does the said statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions? Applying these two tests, it does appear that the words used in S. 3 (4) and S. 16 are clear. Section 16 in terms provides that the order made under this Act to which the said section applies shall not be called in question in any Court. This is an express provision excluding the civil Courts jurisdiction. Section 3 (4) does not expressly exclude the jurisdiction of the civil Courts, but, in the context, the inference that the civil Courts jurisdiction is intended to be excluded, appears to be inescapable. Therefore, we are satisfied that Mr. Goyal is right in contending that the jurisdiction of the civil Courts is excluded in relation to matters covered by the orders included within the provisions of S. 3 (4) and S. 16.This conclusion, however, does not necessarily mean that the plea against the validity of the order passed by the District Magistrate, or the Commissioner, or the State Government, can never be raised in a civil Court. In our opinion, the bar created by the relevant provisions of the Act excluding the jurisdiction of the civil Courts cannot operate in cases where the plea raised before the civil Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is athe special statute prescribes certain mandatory conditions subject to which the order in question can be passed, and the said mandatory provisions are violated, the validity of the said orders can be challenged in a civil proceeding. Similarly, if principles of natural justice are not complied with, the orders passed in violation of the said principles would be wholly inoperative in law and their validity can be impeached in civil proceedings.19.Therefore, while upholding the contention raised by Mr. Goyal that the jurisdiction of the Civil Courts is barred, we wish to make it clear that this contention will not avail Mr. Goyal if the respondents plea, if upheld, would render the permission granted by the Commissioner totally invalid and ais, we think, fallacious to assume that a party can move the Commissioner under S. 3 (3) in cases where the District Magistrate just refuses to make an order on the application made by the landlord for permission to bring a suit against the tenant. If a District Magistrate just does not deal with the application and passes no order on it, the party aggrieved may be justified in applying for an appropriate writ to the High Court or adopt some other suitable remedy in law; but a revision in such a case does not appear to be competent under S. 3 (3). Besides, the illegality or the irregularity to which S. 3 (3) refers need not necessarily be correlated with questions of jurisdiction. Therefore, we are satisfied that the High Court was not justified in introducing a limitation pertaining to questions of jurisdiction in determining the scope of the width of the revisional power conferred on the Commissioner by S. 3 (3). That is why it must be held that the High Court was in error in coming to the conclusion that the permission granted by the Commissioner in exercise of the powers conferred on him by S. 3 (3) is invalid in law. As we have already emphasised, the only plea which can be raised before a Civil Court in relation to orders passed under the relevant provisions of the Act can be a plea which, if sustained, would render the order wholly invalid and as such, a nullity. No other plea can be raised, because all other pleas are barred by Ss. 3 (4) and 16 of the Act.It may also be relevant to point out that the power conferred on the State Government at all material times by S. 7-F, was very wide. As we have already indicated, in exercise of its powers under S. 7-F, the State Government can pass such orders as appear to it to be necessary in the ends of justice. Therefore, there is no doubt that the relevant provisions of the Act did not intend, even prior to the amendment of 1954, to limit the jurisdiction of the Commissioner only to cases where irregularity or illegality had been committed by the District Magistrate in granting or refusing to grant permission. | 1 | 4,835 | 1,205 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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that the jurisdiction conferred on the Commissioner under S. 3 (3) is exactly similar to the jurisdiction conferred on the High Court under S. 115 of the Code of Civil Procedure. It will be recalled that S. 115 of the Code confers revisional jurisdiction on the High Court to make such order as it thinks fit in a given case, if the subordinate Court whose order is brought before the High Court under S. 115"appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in exercise of its jurisdiction illegally or with material irregularity".There is no doubt that the requirements of Cls. (a), (b) and (c) all centre round the question about the jurisdiction of the subordinate Court, and the view which has been accepted by the majority decision under appeal is that the same limitation must be imported in construing the scope of the authority and power conferred on the Commissioner by S. 3 (3).23. Let us examine whether this conclusion is right. In construing the provision of S. 3 (3), one factor which is patent is that it does not refer to any considerations of jurisdiction at all.In fact, it is not easy to conceive of a limitation as to jurisdiction being relevant in S. 3 (3) because the said provision deals with orders passed by District Magistrate, and the District Magistrates normally would have jurisdiction to deal with applications made by landlords. But quite apart from this aspect of the matter, the words used in S. 3 (3) are unambiguous. There are three categories of cases in which the Commissioner can interfere with the order passed by the District Magistrate. If the District Magistrate has acted illegally the Commissioner can interfere with his order, so can he interfere with the order if the District Magistrate has acted with material irregularity; and lastly, the Commissioner can interfere with the order of the District Magistrate if the District Magistrate has wrongly refused to act. This last clause is wide enough to empower the Commissioner to correct the error committed by the District Magistrate in making an order brought before him; quite clearly if the District Magistrate refuses to grant permission and the Commissioner thinks that in doing so, he has committed an error, that would be a case where the District Magistrate "has wrongly refused to act", and that would give the Commissioner jurisdiction to exercise his revisional power.24. It is significant that the revisional application can be made to the Commissioner only against order passed by the District Magistrate granting or refusing to grant such permission. It is, we think, fallacious to assume that a party can move the Commissioner under S. 3 (3) in cases where the District Magistrate just refuses to make an order on the application made by the landlord for permission to bring a suit against the tenant. If a District Magistrate just does not deal with the application and passes no order on it, the party aggrieved may be justified in applying for an appropriate writ to the High Court or adopt some other suitable remedy in law; but a revision in such a case does not appear to be competent under S. 3 (3). Besides, the illegality or the irregularity to which S. 3 (3) refers need not necessarily be correlated with questions of jurisdiction. Therefore, we are satisfied that the High Court was not justified in introducing a limitation pertaining to questions of jurisdiction in determining the scope of the width of the revisional power conferred on the Commissioner by S. 3 (3). That is why it must be held that the High Court was in error in coming to the conclusion that the permission granted by the Commissioner in exercise of the powers conferred on him by S. 3 (3) is invalid in law. As we have already emphasised, the only plea which can be raised before a Civil Court in relation to orders passed under the relevant provisions of the Act can be a plea which, if sustained, would render the order wholly invalid and as such, a nullity. No other plea can be raised, because all other pleas are barred by Ss. 3 (4) and 16 of the Act.25. In this connection, we may incidentally point out that by a subsequent amendment of S. 3 (3), the Legislature has made it clear that its intention is to confer wide jurisdiction on the Commissioner. The amendment in question has been introduced by Act 17 of 1954. The amended provision reads thus:-"The Commissioner shall hear the application made under sub-section (2), as far as may be, within six weeks from the date of making it, and he may, if he is not satisfied as to the correctness, legality or property of the order passed by the District Magistrate or as to the regularity of proceedings held before him, alter or reverse his order, or make such other order as may be just and proper There is no doubt that under this amended provision, the Commissioner can deal not only with the legality, but also with the correctness and property of the order passed by District Magistrate. In our opinion, the position about the Commissioners powers was not different even under the unamended provision."26. It may also be relevant to point out that the power conferred on the State Government at all material times by S. 7-F, was very wide. As we have already indicated, in exercise of its powers under S. 7-F, the State Government can pass such orders as appear to it to be necessary in the ends of justice. Therefore, there is no doubt that the relevant provisions of the Act did not intend, even prior to the amendment of 1954, to limit the jurisdiction of the Commissioner only to cases where irregularity or illegality had been committed by the District Magistrate in granting or refusing to grant permission.27.
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revision application under S. 3 (3). If he is satisfied that the District Magistrate has acted illegally or with material irregularity, or has wrongly refused to act, he can make an appropriate order; and the order thus made by him is final under sub-s. (4), subject to any order that the State Government may pass under S. 7-F of theis clear that the power conferred on the State Government by S. 7-F to revise the orders passed by the Commissioner under S. 3 (3) is very wide. In the first place, the State Government need not necessarily be moved by any party in that behalf. It may call for the record suo motu and it can exercise its powers in the interest of justice. In other words, whenever it is brought to the notice of the State Government either by a party aggrieved by the order passed by the Commissioner or otherwise, that the order passed by the Commissioner is unfair or unjust, the State Government may in the ends of justice pass an appropriate order revising the order made by the Commissioner. That, in brief, is the scheme of the relevant provisions of the Act relating to the grant of permission to the landlord to sue his tenant in ejectment.12.One of the points which is often treated as relevant in dealing with the question about the exclusion of civil Courts jurisdiction, is whether the special statute which, it is urged, excludes such jurisdiction, has used clear and unambiguous words indicating that intention. Another test which is applied is: does the said statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions? Applying these two tests, it does appear that the words used in S. 3 (4) and S. 16 are clear. Section 16 in terms provides that the order made under this Act to which the said section applies shall not be called in question in any Court. This is an express provision excluding the civil Courts jurisdiction. Section 3 (4) does not expressly exclude the jurisdiction of the civil Courts, but, in the context, the inference that the civil Courts jurisdiction is intended to be excluded, appears to be inescapable. Therefore, we are satisfied that Mr. Goyal is right in contending that the jurisdiction of the civil Courts is excluded in relation to matters covered by the orders included within the provisions of S. 3 (4) and S. 16.This conclusion, however, does not necessarily mean that the plea against the validity of the order passed by the District Magistrate, or the Commissioner, or the State Government, can never be raised in a civil Court. In our opinion, the bar created by the relevant provisions of the Act excluding the jurisdiction of the civil Courts cannot operate in cases where the plea raised before the civil Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is athe special statute prescribes certain mandatory conditions subject to which the order in question can be passed, and the said mandatory provisions are violated, the validity of the said orders can be challenged in a civil proceeding. Similarly, if principles of natural justice are not complied with, the orders passed in violation of the said principles would be wholly inoperative in law and their validity can be impeached in civil proceedings.19.Therefore, while upholding the contention raised by Mr. Goyal that the jurisdiction of the Civil Courts is barred, we wish to make it clear that this contention will not avail Mr. Goyal if the respondents plea, if upheld, would render the permission granted by the Commissioner totally invalid and ais, we think, fallacious to assume that a party can move the Commissioner under S. 3 (3) in cases where the District Magistrate just refuses to make an order on the application made by the landlord for permission to bring a suit against the tenant. If a District Magistrate just does not deal with the application and passes no order on it, the party aggrieved may be justified in applying for an appropriate writ to the High Court or adopt some other suitable remedy in law; but a revision in such a case does not appear to be competent under S. 3 (3). Besides, the illegality or the irregularity to which S. 3 (3) refers need not necessarily be correlated with questions of jurisdiction. Therefore, we are satisfied that the High Court was not justified in introducing a limitation pertaining to questions of jurisdiction in determining the scope of the width of the revisional power conferred on the Commissioner by S. 3 (3). That is why it must be held that the High Court was in error in coming to the conclusion that the permission granted by the Commissioner in exercise of the powers conferred on him by S. 3 (3) is invalid in law. As we have already emphasised, the only plea which can be raised before a Civil Court in relation to orders passed under the relevant provisions of the Act can be a plea which, if sustained, would render the order wholly invalid and as such, a nullity. No other plea can be raised, because all other pleas are barred by Ss. 3 (4) and 16 of the Act.It may also be relevant to point out that the power conferred on the State Government at all material times by S. 7-F, was very wide. As we have already indicated, in exercise of its powers under S. 7-F, the State Government can pass such orders as appear to it to be necessary in the ends of justice. Therefore, there is no doubt that the relevant provisions of the Act did not intend, even prior to the amendment of 1954, to limit the jurisdiction of the Commissioner only to cases where irregularity or illegality had been committed by the District Magistrate in granting or refusing to grant permission.
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Rikhi Ram Vs. Smt. Sukhrania | of any intimation, the appellant were liable to pay the amount of compensation which was determined at Rs. 64,000/- and that the insurance company was not liable to pay the amount of compensation. Aggrieved, the appellants filed an appeal before the Division Bench of the High Court of Punjab and Haryana which was dismissed. It is in this way the appellants have filed the petition. 2. The question which arises in this appeal is whether in the absence of an intimation of transfer as required under Section 103-A of the Act, the liability of the insurer to pay compensation to the third party ceases. Earlier, there was a conflicting view of the High Courts as regards the question whether the insurance policy. lapses and consequently the liability of insurer ceases when the insured vehicle was transferred and no intimation as prescribed under Section 103-A of the Act was given to the insurer. 3. This Court in G. Govindan vs. New India Assurance Co. Ltd. & Ors. - 1999 (3) SCC 754 has settled the controversy as regards liability of insurer to pay compensation to third party in the absence of any intimation of transfer of the vehicle to the transferee. It was held therein that since insurance against third party is compulsory, and once the insurance company had undertaken liability to third party incurred by the persons specified in the policy, the third partys right to recover any amount is not affected by virtue of the provisions of the Act or by any condition in the policy. We are of the view that said decision concludes the controversy in the present appeal. However, we would like to give further reasons that the liability of an insurer does not come to an end even if the owner of the vehicle does not not give any intimation of transfer to the insurance company. Chapter VIII of the Act has been enacted following several English statutes. In England, prior to 1930, there was no law of compulsory insurance in respect of third party rights. Whenever an accident took place the victim or the injured used to take legal proceedings against an erring motorist for recovery of damages. But many a times, it was found that the owner of an offending vehicle was not always in a position to pay compensation or damages to the injured or to the dependants of the deceased and in that event the claimants could not get the damages. To meet such a situation, various legislations was enacted in England. For the first time, Third Parties (Rights Against Insurers) Act, 1930 was enacted, the provisions of which find place in Section 97 of the Act which gave to third party right to sue directly against the insurer. Subsequently, the Road Traffic Act. 1930 was enacted which provided for compulsory insurance of motor vehicles. The provisions of the said Act was engrafted in Section 95 of the Act. Under Section 38 of English Act, 1930, certain conditions of insurance policy was made ineffective so far as the third parties were concerned. The object behind the aforesaid legislations was that third party right should not suffer on account of failure to comply with those terms of the insurance policy. Section 94 of the Act gives protection to third party in respect of death or bodily injury or damage to the property while using the vehicle in public place and, therefore, the insurance of vehicle had been made compulsory under Section 94 read with Section 95 of the Act. 4. A perusal of Sections 94 and 95 would further show that the said provisions do not make compulsory insurance to the vehicle or to the owners. Thus, it is manifest that compulsory insurance is for the benefit of third parties. The scheme of the Act shows that n insurance policy can cover three kinds of risks, i.e. owner of the vehicle: property (vehicle) and third party. The liability of the owner to have compulsory insurance is only in regard to the third party and not to the property. Section 95(5) of the Act runs as follows: "Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes or person." 5. The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.6. On an analysis of Sections 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract, cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.7. For the aforesaid reasons, we hold that whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not ceases so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act. | 1[ds]4. A perusal of Sections 94 and 95 would further show that the said provisions do not make compulsory insurance to the vehicle or to the owners. Thus, it is manifest that compulsory insurance is for the benefit of third parties. The scheme of the Act shows that n insurance policy can cover three kinds of risks, i.e. owner of the vehicle: property (vehicle) and third party. The liability of the owner to have compulsory insurance is only in regard to the third party and not to the property. Section 95(5) of the Act runs asanything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes or person.The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.6. On an analysis of Sections 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract, cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.7. For the aforesaid reasons, we hold that whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not ceases so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act. | 1 | 1,418 | 450 | ### 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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of any intimation, the appellant were liable to pay the amount of compensation which was determined at Rs. 64,000/- and that the insurance company was not liable to pay the amount of compensation. Aggrieved, the appellants filed an appeal before the Division Bench of the High Court of Punjab and Haryana which was dismissed. It is in this way the appellants have filed the petition. 2. The question which arises in this appeal is whether in the absence of an intimation of transfer as required under Section 103-A of the Act, the liability of the insurer to pay compensation to the third party ceases. Earlier, there was a conflicting view of the High Courts as regards the question whether the insurance policy. lapses and consequently the liability of insurer ceases when the insured vehicle was transferred and no intimation as prescribed under Section 103-A of the Act was given to the insurer. 3. This Court in G. Govindan vs. New India Assurance Co. Ltd. & Ors. - 1999 (3) SCC 754 has settled the controversy as regards liability of insurer to pay compensation to third party in the absence of any intimation of transfer of the vehicle to the transferee. It was held therein that since insurance against third party is compulsory, and once the insurance company had undertaken liability to third party incurred by the persons specified in the policy, the third partys right to recover any amount is not affected by virtue of the provisions of the Act or by any condition in the policy. We are of the view that said decision concludes the controversy in the present appeal. However, we would like to give further reasons that the liability of an insurer does not come to an end even if the owner of the vehicle does not not give any intimation of transfer to the insurance company. Chapter VIII of the Act has been enacted following several English statutes. In England, prior to 1930, there was no law of compulsory insurance in respect of third party rights. Whenever an accident took place the victim or the injured used to take legal proceedings against an erring motorist for recovery of damages. But many a times, it was found that the owner of an offending vehicle was not always in a position to pay compensation or damages to the injured or to the dependants of the deceased and in that event the claimants could not get the damages. To meet such a situation, various legislations was enacted in England. For the first time, Third Parties (Rights Against Insurers) Act, 1930 was enacted, the provisions of which find place in Section 97 of the Act which gave to third party right to sue directly against the insurer. Subsequently, the Road Traffic Act. 1930 was enacted which provided for compulsory insurance of motor vehicles. The provisions of the said Act was engrafted in Section 95 of the Act. Under Section 38 of English Act, 1930, certain conditions of insurance policy was made ineffective so far as the third parties were concerned. The object behind the aforesaid legislations was that third party right should not suffer on account of failure to comply with those terms of the insurance policy. Section 94 of the Act gives protection to third party in respect of death or bodily injury or damage to the property while using the vehicle in public place and, therefore, the insurance of vehicle had been made compulsory under Section 94 read with Section 95 of the Act. 4. A perusal of Sections 94 and 95 would further show that the said provisions do not make compulsory insurance to the vehicle or to the owners. Thus, it is manifest that compulsory insurance is for the benefit of third parties. The scheme of the Act shows that n insurance policy can cover three kinds of risks, i.e. owner of the vehicle: property (vehicle) and third party. The liability of the owner to have compulsory insurance is only in regard to the third party and not to the property. Section 95(5) of the Act runs as follows: "Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes or person." 5. The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.6. On an analysis of Sections 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract, cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.7. For the aforesaid reasons, we hold that whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not ceases so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act.
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4. A perusal of Sections 94 and 95 would further show that the said provisions do not make compulsory insurance to the vehicle or to the owners. Thus, it is manifest that compulsory insurance is for the benefit of third parties. The scheme of the Act shows that n insurance policy can cover three kinds of risks, i.e. owner of the vehicle: property (vehicle) and third party. The liability of the owner to have compulsory insurance is only in regard to the third party and not to the property. Section 95(5) of the Act runs asanything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes or person.The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.6. On an analysis of Sections 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract, cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.7. For the aforesaid reasons, we hold that whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not ceases so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act.
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Union Of India Vs. United India Insurance Co. Ltd. & Ors | case to the following effect :- ".......no sound reason was given for restricting the phrase, "the use of a motor vehicle" in this way. The only limitation upon its.......that I can see is that the injury must be one in any way a consequence of a use of the vehicle as a motor vehicle". Further, Section 110-E of the Act provides for recovery of the compensation "from any person" as arrears of land revenue and recovery under that Section is not restricted to the owner/driver or insurer specified in the second part of Section 110-B. Obviously the words `from any person are referable to persons other than the driver/owner or insurer of the motor vehicle.43. For all the above reasons, we hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tort-feasors, and if arising out of use of the motor vehicle. We hold that the Tribunal and the High Court were right in holding that an award could be passed against the railways if its negligence in relation to the same accident was also proved. We find that there has been a conflict of judicial opinion among the High Courts on the above aspect. The Andhra Pradesh High Court in Oriental Fire & General Insurance Co. Ltd. v. Union of India, 1975 ACJ 33 (AP) : AIR 1975 AP 222 took the view that the claims before the Tribunal are restricted to those against the driver, owner and insurer of the motor vehicles and not against the railways. But on facts the decision is correct inasmuch as though it was an accident between a lorry and a train at a railway crossing, it was a case where the driver, cleaner etc. travelling in the lorry were injured and there was no claim against the lorry owner. The suit was filed in 1967 in the Civil Court and was decreed against the railway. A plea raised in the High Court that the Civil Court had no jurisdiction and only the Tribunal had jurisdiction was negatived. In our view, on facts the decision is correct because the plea was one of the exclusive negligence of the railway. In Union of India v. Bhimeswara Raddy, 1988 ACJ 660 (AP), though the driver and owner were parties, the ultimate finding was that the driver of the motor vehicle was not negligent and the sole negligence was that of the railway. The case then at that stage comes out of Section 110(1). Here also the conclusion on facts, in our view, is correct. But certain general broad observations made in these two cases that in no circumstances a claim can be tried by the Tribunal against the persons/agencies not referred to in the second part of Section 110-B, are not correct. Similarly the Gauhati High Court in Swarnalata Dutta v. National Transport India (Pvt.) Ltd., AIR 1974 Gau. 31, by the Orissa High Court in Orissa RTC Ltd. v. Umakanta Singh, (AIR 1987 Orissa 110) and the Madras High Court in Union of India v. Kailasam, 1974 ACJ 488 (Mad.) have held that no award can be passed against others except the owner/driver or insurer of the motor vehicle. On the other hand the Allahabad HIgh Court in Union of India v. Bhagwati Prasad, AIR 1982 (AII) 310, the majority in the Full Bench of the Punjab & Haryana High Court in Rajpal Singh v. Union of India, 1986 ACJ 344 (P&H), the Gujarat High Court in Gujarat SRTC v. Union of India, (AIR 1988 Guj. 13 ), the Kerala High Court in the judgment under appeal and in United India Insurance Co. v. Premakumaran, 1988 ACJ 597 (Ker.) and the Rajasthan High Court in Union of India v. Dr. Sewak Ram, 1993 ACJ 366 (Raj.) have taken the view that a claim lies before the Tribunal even against another joint tort-feasor connected with the same accident or against whom composite negligence is alleged.44. We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati, Orissa and Madras High Courts is not correct and that the view taken by the Allahabad, Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view. Further, as pointed by the Gujarat High Court, claims where it is alleged that the driver/owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of exclusive negligence of railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal. 45. We may however add that if, as of today, any claims against persons other than the driver/owner/insurer are pending in Civil Courts, but which as per the law hereinabove stated ought to have been lodged before the Tribunal, then the Civil Courts concerned shall return the plaints and the claimants could present the same as a petition before the Tribunals. In that even, they shall be dealt with as if they are claim petitions presented before the Tribunals on the date on which the plaints were filed in the Civil Courts and shall be disposed of under the provisions of the Motor Vehicles Act and in accordance with law. 46. | 0[ds]The Rule therefore postulates the existence of a sign board as mentioned therein, requiring the conductor to get down. Now admittedly the writing on the sign board at the level crossing was moth-eaten and no writing was visible. Hence in our view no special obligations created by the rule, which were in addition to the common law requirements, can be said to apply. There was no notice as contemplated by the rule which laid down an extra obligation on the conductor to get down from the vehicle as stated in clause (f) of Rule 100.8. In our opinion, in the absence of a board statutorily requiring the vehicle to "stop" and the conductor to "get down", there was only an ordinary common law duty as applicable to prudent persons. This was a duty to "stop" "see and hear" and find out if any train wasas in this case, the driver did not stop the vehicle at the unmanned crossing, it must in our view be held that he was guilty of negligence even though there was no curve or obstruction at the point. The Tribunal and the High Court were, in our opinion, justified in finding negligence on the part of the driver. Of course, the High Court felt that the driver who must be deemed to be conscious that his own life was at stake could not be accused of criminal negligence in wanting to kill the passengers even if he was angry with their complaint of delay. The High Court thought that the case might be one where the driver took a risk which ought not to have been taken and the engine of the bus for some unknown reasons, might have failed, while it was on the track. In any event, the finding of negligence of the bus driver does not call for interference.There is a well-known principle in the law of torts, called the doctrine of identification or imputation. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course ofother words, the principle of contributory negligence is confined to the actual negligence of the plaintiff or of his agents. There is no rule that the driver of an omnibus or a coach or a cab or the engine driver of a train or the captain of a ship on the one hand and the passengers on the other hand are to be identified so as to fasten the latter with any liability for the formers contributory negligence. There cannot be a fiction of the passenger sharing a right of control of the operation of the vehicle nor is there a fiction that the driver is an agent of the passenger. A passenger is not treated as a backseat driver. (Prosser and Keeton on Torts, 5th Ed., 1984 P. 521-522). It is therefore clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved - could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent, - the driver and owner of the bus and, if proved, the railways - can all be jointview of the above provision, which does not cast a direct obligation on the railway administration, several High Courts have taken the view, and in our opinion, rightly that the statutory duties of the Railway Administration under Section 13 do not arise unless a requisition is made by the Central Government. The above anomaly has naturally compelled the Courts to fall back upon the common law duties resting on the Railways. It has been contended for the claimants that under the common law, the Railways, as an occupier of the level crossing for the purpose of running railway trains which are inherently dangerous to those who use the public road at that point, has special responsibilities as a responsible body to see that accidents are kept at the minimum.The law in this behalf is again well settled that the claimants can at their choice sue the railways to enforce either or both types of these duties. i.e. under common law as well as underthe same decision of the Privy Council in Commissioner for Railways v. McDermott (supra), it has been stated that the Railways duty of care at common law is based on the principle of neighbourhood laid down by Lord Atkin in Donoghuev. Stevenson, 1932 AC562 inasmuch as the Railwaycarrying an inherently dangerous activity of running express trains through a level crossing which was lawfully and necessarily used by local inhabitants and their guests and persons visiting them on business. Such an activity was likely to cause accidents, unless it was carried with all reasonable care.... In principle, the liabilities is not based, however on matters of title but on the perilous nature of the operation and the de facto relationship which after Donoghue v. Stevenson (supra), would be called proximity or "neighbourly relation between the railway operator and a substantial number of persons lawfully using the levelduty to care at common law is therefore based upon the dangerous or perilous nature of the operations of the railways.In the case before us the Railways have led no independent evidence of any application of mind to these issues. Obviously, the railways presumed that the negligence of the driver of the bus could be imputed to the passengers but this, as stated by us under Point 2 is legallythe aforesaid reasons, no case is made put by the appellant for disturbing the finding of the High Court that applying common law principles, the Railway must also be deemed to be negligent is not converting the unmanned level crossing into a manned one with gates, - having regard to the volume of rail and road traffic at this point.We are of the view that the principle laid down by Mason, J. is clearly applicable here. This general expectation of the community so far as the railways are concerned can be summarised from the following passage in Halsburys Laws of England (Vol. 34, Negligence, 4th Ed. 1984, para 73). It is stated that "a plaintiff is entitled to rely on reasonable care and proper precautions being taken and, in places to which the public has access, he is entitled to assume the existence of such protection as the public has, through custom, become justified in expecting". Hasbury then refers to a large number of cases of railway accidents. In view of this general expectation of the community that appropriate safeguards will be taken by the railways at level crossings, the first precondition is, in our view, clearly satisfied.We make it however clear that Stovin v. Wise is not to be readily invoked in every case of non-exercise of statutory powers unless the two pre- conditions laid down in the judgment of the majority in Stovin v. Wise are satisfied. [For discussion on Stovin v. Wise and recent views in Newzealand, Canada & Australia - See Jackson & Powell on Professional Negligence (4th Edn., 1997 pp. 26 to 41), Aronson and Whitemore, Public Torts and Contracts Australia, (1982), Craig (1978) 94 L.Q.R 428; Bowman & Bailey: 1984 P.L. 27.] We should not also be understood as saying that all unmanned level crossings should have gates with watchmen. It all depends on the volume of traffic at the point and the applicability of the principles stated above in Points 3 &our view, the second part of Section 110-B extracted above is purely procedural when it refers to the specification of the amounts payable by the insurer or owner or driver and has no bearing on the scope of the jurisdiction conferred by Section 110(1) upon the Tribunals. That question was to be decided by interpreting the plain words, "arising out of the use of the vehicle" occurring in Section 110(1) and is not in any manner controlled by Section 110(B). The scope of the jurisdiction is clear. In NewIndia Insurance Co. Ltd. v. Shanti Mishra, 1975(2) SCC840, this court stated that the provisions in Chapter VIII of the 1939 Act contained a law "relating to change of forum". It was specifically held that the "jurisdiction of the Civil Court is ousted as soon as the Claims Tribunal is constituted and the filing of the application before the Tribunal is the only remedy available for the claimant". It was again held in Gujarat State RTC v. Ramanbhai Prabhatbhai, 1967(3) SCC 234 that Chapter VIII provided for an "alternative forum" to the one provided under the Fatal Accidents Act for realisation of compensation payable on account of motor vehicle accidents.42. In our view, the Tribunal is clearly an alternative forum in substitution for the Civil Court for adjudicating upon claims for compensation arising out of the "use of motor vehicles". This is further made clear from Section 110-F of the Act which states that no Civil Court shall entertain any question "relating to any claims for compensation which may be adjudicated upon by the Claims Tribunal". In our view, when we are concerned only with Section 110(1) and when Section 110-B does not and cannot control Section 110(1), a claim is entertainable by the Tribunal, if it arises out of the use of a motor vehicle and if it is claimed against persons or agencies other than the driver, owner or insurer of the vehicle provided in tort, such other persons or agencies are also claimed to be liable as joint tort-feasors. It is obvious that prior to the constitution of the Tribunal, such compensation could be decreed by the Civil Court not only against the owner/driver and insurer of the motor vehicle but also against others who are found to be joint tort feasors. The words "use of the motor vehicle" are also to be construed in a wideSection 110-E of the Act provides for recovery of the compensation "from any person" as arrears of land revenue and recovery under that Section is not restricted to the owner/driver or insurer specified in the second part of Section 110-B. Obviously the words `from any person are referable to persons other than the driver/owner or insurer of the motor vehicle.43. For all the above reasons, we hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tort-feasors, and if arising out of use of the motor vehicle. We hold that the Tribunal and the High Court were right in holding that an award could be passed against the railways if its negligence in relation to the same accident was also proved. We find that there has been a conflict of judicial opinion among the High Courts on the above aspect. The Andhra Pradesh High Court in Oriental Fire & General Insurance Co. Ltd. v. Union of India, 1975 ACJ 33 (AP) : AIR 1975 AP 222 took the view that the claims before the Tribunal are restricted to those against the driver, owner and insurer of the motor vehicles and not against the railways. But on facts the decision is correct inasmuch as though it was an accident between a lorry and a train at a railway crossing, it was a case where the driver, cleaner etc. travelling in the lorry were injured and there was no claim against the lorry owner. The suit was filed in 1967 in the Civil Court and was decreed against the railway. A plea raised in the High Court that the Civil Court had no jurisdiction and only the Tribunal had jurisdiction was negatived. In our view, on facts the decision is correct because the plea was one of the exclusive negligence of the railway. In Union of India v. Bhimeswara Raddy, 1988 ACJ 660 (AP), though the driver and owner were parties, the ultimate finding was that the driver of the motor vehicle was not negligent and the sole negligence was that of the railway. The case then at that stage comes out of Section 110(1). Here also the conclusion on facts, in our view, is correct. But certain general broad observations made in these two cases that in no circumstances a claim can be tried by the Tribunal against the persons/agencies not referred to in the second part of Section 110-B, are not correct. Similarly the Gauhati High Court in Swarnalata Dutta v. National Transport India (Pvt.) Ltd., AIR 1974 Gau. 31, by the Orissa High Court in Orissa RTC Ltd. v. Umakanta Singh, (AIR 1987 Orissa 110) and the Madras High Court in Union of India v. Kailasam, 1974 ACJ 488 (Mad.) have held that no award can be passed against others except the owner/driver or insurer of the motor vehicle. On the other hand the Allahabad HIgh Court in Union of India v. Bhagwati Prasad, AIR 1982 (AII) 310, the majority in the Full Bench of the Punjab & Haryana High Court in Rajpal Singh v. Union of India, 1986 ACJ 344 (P&H), the Gujarat High Court in Gujarat SRTC v. Union of India, (AIR 1988 Guj. 13 ), the Kerala High Court in the judgment under appeal and in United India Insurance Co. v. Premakumaran, 1988 ACJ 597 (Ker.) and the Rajasthan High Court in Union of India v. Dr. Sewak Ram, 1993 ACJ 366 (Raj.) have taken the view that a claim lies before the Tribunal even against another joint tort-feasor connected with the same accident or against whom composite negligence is alleged.44. We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati, Orissa and Madras High Courts is not correct and that the view taken by the Allahabad, Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view. Further, as pointed by the Gujarat High Court, claims where it is alleged that the driver/owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of exclusive negligence of railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal. | 0 | 11,902 | 2,769 | ### 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:
case to the following effect :- ".......no sound reason was given for restricting the phrase, "the use of a motor vehicle" in this way. The only limitation upon its.......that I can see is that the injury must be one in any way a consequence of a use of the vehicle as a motor vehicle". Further, Section 110-E of the Act provides for recovery of the compensation "from any person" as arrears of land revenue and recovery under that Section is not restricted to the owner/driver or insurer specified in the second part of Section 110-B. Obviously the words `from any person are referable to persons other than the driver/owner or insurer of the motor vehicle.43. For all the above reasons, we hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tort-feasors, and if arising out of use of the motor vehicle. We hold that the Tribunal and the High Court were right in holding that an award could be passed against the railways if its negligence in relation to the same accident was also proved. We find that there has been a conflict of judicial opinion among the High Courts on the above aspect. The Andhra Pradesh High Court in Oriental Fire & General Insurance Co. Ltd. v. Union of India, 1975 ACJ 33 (AP) : AIR 1975 AP 222 took the view that the claims before the Tribunal are restricted to those against the driver, owner and insurer of the motor vehicles and not against the railways. But on facts the decision is correct inasmuch as though it was an accident between a lorry and a train at a railway crossing, it was a case where the driver, cleaner etc. travelling in the lorry were injured and there was no claim against the lorry owner. The suit was filed in 1967 in the Civil Court and was decreed against the railway. A plea raised in the High Court that the Civil Court had no jurisdiction and only the Tribunal had jurisdiction was negatived. In our view, on facts the decision is correct because the plea was one of the exclusive negligence of the railway. In Union of India v. Bhimeswara Raddy, 1988 ACJ 660 (AP), though the driver and owner were parties, the ultimate finding was that the driver of the motor vehicle was not negligent and the sole negligence was that of the railway. The case then at that stage comes out of Section 110(1). Here also the conclusion on facts, in our view, is correct. But certain general broad observations made in these two cases that in no circumstances a claim can be tried by the Tribunal against the persons/agencies not referred to in the second part of Section 110-B, are not correct. Similarly the Gauhati High Court in Swarnalata Dutta v. National Transport India (Pvt.) Ltd., AIR 1974 Gau. 31, by the Orissa High Court in Orissa RTC Ltd. v. Umakanta Singh, (AIR 1987 Orissa 110) and the Madras High Court in Union of India v. Kailasam, 1974 ACJ 488 (Mad.) have held that no award can be passed against others except the owner/driver or insurer of the motor vehicle. On the other hand the Allahabad HIgh Court in Union of India v. Bhagwati Prasad, AIR 1982 (AII) 310, the majority in the Full Bench of the Punjab & Haryana High Court in Rajpal Singh v. Union of India, 1986 ACJ 344 (P&H), the Gujarat High Court in Gujarat SRTC v. Union of India, (AIR 1988 Guj. 13 ), the Kerala High Court in the judgment under appeal and in United India Insurance Co. v. Premakumaran, 1988 ACJ 597 (Ker.) and the Rajasthan High Court in Union of India v. Dr. Sewak Ram, 1993 ACJ 366 (Raj.) have taken the view that a claim lies before the Tribunal even against another joint tort-feasor connected with the same accident or against whom composite negligence is alleged.44. We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati, Orissa and Madras High Courts is not correct and that the view taken by the Allahabad, Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view. Further, as pointed by the Gujarat High Court, claims where it is alleged that the driver/owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of exclusive negligence of railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal. 45. We may however add that if, as of today, any claims against persons other than the driver/owner/insurer are pending in Civil Courts, but which as per the law hereinabove stated ought to have been lodged before the Tribunal, then the Civil Courts concerned shall return the plaints and the claimants could present the same as a petition before the Tribunals. In that even, they shall be dealt with as if they are claim petitions presented before the Tribunals on the date on which the plaints were filed in the Civil Courts and shall be disposed of under the provisions of the Motor Vehicles Act and in accordance with law. 46.
### Response:
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### Explanation:
made clear from Section 110-F of the Act which states that no Civil Court shall entertain any question "relating to any claims for compensation which may be adjudicated upon by the Claims Tribunal". In our view, when we are concerned only with Section 110(1) and when Section 110-B does not and cannot control Section 110(1), a claim is entertainable by the Tribunal, if it arises out of the use of a motor vehicle and if it is claimed against persons or agencies other than the driver, owner or insurer of the vehicle provided in tort, such other persons or agencies are also claimed to be liable as joint tort-feasors. It is obvious that prior to the constitution of the Tribunal, such compensation could be decreed by the Civil Court not only against the owner/driver and insurer of the motor vehicle but also against others who are found to be joint tort feasors. The words "use of the motor vehicle" are also to be construed in a wideSection 110-E of the Act provides for recovery of the compensation "from any person" as arrears of land revenue and recovery under that Section is not restricted to the owner/driver or insurer specified in the second part of Section 110-B. Obviously the words `from any person are referable to persons other than the driver/owner or insurer of the motor vehicle.43. For all the above reasons, we hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tort-feasors, and if arising out of use of the motor vehicle. We hold that the Tribunal and the High Court were right in holding that an award could be passed against the railways if its negligence in relation to the same accident was also proved. We find that there has been a conflict of judicial opinion among the High Courts on the above aspect. The Andhra Pradesh High Court in Oriental Fire & General Insurance Co. Ltd. v. Union of India, 1975 ACJ 33 (AP) : AIR 1975 AP 222 took the view that the claims before the Tribunal are restricted to those against the driver, owner and insurer of the motor vehicles and not against the railways. But on facts the decision is correct inasmuch as though it was an accident between a lorry and a train at a railway crossing, it was a case where the driver, cleaner etc. travelling in the lorry were injured and there was no claim against the lorry owner. The suit was filed in 1967 in the Civil Court and was decreed against the railway. A plea raised in the High Court that the Civil Court had no jurisdiction and only the Tribunal had jurisdiction was negatived. In our view, on facts the decision is correct because the plea was one of the exclusive negligence of the railway. In Union of India v. Bhimeswara Raddy, 1988 ACJ 660 (AP), though the driver and owner were parties, the ultimate finding was that the driver of the motor vehicle was not negligent and the sole negligence was that of the railway. The case then at that stage comes out of Section 110(1). Here also the conclusion on facts, in our view, is correct. But certain general broad observations made in these two cases that in no circumstances a claim can be tried by the Tribunal against the persons/agencies not referred to in the second part of Section 110-B, are not correct. Similarly the Gauhati High Court in Swarnalata Dutta v. National Transport India (Pvt.) Ltd., AIR 1974 Gau. 31, by the Orissa High Court in Orissa RTC Ltd. v. Umakanta Singh, (AIR 1987 Orissa 110) and the Madras High Court in Union of India v. Kailasam, 1974 ACJ 488 (Mad.) have held that no award can be passed against others except the owner/driver or insurer of the motor vehicle. On the other hand the Allahabad HIgh Court in Union of India v. Bhagwati Prasad, AIR 1982 (AII) 310, the majority in the Full Bench of the Punjab & Haryana High Court in Rajpal Singh v. Union of India, 1986 ACJ 344 (P&H), the Gujarat High Court in Gujarat SRTC v. Union of India, (AIR 1988 Guj. 13 ), the Kerala High Court in the judgment under appeal and in United India Insurance Co. v. Premakumaran, 1988 ACJ 597 (Ker.) and the Rajasthan High Court in Union of India v. Dr. Sewak Ram, 1993 ACJ 366 (Raj.) have taken the view that a claim lies before the Tribunal even against another joint tort-feasor connected with the same accident or against whom composite negligence is alleged.44. We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati, Orissa and Madras High Courts is not correct and that the view taken by the Allahabad, Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view. Further, as pointed by the Gujarat High Court, claims where it is alleged that the driver/owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of exclusive negligence of railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal.
|
Deepak Bhandari Vs. Himachal Pradesh State Industrial Development Corporation Limited | of the mortgage deed which was executed between the parties and in the present case such a clause is conspicuously absent. Had the judgment of this Court rested solely on clause 7 of the mortgage deed, the aforesaid argument of Mr. Dhruv Mehta would have been of some credence. However, we find that the Court also specifically discussed the issue as to when right to sue on the indemnity would arise and specific answer given to this question was that it would be only after the assets were sold of. The judgment was also rested on another pertinent aspect viz. since the mortgage deed was executed, the period of limitation would be 12 years if a mortgage suit was to be filed. Following discussion in the said judgment on this aspect squarely answers the contention of the learned Senior Counsel for the appellant: “Whilst considering the question of limitation the Division Bench has given a very lengthy judgment running into approximately 50 pages. However they appear to have not noticed the fact that under Clause 7 an indemnity had been given. Therefore, the premise on which the judgment proceeds i.e. that the loan transaction and the mortgage deed, are one composite transaction which was inseparable is entirely erroneous. It is settled law that a contract of indemnity and/ or guarantee is an independent and separate contract from the main contract. Thus the question which they required to address themselves, which unfortunately they did not, was when does the right to sue on the indemnity arose. In our view, there can be only one answer to this question. The right to sue on the contract of indemnity arose only after the assets were sold off. It is only at that stage that the balance due became ascertained. It is at that stage only that a suit for recovery of the balance could have been filed. Merely because the Corporation acted under Section 29 of the Financial Corporation Act did not mean that the contract of indemnity came to an end. Section 29 merely enabled the Corporation to take possession and sell the assets for recovery of the dues under the main contract. It may be that on the Corporation taking action under Section 29 and on their taking possession they became deemed owners. The mortgage may have come to an end, but the contract of indemnity, which was an independent contract, did not. The right to claim for the balance arose, under the contract of indemnity, only when the sale proceeds were found to be insufficient. In this case, it is an admitted position that the sale took place on 28.1.1984 and 14.3.1985. it is only after this date that the question of right to sue on the indemnity (contained in Clause 7) arose. The suit having been filed on 15.9.1985 was well within limitation. Therefore, it was erroneous to hold that the suit was barred by the law of limitation.Even otherwise, it must be mentioned that the Division Bench was in error in stating that the right to personally recover the balance terminates after the expiry of three years. It must be remembered that the question of recovery of balance will only arise after the remedy in respect of the mortgage deed has first been exhaustive. If a mortgage suit was to be filed, the period of limitation would be 12 years. Of course, in such a suit, a prayer can also be made for a personal decree on the sale proceeds being insufficient. Even though such prayer may be made, the suit remains a mortgage suit. Therefore, the period of limitation in such cases will remain 12 years”. [Emphasis Supplied] 21. We thus, hold that when the Corporation takes steps for recovery of the amount by resorting to the provisions of Section 29 of the Act, the limitation period for recovery of the balance amount would start only after adjusting the proceeds from the sale of assets of the industrial concern. As the Corporation would be in a position to know as to whether there is a shortfall or there is excess amount realised, only after the sale of the mortgage/ hypothecated assets. This is clear from the language of sub-Section (1) of Section 29 which makes the position abundantly clear and is quoted below: “Where nay industrial concern, which is under a liability to the Financial Corporation under an agreement, makes any default in repayment of any loan or advance or any installment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over the management or possession or both of the industrial concern, as well as the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation.” 22. It is thus clear that merely because the Corporation acted under Section 29 of the State Financial Corporation Act did not mean that the contract of indemnity came to an end. Section 29 merely enabled the Corporation to take possession and sell the assets for recovery of the dues under the main contract. It may be that only the Corporation taking action under Section 29 and on their taking possession they became deemed owners. The mortgage may have come to an end, but the contract of indemnity, which was an independent contract, did not. The right to claim for the balance arose, under the contract of indemnity, only when the sale proceeds were found to be insufficient. The right to sue on the contract of indemnity arose after the assets were sold. The present case would fall under Article 55 of the Limitation Act, 1963 which corresponds to old Articles 115 and 116 of the old Limitation Act, 1908. The right to sue on a contract of indemnity/ guarantee would arise when the contract is broken. 23. Therefore, | 0[ds]. The Court answered by holding that for such proceedings Article 137 of the Limitation Act would apply meaning thereby, period of limitation is 3 years. From the reading of this judgment, it becomes abundantly clear that the issue to which would be the starting date for counting the period of limitation, was neither raised or dealtwith the approach of the High Court in as much as clause 7 specifically provided that the Corporation could filed recovery proceedings against the partners of the Industrial concern if the sale proceeds of the assets of the industrial concern were insufficient to satisfy the dues of the Corporation.We thus, hold that when the Corporation takes steps for recovery of the amount by resorting to the provisions of Section 29 of the Act, the limitation period for recovery of the balance amount would start only after adjusting the proceeds from the sale of assets of the industrial concern. As the Corporation would be in a position to know as to whether there is a shortfall or there is excess amount realised, only after the sale of the mortgage/ hypothecated assets.It is thus clear that merely because the Corporation acted under Section 29 of the State Financial Corporation Act did not mean that the contract of indemnity came to an end. Section 29 merely enabled the Corporation to take possession and sell the assets for recovery of the dues under the main contract. It may be that only the Corporation taking action under Section 29 and on their taking possession they became deemed owners. The mortgage may have come to an end, but the contract of indemnity, which was an independent contract, did not. The right to claim for the balance arose, under the contract of indemnity, only when the sale proceeds were found to be insufficient. The right to sue on the contract of indemnity arose after the assets were sold. The present case would fall under Article 55 of the Limitation Act, 1963 which corresponds to old Articles 115 and 116 of the old Limitation Act, 1908. The right to sue on a contract of indemnity/ guarantee would arise when the contract is | 0 | 4,601 | 386 | ### 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:
of the mortgage deed which was executed between the parties and in the present case such a clause is conspicuously absent. Had the judgment of this Court rested solely on clause 7 of the mortgage deed, the aforesaid argument of Mr. Dhruv Mehta would have been of some credence. However, we find that the Court also specifically discussed the issue as to when right to sue on the indemnity would arise and specific answer given to this question was that it would be only after the assets were sold of. The judgment was also rested on another pertinent aspect viz. since the mortgage deed was executed, the period of limitation would be 12 years if a mortgage suit was to be filed. Following discussion in the said judgment on this aspect squarely answers the contention of the learned Senior Counsel for the appellant: “Whilst considering the question of limitation the Division Bench has given a very lengthy judgment running into approximately 50 pages. However they appear to have not noticed the fact that under Clause 7 an indemnity had been given. Therefore, the premise on which the judgment proceeds i.e. that the loan transaction and the mortgage deed, are one composite transaction which was inseparable is entirely erroneous. It is settled law that a contract of indemnity and/ or guarantee is an independent and separate contract from the main contract. Thus the question which they required to address themselves, which unfortunately they did not, was when does the right to sue on the indemnity arose. In our view, there can be only one answer to this question. The right to sue on the contract of indemnity arose only after the assets were sold off. It is only at that stage that the balance due became ascertained. It is at that stage only that a suit for recovery of the balance could have been filed. Merely because the Corporation acted under Section 29 of the Financial Corporation Act did not mean that the contract of indemnity came to an end. Section 29 merely enabled the Corporation to take possession and sell the assets for recovery of the dues under the main contract. It may be that on the Corporation taking action under Section 29 and on their taking possession they became deemed owners. The mortgage may have come to an end, but the contract of indemnity, which was an independent contract, did not. The right to claim for the balance arose, under the contract of indemnity, only when the sale proceeds were found to be insufficient. In this case, it is an admitted position that the sale took place on 28.1.1984 and 14.3.1985. it is only after this date that the question of right to sue on the indemnity (contained in Clause 7) arose. The suit having been filed on 15.9.1985 was well within limitation. Therefore, it was erroneous to hold that the suit was barred by the law of limitation.Even otherwise, it must be mentioned that the Division Bench was in error in stating that the right to personally recover the balance terminates after the expiry of three years. It must be remembered that the question of recovery of balance will only arise after the remedy in respect of the mortgage deed has first been exhaustive. If a mortgage suit was to be filed, the period of limitation would be 12 years. Of course, in such a suit, a prayer can also be made for a personal decree on the sale proceeds being insufficient. Even though such prayer may be made, the suit remains a mortgage suit. Therefore, the period of limitation in such cases will remain 12 years”. [Emphasis Supplied] 21. We thus, hold that when the Corporation takes steps for recovery of the amount by resorting to the provisions of Section 29 of the Act, the limitation period for recovery of the balance amount would start only after adjusting the proceeds from the sale of assets of the industrial concern. As the Corporation would be in a position to know as to whether there is a shortfall or there is excess amount realised, only after the sale of the mortgage/ hypothecated assets. This is clear from the language of sub-Section (1) of Section 29 which makes the position abundantly clear and is quoted below: “Where nay industrial concern, which is under a liability to the Financial Corporation under an agreement, makes any default in repayment of any loan or advance or any installment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over the management or possession or both of the industrial concern, as well as the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation.” 22. It is thus clear that merely because the Corporation acted under Section 29 of the State Financial Corporation Act did not mean that the contract of indemnity came to an end. Section 29 merely enabled the Corporation to take possession and sell the assets for recovery of the dues under the main contract. It may be that only the Corporation taking action under Section 29 and on their taking possession they became deemed owners. The mortgage may have come to an end, but the contract of indemnity, which was an independent contract, did not. The right to claim for the balance arose, under the contract of indemnity, only when the sale proceeds were found to be insufficient. The right to sue on the contract of indemnity arose after the assets were sold. The present case would fall under Article 55 of the Limitation Act, 1963 which corresponds to old Articles 115 and 116 of the old Limitation Act, 1908. The right to sue on a contract of indemnity/ guarantee would arise when the contract is broken. 23. Therefore,
### Response:
0
### Explanation:
. The Court answered by holding that for such proceedings Article 137 of the Limitation Act would apply meaning thereby, period of limitation is 3 years. From the reading of this judgment, it becomes abundantly clear that the issue to which would be the starting date for counting the period of limitation, was neither raised or dealtwith the approach of the High Court in as much as clause 7 specifically provided that the Corporation could filed recovery proceedings against the partners of the Industrial concern if the sale proceeds of the assets of the industrial concern were insufficient to satisfy the dues of the Corporation.We thus, hold that when the Corporation takes steps for recovery of the amount by resorting to the provisions of Section 29 of the Act, the limitation period for recovery of the balance amount would start only after adjusting the proceeds from the sale of assets of the industrial concern. As the Corporation would be in a position to know as to whether there is a shortfall or there is excess amount realised, only after the sale of the mortgage/ hypothecated assets.It is thus clear that merely because the Corporation acted under Section 29 of the State Financial Corporation Act did not mean that the contract of indemnity came to an end. Section 29 merely enabled the Corporation to take possession and sell the assets for recovery of the dues under the main contract. It may be that only the Corporation taking action under Section 29 and on their taking possession they became deemed owners. The mortgage may have come to an end, but the contract of indemnity, which was an independent contract, did not. The right to claim for the balance arose, under the contract of indemnity, only when the sale proceeds were found to be insufficient. The right to sue on the contract of indemnity arose after the assets were sold. The present case would fall under Article 55 of the Limitation Act, 1963 which corresponds to old Articles 115 and 116 of the old Limitation Act, 1908. The right to sue on a contract of indemnity/ guarantee would arise when the contract is
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A. Chowgule & Co. Ltd Vs. Goa Foundation & Others | Nagbhushan Rao. We however discern no difference with regard to the basic factum as to the nature of the land in question and the only difference, if at all, is with regard to the number of trees per hectare said to be growing on the land. We, thus, have no hesitation in confirming this finding of fact. In T.N.Godavarman Thirumulkpad case (supra), this Court expressed its dissatisfaction with some of the State Governments in the implementation of the provisions of the Act and observed thus: The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word forest must be understood according to its dictionary meaning. This description covers all statutorily recognized forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term forest land, occurring in Section 2 will not only include forest as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works vs. State of Gujarat, Rural Litigation and Entitlement Kendra vs. State of U.P. and recently in the order dated 29.11.1996 (Supreme Court Monitoring Committee vs. Mussoorie Dehradun Development Authority). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. 8. We are, therefore, of the opinion that in the light of the aforesaid emphatic and clear cut observations, and findings of fact, there can be no doubt that the land leased out to the appellant was indeed a forest. 9. Some arguments have flown during the course of the hearing that the appellants were willing to reforest an identical area in case the lease was allowed to be effectuated. In this connection, some observations need to be made. The basic question is as to what is implied by the terms afforestation or re-forestation. Is it merely the replacement of one tree with another or does it imply some thing a little more complex? Reforestation is the restocking of existing forests and woodlands which have been depleted, with native tree stock, whereas afforestation is the process of restoring and recreating areas of woodlands or forest that once existed but were deforested or otherwise removed or destroyed at some point in the past. In the present case, we are concerned with afforestation and the promise of the appellant to plant trees in an equivalent area. We, however, find from experience and observation that the re-forestation or afforestation that is being carried out in India does not meet the fundamentals and the planting of new trees to match the numbers removed is too simplistic and archaic a solution, as in the guise of compensatory replantation, local varieties of trees are being replaced by alien and non-indigenous but fast growing varieties such as poplar and eucalyptus which make up the numbers but cannot satisfy the needs of our environmental system. It must be borne in mind that both re-forestation and afforestation envisage a resurrection and re-plantation of trees and other flora similar to those which have been removed and which are suitable to the area in question. There is yet another circumstance which is even more disturbing inasmuch as the removal of existing forest or trees suited to the local environment have destroyed the eco system dependent on them. This is evident from the huge depletion of wild life on account of the disturbance of the habitat arising out of the destruction of the existing forest cover. A small but significant example is the destruction of plantations alongside the arterial roads in India. 30 years ago all arterial roads had huge peripheral forest cover which not only provided shade and shelter to the traveller but were a haven to a large variety and number of birds and other wild life peculiar to that area. With the removal of these plantations to widen the roads to meet the ever growing needs of the traffic, and their replacement by trees of non-indigenous varieties, (which are often not eco or bird friendly) in the restricted and remaining areas bordering the widened roads, the shelter for birds has been destroyed and where thousands of birds once nested and bred, there has been a virtual annihilation of the bird life as well. Those who live in North India would do well to remember that a drive along the Grand Trunk Road, National Highway No.1, northwards of Delhi, particularly during the hours of dawn or dusk, was as if through an aviary with thousands of birds representing a myriad of species with their distinctive calls reaching a crescendo during early evening and gradually fading into silence as darkness set in. Sadly, all that can now be seen are crows feeding on the decaying and mutilated carcasses of dogs and other animals killed by speeding vehicles. Equally disturbing is the decrease in the reptilian population as the undergrowth in which it lived and prospered has been destroyed, and with the concomitant increase in the rodent population, colossal losses and damage to the farmer and in the storage of food grains. 10. We are, therefore, of the opinion that there is no | 0[ds]can be no doubt that the land leased out to the appellant was indeed a forestSome arguments have flown during the course of the hearing that the appellants were willing to reforest an identical area in case the lease was allowed to be effectuated. In this connection, some observations need to be made. The basic question is as to what is implied by the terms afforestation or re-forestation. Is it merely the replacement of one tree with another or does it imply some thing a little more complex? Reforestation is the restocking of existing forests and woodlands which have been depleted, with native tree stock, whereas afforestation is the process of restoring and recreating areas of woodlands or forest that once existed but were deforested or otherwise removed or destroyed at some point in the past. In the present case, we are concerned with afforestation and the promise of the appellant to plant trees in an equivalent area. We, however, find from experience and observation that the re-forestation or afforestation that is being carried out in India does not meet the fundamentals and the planting of new trees to match the numbers removed is too simplistic and archaic a solution, as in the guise of compensatory replantation, local varieties of trees are being replaced by alien and non-indigenous but fast growing varieties such as poplar and eucalyptus which make up the numbers but cannot satisfy the needs of our environmental system. It must be borne in mind that both re-forestation and afforestation envisage a resurrection and re-plantation of trees and other flora similar to those which have been removed and which are suitable to the area in question. There is yet another circumstance which is even more disturbing inasmuch as the removal of existing forest or trees suited to the local environment have destroyed the eco system dependent on them. This is evident from the huge depletion of wild life on account of the disturbance of the habitat arising out of the destruction of the existing forest cover. A small but significant example is the destruction of plantations alongside the arterial roads in India. 30 years ago all arterial roads had huge peripheral forest cover which not only provided shade and shelter to the traveller but were a haven to a large variety and number of birds and other wild life peculiar to that area. With the removal of these plantations to widen the roads to meet the ever growing needs of the traffic, and their replacement by trees of non-indigenous varieties, (which are often not eco or bird friendly) in the restricted and remaining areas bordering the widened roads, the shelter for birds has been destroyed and where thousands of birds once nested and bred, there has been a virtual annihilation of the bird life as well. Those who live in North India would do well to remember that a drive along the Grand Trunk Road, National Highway No.1, northwards of Delhi, particularly during the hours of dawn or dusk, was as if through an aviary with thousands of birds representing a myriad of species with their distinctive calls reaching a crescendo during early evening and gradually fading into silence as darkness set in. Sadly, all that can now be seen are crows feeding on the decaying and mutilated carcasses of dogs and other animals killed by speeding vehicles. Equally disturbing is the decrease in the reptilian population as the undergrowth in which it lived and prospered has been destroyed, and with the concomitant increase in the rodent population, colossal losses and damage to the farmer and in the storage of food grains | 0 | 5,087 | 645 | ### 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:
Nagbhushan Rao. We however discern no difference with regard to the basic factum as to the nature of the land in question and the only difference, if at all, is with regard to the number of trees per hectare said to be growing on the land. We, thus, have no hesitation in confirming this finding of fact. In T.N.Godavarman Thirumulkpad case (supra), this Court expressed its dissatisfaction with some of the State Governments in the implementation of the provisions of the Act and observed thus: The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word forest must be understood according to its dictionary meaning. This description covers all statutorily recognized forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term forest land, occurring in Section 2 will not only include forest as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works vs. State of Gujarat, Rural Litigation and Entitlement Kendra vs. State of U.P. and recently in the order dated 29.11.1996 (Supreme Court Monitoring Committee vs. Mussoorie Dehradun Development Authority). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. 8. We are, therefore, of the opinion that in the light of the aforesaid emphatic and clear cut observations, and findings of fact, there can be no doubt that the land leased out to the appellant was indeed a forest. 9. Some arguments have flown during the course of the hearing that the appellants were willing to reforest an identical area in case the lease was allowed to be effectuated. In this connection, some observations need to be made. The basic question is as to what is implied by the terms afforestation or re-forestation. Is it merely the replacement of one tree with another or does it imply some thing a little more complex? Reforestation is the restocking of existing forests and woodlands which have been depleted, with native tree stock, whereas afforestation is the process of restoring and recreating areas of woodlands or forest that once existed but were deforested or otherwise removed or destroyed at some point in the past. In the present case, we are concerned with afforestation and the promise of the appellant to plant trees in an equivalent area. We, however, find from experience and observation that the re-forestation or afforestation that is being carried out in India does not meet the fundamentals and the planting of new trees to match the numbers removed is too simplistic and archaic a solution, as in the guise of compensatory replantation, local varieties of trees are being replaced by alien and non-indigenous but fast growing varieties such as poplar and eucalyptus which make up the numbers but cannot satisfy the needs of our environmental system. It must be borne in mind that both re-forestation and afforestation envisage a resurrection and re-plantation of trees and other flora similar to those which have been removed and which are suitable to the area in question. There is yet another circumstance which is even more disturbing inasmuch as the removal of existing forest or trees suited to the local environment have destroyed the eco system dependent on them. This is evident from the huge depletion of wild life on account of the disturbance of the habitat arising out of the destruction of the existing forest cover. A small but significant example is the destruction of plantations alongside the arterial roads in India. 30 years ago all arterial roads had huge peripheral forest cover which not only provided shade and shelter to the traveller but were a haven to a large variety and number of birds and other wild life peculiar to that area. With the removal of these plantations to widen the roads to meet the ever growing needs of the traffic, and their replacement by trees of non-indigenous varieties, (which are often not eco or bird friendly) in the restricted and remaining areas bordering the widened roads, the shelter for birds has been destroyed and where thousands of birds once nested and bred, there has been a virtual annihilation of the bird life as well. Those who live in North India would do well to remember that a drive along the Grand Trunk Road, National Highway No.1, northwards of Delhi, particularly during the hours of dawn or dusk, was as if through an aviary with thousands of birds representing a myriad of species with their distinctive calls reaching a crescendo during early evening and gradually fading into silence as darkness set in. Sadly, all that can now be seen are crows feeding on the decaying and mutilated carcasses of dogs and other animals killed by speeding vehicles. Equally disturbing is the decrease in the reptilian population as the undergrowth in which it lived and prospered has been destroyed, and with the concomitant increase in the rodent population, colossal losses and damage to the farmer and in the storage of food grains. 10. We are, therefore, of the opinion that there is no
### Response:
0
### Explanation:
can be no doubt that the land leased out to the appellant was indeed a forestSome arguments have flown during the course of the hearing that the appellants were willing to reforest an identical area in case the lease was allowed to be effectuated. In this connection, some observations need to be made. The basic question is as to what is implied by the terms afforestation or re-forestation. Is it merely the replacement of one tree with another or does it imply some thing a little more complex? Reforestation is the restocking of existing forests and woodlands which have been depleted, with native tree stock, whereas afforestation is the process of restoring and recreating areas of woodlands or forest that once existed but were deforested or otherwise removed or destroyed at some point in the past. In the present case, we are concerned with afforestation and the promise of the appellant to plant trees in an equivalent area. We, however, find from experience and observation that the re-forestation or afforestation that is being carried out in India does not meet the fundamentals and the planting of new trees to match the numbers removed is too simplistic and archaic a solution, as in the guise of compensatory replantation, local varieties of trees are being replaced by alien and non-indigenous but fast growing varieties such as poplar and eucalyptus which make up the numbers but cannot satisfy the needs of our environmental system. It must be borne in mind that both re-forestation and afforestation envisage a resurrection and re-plantation of trees and other flora similar to those which have been removed and which are suitable to the area in question. There is yet another circumstance which is even more disturbing inasmuch as the removal of existing forest or trees suited to the local environment have destroyed the eco system dependent on them. This is evident from the huge depletion of wild life on account of the disturbance of the habitat arising out of the destruction of the existing forest cover. A small but significant example is the destruction of plantations alongside the arterial roads in India. 30 years ago all arterial roads had huge peripheral forest cover which not only provided shade and shelter to the traveller but were a haven to a large variety and number of birds and other wild life peculiar to that area. With the removal of these plantations to widen the roads to meet the ever growing needs of the traffic, and their replacement by trees of non-indigenous varieties, (which are often not eco or bird friendly) in the restricted and remaining areas bordering the widened roads, the shelter for birds has been destroyed and where thousands of birds once nested and bred, there has been a virtual annihilation of the bird life as well. Those who live in North India would do well to remember that a drive along the Grand Trunk Road, National Highway No.1, northwards of Delhi, particularly during the hours of dawn or dusk, was as if through an aviary with thousands of birds representing a myriad of species with their distinctive calls reaching a crescendo during early evening and gradually fading into silence as darkness set in. Sadly, all that can now be seen are crows feeding on the decaying and mutilated carcasses of dogs and other animals killed by speeding vehicles. Equally disturbing is the decrease in the reptilian population as the undergrowth in which it lived and prospered has been destroyed, and with the concomitant increase in the rodent population, colossal losses and damage to the farmer and in the storage of food grains
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JANHIT ABHIYAN Vs. UNION OF INDIA | 1. The entitlement of the petitioners to an appropriate interim order is the precise question that is being dealt with by the Court by the present order.2. By the 103rd Constitutional amendment, after clause (5) of Article 16, the following clause numbered as clause (6) has been inserted:-?(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.?3. Though an enabling provision, the State of Maharashtra by notifications dated 12.2.2019 and 7.3.2019 has extended the benefit of reservation to the extent of 10% to economically weaker sections, inter alia, in postgraduate medical courses. The bone of contention between the parties is whether the aforesaid decision following the Constitutional amendment will apply to the ongoing admission process which had commenced in the month of November, 2018 i.e. well before the coming into force of the Constitutional amendment (January, 2019) and the notifications of February and March, 2019.4. Not only we are reminded of the time-tested principle of law that the modalities of selection cannot be changed after initiation of the process, in a similar matter involving reservation of 16% seats for socially and educationally backward classes including the Maratha community in the educational institutions in the State of Maharashtra in terms of provisions of the Maharashtra State Reservation (of Seats for Admission in Educational Institutions in the State and for Appointments in the Public Services and Posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018, the Bombay High Court had taken the view that the said Act having come into force with effect from 30.11.2018, could not be made applicable to the very same admission process as the same had been initiated earlier i.e. on 2.11.2018. The special leave petition against the said order of the Bombay High Court has since been dismissed by this Court.5. Having considered the matter, we are of the view, at this stage, that though the State may act under the enabling provision contained in Article 16(6) of the Constitution, as introduced by the 103rd Constitutional amendment, unless additional seats are sanctioned by the Medical Council of India, the existing seats cannot be subjected to the provisions of the aforesaid Constitutional amendment by issuing appropriate notifications, as has been done in this case. | 1[ds]4. Not only we are reminded of the time-tested principle of law that the modalities of selection cannot be changed after initiation of the process, in a similar matter involving reservation of 16% seats for socially and educationally backward classes including the Maratha community in the educational institutions in the State of Maharashtra in terms of provisions of the Maharashtra State Reservation (of Seats for Admission in Educational Institutions in the State and for Appointments in the Public Services and Posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018, the Bombay High Court had taken the view that the said Act having come into force with effect from 30.11.2018, could not be made applicable to the very same admission process as the same had been initiated earlier i.e. on 2.11.2018. The special leave petition against the said order of the Bombay High Court has since been dismissed by this Court.Having considered the matter, we are of the view, at this stage, that though the State may act under the enabling provision contained in Article 16(6) of the Constitution, as introduced by the 103rd Constitutional amendment, unless additional seats are sanctioned by the Medical Council of India, the existing seats cannot be subjected to the provisions of the aforesaid Constitutional amendment by issuing appropriate notifications, as has been done in this case. | 1 | 475 | 254 | ### 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:
1. The entitlement of the petitioners to an appropriate interim order is the precise question that is being dealt with by the Court by the present order.2. By the 103rd Constitutional amendment, after clause (5) of Article 16, the following clause numbered as clause (6) has been inserted:-?(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.?3. Though an enabling provision, the State of Maharashtra by notifications dated 12.2.2019 and 7.3.2019 has extended the benefit of reservation to the extent of 10% to economically weaker sections, inter alia, in postgraduate medical courses. The bone of contention between the parties is whether the aforesaid decision following the Constitutional amendment will apply to the ongoing admission process which had commenced in the month of November, 2018 i.e. well before the coming into force of the Constitutional amendment (January, 2019) and the notifications of February and March, 2019.4. Not only we are reminded of the time-tested principle of law that the modalities of selection cannot be changed after initiation of the process, in a similar matter involving reservation of 16% seats for socially and educationally backward classes including the Maratha community in the educational institutions in the State of Maharashtra in terms of provisions of the Maharashtra State Reservation (of Seats for Admission in Educational Institutions in the State and for Appointments in the Public Services and Posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018, the Bombay High Court had taken the view that the said Act having come into force with effect from 30.11.2018, could not be made applicable to the very same admission process as the same had been initiated earlier i.e. on 2.11.2018. The special leave petition against the said order of the Bombay High Court has since been dismissed by this Court.5. Having considered the matter, we are of the view, at this stage, that though the State may act under the enabling provision contained in Article 16(6) of the Constitution, as introduced by the 103rd Constitutional amendment, unless additional seats are sanctioned by the Medical Council of India, the existing seats cannot be subjected to the provisions of the aforesaid Constitutional amendment by issuing appropriate notifications, as has been done in this case.
### Response:
1
### Explanation:
4. Not only we are reminded of the time-tested principle of law that the modalities of selection cannot be changed after initiation of the process, in a similar matter involving reservation of 16% seats for socially and educationally backward classes including the Maratha community in the educational institutions in the State of Maharashtra in terms of provisions of the Maharashtra State Reservation (of Seats for Admission in Educational Institutions in the State and for Appointments in the Public Services and Posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018, the Bombay High Court had taken the view that the said Act having come into force with effect from 30.11.2018, could not be made applicable to the very same admission process as the same had been initiated earlier i.e. on 2.11.2018. The special leave petition against the said order of the Bombay High Court has since been dismissed by this Court.Having considered the matter, we are of the view, at this stage, that though the State may act under the enabling provision contained in Article 16(6) of the Constitution, as introduced by the 103rd Constitutional amendment, unless additional seats are sanctioned by the Medical Council of India, the existing seats cannot be subjected to the provisions of the aforesaid Constitutional amendment by issuing appropriate notifications, as has been done in this case.
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Commissioner of Commercial Taxes, Bangalore Vs. A. Vaikuntappa Setty and Company and Others (This Case Has Been Referred To In [1999] | any proceeding under this section is stayed by an order or injunction of any court shall be excluded." * 2. The factual matrix may be briefly noticed with reference to one of the appellants. For the assessment year 1970-71 the purchase turnover of paddy effected by the appellant amounting to Rs. 12, 69, 286.25 and Rs. 29, 93, 521.26 was brought to tax by the Commercial Tax Officer under assessment orders dated September 29, 1973 and April 30, 1974 respectively. The appellant preferred appeals to the Deputy Commissioner of Commercial Taxes (Appeals) contending that the paddy converted into rice could not be said to have undergone a manufacturing process and hence his turnovers were not exigible to tax under section6 of the Act. The Deputy Commissioner following a Division Bench judgment in State v. B. Raghurama Shetty (Kar) allowed the appeals by his order dated March 14, 1975. The matter was brought to this Court and on March 24, 1981 this Court allowed the States appeal from the Division Bench judgment on which the decision of the Deputy Commissioner had been based. [vide State of Karnataka v. B. Raghurama Shetty (SC)].3. While the proceedings were pending in this Court in respect of the Division Bench judgment, on March 18, 1977 the Deputy Commissioner forwarded the records of his office to the Commissioner of Commercial Taxes, Karnataka, for needful action. The records were received by the Commissioner on March 23, 1977. The office of the Commissioner thereupon prepared a note, paragraph 3 of which read as under :"The above cases may lie over till the Supreme Courts decision in B. R. Shettys case is received as we cannot initiate action under section 22-A for the present." * 4. On the basis of this note the Commissioner approved the suggestion in paragraph 3 on July 8, 1977. This Court rendered its decision on March 24, 1981 and it was thereafter that the Commissioner issued show cause notice on May 27, 1981 purporting to exercise power under section22-A of the Act. The assessee contends that the exercise of this power is delayed beyond the period of limitation which had expired and, therefore, notices were issued by the Commissioner illegally and are liable to be quashed. However, the contention of the Revenue was that since the files were placed before the Commissioner and the Commissioner took a decision in paragraph 3 of the note extracted above, he could be said to have initiated action in exercise of the power conferred upon him by that section and, therefore, the notices were not barred by limitation. In the show cause notice issued by the Commissioner it is averred that the notice is not barred by limitation for the reason "in your case the records have been received for examination in this office on March 23, 1977 which date is well within the period of limitation and, therefore, action under section 22-A in your case is not barred by limitation". The question is whether this approach of the Commissioner is correct ? We think not. 5. It is clear from the plain language of sub-section (2) of section 22-A that the power conferred on the Commissioner could be exercised within a period of four years from the date of the order sought to be revised. There is no dispute that this stage had long expired when the show cause notice was issued to the assessee. There was no order of stay or injunction issued in that behalf to extend the period of limitation as provided by the explanation to that section. The stand of the department extracted earlier is that since the records were examined on March 23, 1977 the action was initiated within the period of limitation since the limitation whether of 4 years had not then expired; in the case of appellant No. 6, the order of the Deputy Commissioner was of November 4, 1974 and the period of limitation would expire only on November 3, 1978. In other cases also it would expire much later. 6. This stand of the Revenue is not correct for the simple reason that the note extracted earlier clearly suggests that no action was initiated under section 22-A as the judgment of this Court was awaited in B. R. Shettys case which was pending in this Court. Hence it was not possible to initiate any action under section 22-A for the present. The words "we cannot initiate action under section 22-A for the present" leave no room for doubt that no action was initiated and, therefore, it was not correct to state in the show cause notice that since the records had been received for examination on March 23, 1977 the action under section 22-A must be taken to have been initiated on that date. It is also pertinent to note that the facts clearly show that it was the Deputy Commissioner who forwarded the records to the Commissioner on March 18, 1977 and the records were received by the Commissioner on March 23, 1977. Thereafter, the Commissioner had to make up his mind whether or not he considered it necessary to initiate action under section22-A of the Act. In this behalf he accepted the suggestion in paragraph 3 of the departmental note extracted earlier and agreed that he could not initiate action under section 22-A since this Courts decision in B. R. Shettys case was awaited. Whether he was right in doing so or not is not relevant but it is obvious that he did not initiate any action even after the receipt of the records for the reason mentioned in paragraph 3 of the departmental note. We have, therefore, no hesitation in coming to the conclusion that the reason trotted out in the show cause notice for saving the action from being barred by limitation has no basis and cannot stand judicial scrutiny. We are, therefore, of the opinion that the conclusion reached by the High Court in the impugned decision in this behalf is clearly erroneous. | 1[ds]ce it was not possible to initiate any action under sectionfor the present. The words "we cannot initiate action under sectionfor the present" leave no room for doubt that no action was initiated and, therefore, it was not correct to state in the show cause notice that since the records had been received for examination on March 23, 1977 the action under sectionmust be taken to have been initiated on that date. It is also pertinent to note that the facts clearly show that it was the Deputy Commissioner who forwarded the records to the Commissioner on March 18, 1977 and the records were received by the Commissioner on March 23, 1977. Thereafter, the Commissioner had to make up his mind whether or not he considered it necessary to initiate action underof the Act. In this behalf he accepted the suggestion in paragraph 3 of the departmental note extracted earlier and agreed that he could not initiate action under sectionsince this Courts decision in B. R. Shettys case was awaited. Whether he was right in doing so or not is not relevant but it is obvious that he did not initiate any action even after the receipt of the records for the reason mentioned in paragraph 3 of the departmentalhave, therefore, no hesitation in coming to the conclusion that the reason trotted out in the show cause notice for saving the action from being barred by limitation has no basis and cannot stand judicial scrutiny. We are, therefore, of the opinion that the conclusion reached by the High Court in the impugned decision in this behalf is clearly erroneous. | 1 | 1,356 | 294 | ### 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:
any proceeding under this section is stayed by an order or injunction of any court shall be excluded." * 2. The factual matrix may be briefly noticed with reference to one of the appellants. For the assessment year 1970-71 the purchase turnover of paddy effected by the appellant amounting to Rs. 12, 69, 286.25 and Rs. 29, 93, 521.26 was brought to tax by the Commercial Tax Officer under assessment orders dated September 29, 1973 and April 30, 1974 respectively. The appellant preferred appeals to the Deputy Commissioner of Commercial Taxes (Appeals) contending that the paddy converted into rice could not be said to have undergone a manufacturing process and hence his turnovers were not exigible to tax under section6 of the Act. The Deputy Commissioner following a Division Bench judgment in State v. B. Raghurama Shetty (Kar) allowed the appeals by his order dated March 14, 1975. The matter was brought to this Court and on March 24, 1981 this Court allowed the States appeal from the Division Bench judgment on which the decision of the Deputy Commissioner had been based. [vide State of Karnataka v. B. Raghurama Shetty (SC)].3. While the proceedings were pending in this Court in respect of the Division Bench judgment, on March 18, 1977 the Deputy Commissioner forwarded the records of his office to the Commissioner of Commercial Taxes, Karnataka, for needful action. The records were received by the Commissioner on March 23, 1977. The office of the Commissioner thereupon prepared a note, paragraph 3 of which read as under :"The above cases may lie over till the Supreme Courts decision in B. R. Shettys case is received as we cannot initiate action under section 22-A for the present." * 4. On the basis of this note the Commissioner approved the suggestion in paragraph 3 on July 8, 1977. This Court rendered its decision on March 24, 1981 and it was thereafter that the Commissioner issued show cause notice on May 27, 1981 purporting to exercise power under section22-A of the Act. The assessee contends that the exercise of this power is delayed beyond the period of limitation which had expired and, therefore, notices were issued by the Commissioner illegally and are liable to be quashed. However, the contention of the Revenue was that since the files were placed before the Commissioner and the Commissioner took a decision in paragraph 3 of the note extracted above, he could be said to have initiated action in exercise of the power conferred upon him by that section and, therefore, the notices were not barred by limitation. In the show cause notice issued by the Commissioner it is averred that the notice is not barred by limitation for the reason "in your case the records have been received for examination in this office on March 23, 1977 which date is well within the period of limitation and, therefore, action under section 22-A in your case is not barred by limitation". The question is whether this approach of the Commissioner is correct ? We think not. 5. It is clear from the plain language of sub-section (2) of section 22-A that the power conferred on the Commissioner could be exercised within a period of four years from the date of the order sought to be revised. There is no dispute that this stage had long expired when the show cause notice was issued to the assessee. There was no order of stay or injunction issued in that behalf to extend the period of limitation as provided by the explanation to that section. The stand of the department extracted earlier is that since the records were examined on March 23, 1977 the action was initiated within the period of limitation since the limitation whether of 4 years had not then expired; in the case of appellant No. 6, the order of the Deputy Commissioner was of November 4, 1974 and the period of limitation would expire only on November 3, 1978. In other cases also it would expire much later. 6. This stand of the Revenue is not correct for the simple reason that the note extracted earlier clearly suggests that no action was initiated under section 22-A as the judgment of this Court was awaited in B. R. Shettys case which was pending in this Court. Hence it was not possible to initiate any action under section 22-A for the present. The words "we cannot initiate action under section 22-A for the present" leave no room for doubt that no action was initiated and, therefore, it was not correct to state in the show cause notice that since the records had been received for examination on March 23, 1977 the action under section 22-A must be taken to have been initiated on that date. It is also pertinent to note that the facts clearly show that it was the Deputy Commissioner who forwarded the records to the Commissioner on March 18, 1977 and the records were received by the Commissioner on March 23, 1977. Thereafter, the Commissioner had to make up his mind whether or not he considered it necessary to initiate action under section22-A of the Act. In this behalf he accepted the suggestion in paragraph 3 of the departmental note extracted earlier and agreed that he could not initiate action under section 22-A since this Courts decision in B. R. Shettys case was awaited. Whether he was right in doing so or not is not relevant but it is obvious that he did not initiate any action even after the receipt of the records for the reason mentioned in paragraph 3 of the departmental note. We have, therefore, no hesitation in coming to the conclusion that the reason trotted out in the show cause notice for saving the action from being barred by limitation has no basis and cannot stand judicial scrutiny. We are, therefore, of the opinion that the conclusion reached by the High Court in the impugned decision in this behalf is clearly erroneous.
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ce it was not possible to initiate any action under sectionfor the present. The words "we cannot initiate action under sectionfor the present" leave no room for doubt that no action was initiated and, therefore, it was not correct to state in the show cause notice that since the records had been received for examination on March 23, 1977 the action under sectionmust be taken to have been initiated on that date. It is also pertinent to note that the facts clearly show that it was the Deputy Commissioner who forwarded the records to the Commissioner on March 18, 1977 and the records were received by the Commissioner on March 23, 1977. Thereafter, the Commissioner had to make up his mind whether or not he considered it necessary to initiate action underof the Act. In this behalf he accepted the suggestion in paragraph 3 of the departmental note extracted earlier and agreed that he could not initiate action under sectionsince this Courts decision in B. R. Shettys case was awaited. Whether he was right in doing so or not is not relevant but it is obvious that he did not initiate any action even after the receipt of the records for the reason mentioned in paragraph 3 of the departmentalhave, therefore, no hesitation in coming to the conclusion that the reason trotted out in the show cause notice for saving the action from being barred by limitation has no basis and cannot stand judicial scrutiny. We are, therefore, of the opinion that the conclusion reached by the High Court in the impugned decision in this behalf is clearly erroneous.
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Gangadhar Yeshwant Bhandare Vs. Erasmo De Jesus Sequiria | the Chief Secretary, there was no objection to the respondent being treated as a citizen of India under the Citizenship Order. On December 15, 1964 a communication was sent to the respondent by the Under Secretary, Home Department of the Government of Goa, Daman and Diu that prima facie the respondent had become a citizen of India by virtue of the Citizenship Order. More than four and a half years thereafter on July 1, 1969 the Inspector General of Police addressed a letter to the Chief Secretary, Government of Goa, Daman and Diu that the respondent had made declaration P3 dated April 27, 1962 choosing to retain Portuguese citizenship and that this fact had not been brought to the notice of the Government before letter dated December 15, 1964 was issued to the respondent that he had prima facie become a citizen of India. The Chief Secretary thereafter addressed a letter to the Ministry of Home Affairs and informed the Additional Secretary in that ministry about the making of the above declaration by the respondent. There was then further correspondence between the Government of India and the Government of Goa, Daman and Diu. On July 26, l970 the Joint Secretary to the Government of India, Ministry of Home Affairs addressed letter P52 to the respondent that the matter regarding his claim to Indian citizenship had been reconsidered and it had been decided that the matter should be treated as closed. The Government of India thus reaffirmed its decision which had been conveyed to the respondent in 1964 that the respondent had become prima facie a citizen of India by virtue of the Citizenship Order. It is also plain that the Central Government reaffirmed its decision that the respondent had prima facie become a citizen of India in spite of the fact that the Central Government was informed about the making of declaration P3 by the respondent on April 27, 1962. On July 27, 1970 the Joint Secretary in the Ministry of Home Affairs addressed the following letter R3 to the respondent:"I am directed to refer to your letter dated 27th July, 1970 requesting for grant of a certificate of citizenship under Section 13 of the Citizenship Act, 1955, and to say that since the Goa Administration have in their letter No. HD-9-436/64 dated 15th December, 1964, already informed you that you have prima facie become a citizen of India by virtue the Goa, Daman and Diu (Citizenship) Order, 1962, the necessity of a certificate under Section 13 does not arise."20. As already mentioned, the learned Judicial Commissioner has held that the above letter taken along with the preceding correspondence should be construed as a certificate issued by the Central Government under Section 13 of the Citizenship Act. We find no cogent ground to take a different view. By the above letter the Government of India plainly reiterated and reaffirmed its view conveyed to the respondent on December 15, 1964 that he had prima facie become a citizen of India by virtue of the Citizenship Order. It was no doubt mentioned in the letter that the necessity of a certificate under Section 13 does not arise, but this was plainly in view of the assumption made by the Government of India as expressed in that letter that the respondent was already accepted to be a citizen of India. The learned Judicial Commissioner, in the circumstances, cannot be held to be in error in construing letter R3 and the preceding correspondence as a certificate under Section 13 of the Citizenship Act.21. To put it differently, Section 13 vests the Central Government with power to certify in case a doubt exists as to whether a particular person is a citizen of India that he is such a citizen. In the case of the respondent a doubt was raised by the Government of Goa, Daman and Diu on the point as to whether he was a citizen of India. The Government of Goa, Daman and Diu in this context referred to the fact that the respondent while praying on January 15, 1964 for being declared Indian citizen had suppressed the fact about his having signed declaration P3 on April 27, 1962 choosing to retain Portuguese nationality. The Central Government even after being apprised of that fact refused to reconsider its decision of 1964 and observed that the matter should be treated as closed. When the respondent thereafter asked for certificate under Section 13 the Central Government said that no such certificate was necessary in view of the earlier official communication which had been sent to him that he had prima facie become a citizen of India.22.These facts, in our opinion, clearly establish that the Central Government after being put in possession of all relevant facts reiterated in view that the respondent was an Indian citizen and should be considered as such letters dated July 26, 1970 and July 27, 1970, though they do not profess to be certificates issued under Section 13 and though the later of these two letters recites that there was no necessity of a certificate, clearly incorporate the view of the Government of India that the respondent was an Indian citizen. The letters thus serve the purpose of a certificate and we agree with Mr. Sen, counsel for the respondent, that they operated as certificate and should be construed as such.23. We may observe that the Government of India issued a passport in favour of the respondent in 1965 and thereafter in 1970. The respondent before his election to the Lok Sabha in 1971 was also a member of the Lok Sabha from 1967 till 1971. When elected as a member of the Lok Sabha in 1967 as also when he obtained the Indian passport in l965 and 1970 the respondent had to sign the declaration that he was an Indian citizen. He has already renounced his Portuguese citizenship. To hold at this stage that the respondent is not an Indian citizen would have the effect of rendering him Stateless.24. | 0[ds]We have given our careful consideration to the submission of Mr. Bhandare and though we agree with him that as provided in Article 84 of the Constitution, a person shall not be qualified to be chosen to fill a seat in Parliament unless he is a citizen of India, we find it difficult to accept his other contentions.Handoo was a senior officer who dealt with foreign intelligence and security of Goa. At the relevant time he was Special Adviser to the Lt.-Governor. So far as the present proceedings of the election petition are concerned, he is wholly disinterested and there appears to be no cogent ground whatsoever as to why he should give false evidence in favour of the respondent. As regards the respondent, we find that he was subjected to lengthy and searching cross-examination lasting for 11 days. The learned Judicial Commissioner has commended the demeanour of the respondent in the witness-box and has observed that the respondents clear, unhesitating and firm answers impressed him for the truthfulness. According to the Judicial Commissioner, the evidentiary value of the respondents statement, instead of being weakened, was fortified as a result of cross-examination. This Court in an election appeal normally does not interfere with the appraisement of the evidence of the witnesses by the High Court unless such appraisement is afflicted with some glaring infirmity. After having been taken through the evidence of Handoo and the respondent, we find no reason whatsoever to take a view different from that taken by the Judicial Commissioner regarding the trustworthiness of the tworespondent repudiated this suggestion and we find that apart from this bare suggestion in cross-examination there is no other material on the record to show that the suggestion was well-founded. We further find that Handoo retired from Government service and did not hold any official position after November 1962. His evidence in the present proceedings was recorded on commission in August 1972. Handoo being no longer in Government service at the time of the recording of his evidence, it is not clear as to how he could be influenced by the party in power at the Centre to give evidence in favour of the respondent. The evidence of the respondent and Handoo is also borne out by the letter which was addressed by the respondent to Handoo on April 27,1962 and the note made on that letter by Handoo. The words "as agreed" in the above letter go to show that it was in pursuance of some arrangement between Handoo and the respondent that the latter was retaining his Portuguese passport and visiting Portugal. The note which was made by Handoo expressly refers to the fact that the respondent after returning from his foreign trip was to take over an Indian passport and renounce Portuguese nationality. No express reference to the secret mission in the very nature of things could be expected either in the letter or in the note. It was obviously essential for the success of the secret mission that things should not be divulged by making them explicit.The evidence of the respondent and Handoo also shows that the expenses for the foreign trip of the respondent were borne partly by the Government and partly by the respondent. No question of sharing of those expenses by the Government would arise if the respondent was not undertaking that trip for reasons connected with the affairs of the State as alleged by the respondent.While dealing with the question as to what value should be attached to the evidence adduced by the respondent; we must also bear in mind the written statement which has been filed on behalf of the Union of India. According to the stand taken by the Union of India, declaration dated April 27, 1962 was not signed by the respondent voluntarily but on the advice and at the instance of the Special Adviser Goa. The Union of India has further stated that the residential permits were granted to the respondent with a view to prevent any complication as the respondent held a Portuguese passport for reasons connected with the affairs of the State. Looking to all the facts, we agree with the learned Judicial Commissioner that the evidence on record proves that the respondent was entrusted with a secret mission on behalf of the Government of India and it was in that connection that he was made to sign declaration dated April 27, 1962. We also agree that the intention of the respondent at the time he signed the declaration was not to become a Portuguese national but to acquire Indian nationality and citizenship.The evidence of Handoo and the respondent also establishes that it was at the instance of Handoo in connection with the secret mission entrusted to him that the respondent travelled on a Portuguese passport in 1962 and obtained on the expiry of his passport a fresh passport from Portuguese Consulate in London in June 1962. The evidence further establishes that it was for the same reason that the respondent did not surrender his Portuguese passport on or before January 19, 1963 in accordance with clause 3A inserted in Schedule III to the Citizenship Rules, 1956. The same was the reason, according to that evidence, for the stay of the respondent in Goa as a foreigner on residential permits till January 1964.We are unable to accede to the above submission. The respondent was admittedly born before the 20th day of December 1961 in the Union Territory of Goa, Daman and Diu. As such, but for declaration P3 made by him he would according to clause 2 of the Citizenship Order be deemed to have become a citizen of India on the 20th day of December 1961. Question then arises as to what is the effect of declaration P3 made by the respondent on April 27,1962 and the retention of the Portuguese passport by him after January 19, l963. We have found above that even though the respondent wanted to became an Indian citizen, he signed declaration P3, and retained the Portuguese passport till January 1964 because of the secret mission which had been entrusted to him in connection with the affairs of the State. It cannot, therefore, be said that the choice to retain Portuguese nationality as expressed in declaration P3 as well as the choice to retain the Portuguese passport after January 19, 1963 represented the real choice at the respondent exercised by him voluntarily end of his free volition. On the contrary, it was because of the necessity and the compulsive reason of ensuring the success of the secret mission entrusted to him in connection with the affairs of the State that the respondent signed declaration P3 and retained the Portuguese passport till after January 19, 1963. The evidence on record establishes that declaration P3 was a sham declaration which did not embody the real intention or choice of the person signing it. It was not intended to be acted upon and was signed at the instance of a senior officer acting on behalf of the Government of India because it was considered to be a necessary camouflage and cover to facilitate the carryout of the secret mission entrusted to him in connection with the affairs of the State. The same was the reason for the retention of the Portuguese passport by the respondent after January 1963. As such, declaration P3 and the retention of the passport by the respondent after January 1963 cannot have the effect of depriving the respondent of the benefit of Indian citizenship. It would indeed look anomalous if a declaration signed in the above circumstances were to result in the evil consequence of the respondent being denied the right to became an Indian citizen. We may observe that once a declaration like P3 is signed by a person and he retains a Portuguese passport after the due date, the onus would be very heavy upon him to prove that the declaration was not signed by him voluntarily and that the retention the Portuguese passport by him was also not a voluntary act. Unless he discharges that onus by clear and cogent evidence, the law would take its course and he would not be regarded an Indian citizen. Where, however, as in the present case the person concerned discharges that onus and it is established by clear and cogent evidence that the real choice and intention of the person concerned was to become an Indian national and that he signed the declaration and retained the passport because of the compulsion of a secret assignment entrusted to him in connection with the affairs of the State, he cannot be deprived of his entitlement to Indianthis connection we find that according to Section 13 of the Citizenship Act, the Central Government may, in such cases as it thinks fit, certify that a person, with respect to whose citizenship of India a doubt exists, is a citizen of India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an earlier date. The respondent, as mentioned earlier, surrendered his Portuguese passport on January 15, 1964. While surrendering his passport, the respondent wrote letter dated January 15, 1964 to the Special Officer, Ministry of External Affairs claiming Indian citizenship. The Ministry of External Affairs then referred the matter to the Senior Superintendent of Police Panjim. The statement of the respondent was then recorded by the police and the Senior Superintendent of Police thereafter made a report. A report was then sent to the Ministry of External Affairs by the Chief Secretary, Government of Goa, Daman and Diu. A letter was thereafter sent on behalf of the Ministry of External Affairs on December 2, 1964 to the said Chief Secretary stating that in view of the information supplied by the Chief Secretary, there was no objection to the respondent being treated as a citizen of India under the Citizenship Order. On December 15, 1964 a communication was sent to the respondent by the Under Secretary, Home Department of the Government of Goa, Daman and Diu that prima facie the respondent had become a citizen of India by virtue of the Citizenship Order. More than four and a half years thereafter on July 1, 1969 the Inspector General of Police addressed a letter to the Chief Secretary, Government of Goa, Daman and Diu that the respondent had made declaration P3 dated April 27, 1962 choosing to retain Portuguese citizenship and that this fact had not been brought to the notice of the Government before letter dated December 15, 1964 was issued to the respondent that he had prima facie become a citizen of India. The Chief Secretary thereafter addressed a letter to the Ministry of Home Affairs and informed the Additional Secretary in that ministry about the making of the above declaration by the respondent. There was then further correspondence between the Government of India and the Government of Goa, Daman and Diu. On July 26, l970 the Joint Secretary to the Government of India, Ministry of Home Affairs addressed letter P52 to the respondent that the matter regarding his claim to Indian citizenship had been reconsidered and it had been decided that the matter should be treated as closed. The Government of India thus reaffirmed its decision which had been conveyed to the respondent in 1964 that the respondent had become prima facie a citizen of India by virtue of the Citizenship Order. It is also plain that the Central Government reaffirmed its decision that the respondent had prima facie become a citizen of India in spite of the fact that the Central Government was informed about the making of declaration P3 by the respondent on April 27, 1962.As already mentioned, the learned Judicial Commissioner has held that the above letter taken along with the preceding correspondence should be construed as a certificate issued by the Central Government under Section 13 of the Citizenship Act. We find no cogent ground to take a different view. By the above letter the Government of India plainly reiterated and reaffirmed its view conveyed to the respondent on December 15, 1964 that he had prima facie become a citizen of India by virtue of the Citizenship Order. It was no doubt mentioned in the letter that the necessity of a certificate under Section 13 does not arise, but this was plainly in view of the assumption made by the Government of India as expressed in that letter that the respondent was already accepted to be a citizen of India. The learned Judicial Commissioner, in the circumstances, cannot be held to be in error in construing letter R3 and the preceding correspondence as a certificate under Section 13 of the Citizenship Act.To put it differently, Section 13 vests the Central Government with power to certify in case a doubt exists as to whether a particular person is a citizen of India that he is such a citizen. In the case of the respondent a doubt was raised by the Government of Goa, Daman and Diu on the point as to whether he was a citizen of India. The Government of Goa, Daman and Diu in this context referred to the fact that the respondent while praying on January 15, 1964 for being declared Indian citizen had suppressed the fact about his having signed declaration P3 on April 27, 1962 choosing to retain Portuguese nationality. The Central Government even after being apprised of that fact refused to reconsider its decision of 1964 and observed that the matter should be treated as closed. When the respondent thereafter asked for certificate under Section 13 the Central Government said that no such certificate was necessary in view of the earlier official communication which had been sent to him that he had prima facie become a citizen offacts, in our opinion, clearly establish that the Central Government after being put in possession of all relevant facts reiterated in view that the respondent was an Indian citizen and should be considered as such letters dated July 26, 1970 and July 27, 1970, though they do not profess to be certificates issued under Section 13 and though the later of these two letters recites that there was no necessity of a certificate, clearly incorporate the view of the Government of India that the respondent was an Indian citizen. The letters thus serve the purpose of a certificate and we agree with Mr. Sen, counsel for the respondent, that they operated as certificate and should be construed as such.We may observe that the Government of India issued a passport in favour of the respondent in 1965 and thereafter in 1970. The respondent before his election to the Lok Sabha in 1971 was also a member of the Lok Sabha from 1967 till 1971. When elected as a member of the Lok Sabha in 1967 as also when he obtained the Indian passport in l965 and 1970 the respondent had to sign the declaration that he was an Indian citizen. He has already renounced his Portuguese citizenship. To hold at this stage that the respondent is not an Indian citizen would have the effect of rendering him Stateless. | 0 | 6,378 | 2,721 | ### Instruction:
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the Chief Secretary, there was no objection to the respondent being treated as a citizen of India under the Citizenship Order. On December 15, 1964 a communication was sent to the respondent by the Under Secretary, Home Department of the Government of Goa, Daman and Diu that prima facie the respondent had become a citizen of India by virtue of the Citizenship Order. More than four and a half years thereafter on July 1, 1969 the Inspector General of Police addressed a letter to the Chief Secretary, Government of Goa, Daman and Diu that the respondent had made declaration P3 dated April 27, 1962 choosing to retain Portuguese citizenship and that this fact had not been brought to the notice of the Government before letter dated December 15, 1964 was issued to the respondent that he had prima facie become a citizen of India. The Chief Secretary thereafter addressed a letter to the Ministry of Home Affairs and informed the Additional Secretary in that ministry about the making of the above declaration by the respondent. There was then further correspondence between the Government of India and the Government of Goa, Daman and Diu. On July 26, l970 the Joint Secretary to the Government of India, Ministry of Home Affairs addressed letter P52 to the respondent that the matter regarding his claim to Indian citizenship had been reconsidered and it had been decided that the matter should be treated as closed. The Government of India thus reaffirmed its decision which had been conveyed to the respondent in 1964 that the respondent had become prima facie a citizen of India by virtue of the Citizenship Order. It is also plain that the Central Government reaffirmed its decision that the respondent had prima facie become a citizen of India in spite of the fact that the Central Government was informed about the making of declaration P3 by the respondent on April 27, 1962. On July 27, 1970 the Joint Secretary in the Ministry of Home Affairs addressed the following letter R3 to the respondent:"I am directed to refer to your letter dated 27th July, 1970 requesting for grant of a certificate of citizenship under Section 13 of the Citizenship Act, 1955, and to say that since the Goa Administration have in their letter No. HD-9-436/64 dated 15th December, 1964, already informed you that you have prima facie become a citizen of India by virtue the Goa, Daman and Diu (Citizenship) Order, 1962, the necessity of a certificate under Section 13 does not arise."20. As already mentioned, the learned Judicial Commissioner has held that the above letter taken along with the preceding correspondence should be construed as a certificate issued by the Central Government under Section 13 of the Citizenship Act. We find no cogent ground to take a different view. By the above letter the Government of India plainly reiterated and reaffirmed its view conveyed to the respondent on December 15, 1964 that he had prima facie become a citizen of India by virtue of the Citizenship Order. It was no doubt mentioned in the letter that the necessity of a certificate under Section 13 does not arise, but this was plainly in view of the assumption made by the Government of India as expressed in that letter that the respondent was already accepted to be a citizen of India. The learned Judicial Commissioner, in the circumstances, cannot be held to be in error in construing letter R3 and the preceding correspondence as a certificate under Section 13 of the Citizenship Act.21. To put it differently, Section 13 vests the Central Government with power to certify in case a doubt exists as to whether a particular person is a citizen of India that he is such a citizen. In the case of the respondent a doubt was raised by the Government of Goa, Daman and Diu on the point as to whether he was a citizen of India. The Government of Goa, Daman and Diu in this context referred to the fact that the respondent while praying on January 15, 1964 for being declared Indian citizen had suppressed the fact about his having signed declaration P3 on April 27, 1962 choosing to retain Portuguese nationality. The Central Government even after being apprised of that fact refused to reconsider its decision of 1964 and observed that the matter should be treated as closed. When the respondent thereafter asked for certificate under Section 13 the Central Government said that no such certificate was necessary in view of the earlier official communication which had been sent to him that he had prima facie become a citizen of India.22.These facts, in our opinion, clearly establish that the Central Government after being put in possession of all relevant facts reiterated in view that the respondent was an Indian citizen and should be considered as such letters dated July 26, 1970 and July 27, 1970, though they do not profess to be certificates issued under Section 13 and though the later of these two letters recites that there was no necessity of a certificate, clearly incorporate the view of the Government of India that the respondent was an Indian citizen. The letters thus serve the purpose of a certificate and we agree with Mr. Sen, counsel for the respondent, that they operated as certificate and should be construed as such.23. We may observe that the Government of India issued a passport in favour of the respondent in 1965 and thereafter in 1970. The respondent before his election to the Lok Sabha in 1971 was also a member of the Lok Sabha from 1967 till 1971. When elected as a member of the Lok Sabha in 1967 as also when he obtained the Indian passport in l965 and 1970 the respondent had to sign the declaration that he was an Indian citizen. He has already renounced his Portuguese citizenship. To hold at this stage that the respondent is not an Indian citizen would have the effect of rendering him Stateless.24.
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letter dated January 15, 1964 to the Special Officer, Ministry of External Affairs claiming Indian citizenship. The Ministry of External Affairs then referred the matter to the Senior Superintendent of Police Panjim. The statement of the respondent was then recorded by the police and the Senior Superintendent of Police thereafter made a report. A report was then sent to the Ministry of External Affairs by the Chief Secretary, Government of Goa, Daman and Diu. A letter was thereafter sent on behalf of the Ministry of External Affairs on December 2, 1964 to the said Chief Secretary stating that in view of the information supplied by the Chief Secretary, there was no objection to the respondent being treated as a citizen of India under the Citizenship Order. On December 15, 1964 a communication was sent to the respondent by the Under Secretary, Home Department of the Government of Goa, Daman and Diu that prima facie the respondent had become a citizen of India by virtue of the Citizenship Order. More than four and a half years thereafter on July 1, 1969 the Inspector General of Police addressed a letter to the Chief Secretary, Government of Goa, Daman and Diu that the respondent had made declaration P3 dated April 27, 1962 choosing to retain Portuguese citizenship and that this fact had not been brought to the notice of the Government before letter dated December 15, 1964 was issued to the respondent that he had prima facie become a citizen of India. The Chief Secretary thereafter addressed a letter to the Ministry of Home Affairs and informed the Additional Secretary in that ministry about the making of the above declaration by the respondent. There was then further correspondence between the Government of India and the Government of Goa, Daman and Diu. On July 26, l970 the Joint Secretary to the Government of India, Ministry of Home Affairs addressed letter P52 to the respondent that the matter regarding his claim to Indian citizenship had been reconsidered and it had been decided that the matter should be treated as closed. The Government of India thus reaffirmed its decision which had been conveyed to the respondent in 1964 that the respondent had become prima facie a citizen of India by virtue of the Citizenship Order. It is also plain that the Central Government reaffirmed its decision that the respondent had prima facie become a citizen of India in spite of the fact that the Central Government was informed about the making of declaration P3 by the respondent on April 27, 1962.As already mentioned, the learned Judicial Commissioner has held that the above letter taken along with the preceding correspondence should be construed as a certificate issued by the Central Government under Section 13 of the Citizenship Act. We find no cogent ground to take a different view. By the above letter the Government of India plainly reiterated and reaffirmed its view conveyed to the respondent on December 15, 1964 that he had prima facie become a citizen of India by virtue of the Citizenship Order. It was no doubt mentioned in the letter that the necessity of a certificate under Section 13 does not arise, but this was plainly in view of the assumption made by the Government of India as expressed in that letter that the respondent was already accepted to be a citizen of India. The learned Judicial Commissioner, in the circumstances, cannot be held to be in error in construing letter R3 and the preceding correspondence as a certificate under Section 13 of the Citizenship Act.To put it differently, Section 13 vests the Central Government with power to certify in case a doubt exists as to whether a particular person is a citizen of India that he is such a citizen. In the case of the respondent a doubt was raised by the Government of Goa, Daman and Diu on the point as to whether he was a citizen of India. The Government of Goa, Daman and Diu in this context referred to the fact that the respondent while praying on January 15, 1964 for being declared Indian citizen had suppressed the fact about his having signed declaration P3 on April 27, 1962 choosing to retain Portuguese nationality. The Central Government even after being apprised of that fact refused to reconsider its decision of 1964 and observed that the matter should be treated as closed. When the respondent thereafter asked for certificate under Section 13 the Central Government said that no such certificate was necessary in view of the earlier official communication which had been sent to him that he had prima facie become a citizen offacts, in our opinion, clearly establish that the Central Government after being put in possession of all relevant facts reiterated in view that the respondent was an Indian citizen and should be considered as such letters dated July 26, 1970 and July 27, 1970, though they do not profess to be certificates issued under Section 13 and though the later of these two letters recites that there was no necessity of a certificate, clearly incorporate the view of the Government of India that the respondent was an Indian citizen. The letters thus serve the purpose of a certificate and we agree with Mr. Sen, counsel for the respondent, that they operated as certificate and should be construed as such.We may observe that the Government of India issued a passport in favour of the respondent in 1965 and thereafter in 1970. The respondent before his election to the Lok Sabha in 1971 was also a member of the Lok Sabha from 1967 till 1971. When elected as a member of the Lok Sabha in 1967 as also when he obtained the Indian passport in l965 and 1970 the respondent had to sign the declaration that he was an Indian citizen. He has already renounced his Portuguese citizenship. To hold at this stage that the respondent is not an Indian citizen would have the effect of rendering him Stateless.
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The Citizen Co-Operative Society Limited, Through Its Managing Director, Hyderabad Vs. Assistant Commissioner of Income Tax, Circle-9 (1), Hyderabad | credit facilities to its members are two different types of activities which are covered under this sub-clause.xx xx xx13. So, in our view, if the income of a society is falling within any one head of exemption, it has to be exempted from tax notwithstanding that the condition of other heads of exemption are not satisfied. A reading of the provisions of section 80P of the Act would indicate the manner in which the exemption under the said provisions is sought to be extended. Whenever the Legislature wanted to restrict the exemption to a primary co-operative society, it was so made clear as is evident from clause (f) with reference to a milk co-operative society that a primary society engaged in supplying milk is entitled to such exemption while denying the same to a federal milk co-operative society."22. The aforesaid judgment of the High Court correctly analyses the provisions of Section 80P of the Act and it is in tune with the judgment of this Court in Kerala State Cooperative Marketing Federation Limited (supra).23. With the insertion of sub-section (4) by the Finance Act, 2006, which is in the nature of a proviso to the aforesaid provision, it is made clear that such a deduction shall not be admissible to a co-operative bank. However, if it is a primary agriculture credit society or a primary co-operative agriculture and rural development bank, the deduction would still be provided. Thus, co-operative banks are now specifically excluded from the ambit of Section 80P of the Act.24. Undoubtedly, if one has to go by the aforesaid definition of co-operative bank, the appellant does not get covered thereby. It is also a matter of common knowledge that in order to do the business of a co-operative bank, it is imperative to have a licence from the Reserve Bank of India, which the appellant does not possess. Not only this, as noticed above, the Reserve Bank of India has itself clarified that the business of the appellant does not amount to that of a co-operative bank. The appellant, therefore, would not come within the mischief of sub-section (4) of Section 80P.25. So far so good. However, it is significant to point out that the main reason for dis-entitling the appellant from getting the deduction provided under Section 80P of the Act is not sub-section (4) thereof. What has been noticed by the Assessing Officer, after discussing in detail the activities of the appellant, is that the activities of the appellant are in violations of the provisions of the MACSA under which it is formed. It is pointed out by the Assessing Officer that the assessee is catering to two distinct categories of people. The first category is that of resident members or ordinary members. There may not be any difficulty as far as this category is concerned. However, the assessee had carved out another category of nominal members. These are those members who are making deposits with the assessee for the purpose of obtaining loans, etc. and, in fact, they are not members in real sense. Most of the business of the appellant was with this second category of persons who have been giving deposits which are kept in Fixed Deposits with a motive to earn maximum returns. A portion of these deposits is utilised to advance gold loans, etc. to the members of the first category. It is found, as a matter of fact, that he depositors and borrowers are quiet distinct. In reality, such activity of the appellant is that of finance business and cannot be termed as co-operative society. It is also found that the appellant is engaged in the activity of granting loans to general public as well. All this is done without any approval from the Registrar of the Societies. With indulgence in such kind of activity by the appellant, it is remarked by the Assessing Officer that the activity of the appellant is in violation of the Co-operative Societies Act. Moreover, it is a co-operative credit society which is not entitled to deduction under Section 80P(2)(a)(i) of the Act.26. It is in this background, a specific finding is also rendered that the principle of mutuality is missing in the instant case. Though there is a detailed discussion in this behalf in the order of the Assessing Officer, our purpose would be served by taking note of the following portion of the discussion:"As various courts have observed that the following three conditions must exist before an activity could be brought under the concept of mutuality;that no person can earn from him;that there a profit motivation;and that there is no sharing of profit.It is noticed that the fund invested with bank which are not member of association welfare fund, and the interest has been earned on such investment for example, ING Mutual Fund [as said by the MD vide his statement dated 20.12.2010]. [Though the bank formed the third party vis-a-vis the assessee entitled between contributor and recipient is lost in such case. The other ingredients of mutuality are also found to be missing as discussed in further paragraphs]. In the present case both the parties to the transaction are the contributors towards surplus, however, there are no participators in the surpluses. There is no common consent of whatsoever for participators as their identity is not established. Hence, the assessee fails to satisfy the test of mutuality at the time of making the payments the number in referred as members may not be the member of the society as such the AOP body by the society is not covered by concept of mutuality at all."27. These are the findings of fact which have remained unshaken till the stage of the High Court. Once we keep the aforesaid aspects in mind, the conclusion is obvious, namely, the appellant cannot be treated as a co-operative society meant only for its members and providing credit facilities to its members. We are afraid such a society cannot claim the benefit of Section 80P of the Act. | 0[ds]17. We have considered the submissions of the counsel for the parties with reference to the record of this case.18. We may mention at the outset that there cannot be any dispute to the proposition that Section 80P of the Act is a benevolent provision which isent in order to encourage and promote growth ofcooperative sector in the economic life of thecountry. It was done pursuant to declared policy of the Government. Therefore, such a provision has to be read liberally, reasonably and in favour of the assessee (SeeBajaj Tempo Limited, Bombay v. Commissioner of Income Tax, BombayBombay, (1992) 3 SCC 78 ). It is also trite that such a provision has to be construed as to effectuate the object of the Legislature and not to defeat it (SeeCommissioner of Income Tax, Bombay & Ors. v. Mahindra and Mahindra Limited & Ors., (1983) 4 SCC 392 ). Therefore, it hardly needs to be emphasised that all thosesocieties which fall within the purview of Section 80P of the Act are entitled to deduction in respect of any income referred to in(2) thereof. Clause (a) of(2) gives exemption of whole of the amount of profits and gains of business attributable to anyone or more of such activities which are mentioned in(2).19. Since we are concerned here with) of clause (a) of(2), it recognises two kinds ofsocieties, namely: (i) those carrying on the business of banking and; (ii) those providing credit facilities to its members.The aforesaid judgment of the High Court correctly analyses the provisions of Section 80P of the Act and it is in tune with the judgment of this Court in Kerala State Cooperative Marketing Federation Limited (supra).23. With the insertion of(4) by the Finance Act, 2006, which is in the nature of a proviso to the aforesaid provision, it is made clear that such a deduction shall not be admissible to abank. However, if it is a primary agriculture credit society or a primaryagriculture and rural development bank, the deduction would still be provided. Thus,banks are now specifically excluded from the ambit of Section 80P of the Act.24. Undoubtedly, if one has to go by the aforesaid definition ofbank, the appellant does not get covered thereby. It is also a matter of common knowledge that in order to do the business of abank, it is imperative to have a licence from the Reserve Bank of India, which the appellant does not possess. Not only this, as noticed above, the Reserve Bank of India has itself clarified that the business of the appellant does not amount to that of abank. The appellant, therefore, would not come within the mischief of(4) of Section 80P.25. So far so good. However, it is significant to point out that the main reason forthe appellant from getting the deduction provided under Section 80P of the Act is not(4) thereof. What has beenby the AssessingOfficer, after discussing in detail the activities of the appellant, is that the activities of the appellant are in violations of the provisions of the MACSA under which it is formed. It is pointed outby the AssessingOfficer that the assessee is catering to two distinct categories of people. The first category is that of resident members or ordinary members. There may not be any difficulty as far as this category is concerned. However, the assessee had carved out another category of nominal members. These are those members who are making deposits with the assessee for the purpose of obtaining loans, etc. and, in fact, they are not members in real sense. Most of the business of the appellant was with this second category of persons who have been giving deposits which are kept in Fixed Deposits with a motive to earn maximum returns. A portion of these deposits is utilised to advance gold loans, etc. to the members of the first category. It is found, as a matter of fact, that he depositors and borrowers are quiet distinct. In reality, such activity of the appellant is that of finance business and cannot be termed associety. It is also found that the appellant is engaged in the activity of granting loans to general public as well. All this is done without any approval from the Registrar of the Societies. With indulgence in such kind of activity by the appellant, it isby the AssessingOfficer that the activity of the appellant is in violation of theSocieties Act. Moreover, it is acooperative credit societywhich is not entitled to deduction under Section 80P(2)(a)(i) of the Act.26. It is in this background, a specific finding is also rendered that the principle of mutuality is missing in the instant case. Though there is a detailed discussion in this behalf in the order of the Assessing Officer, our purpose would be served by taking note of the following portion of thevarious courts have observed that the following three conditions must exist before an activity could be brought under the concept of mutuality;that no person can earn from him;that there a profit motivation;and that there is no sharing of profit.It is noticed that the fund invested with bank which are not member of association welfare fund, and the interest has been earned on such investment for example, ING Mutual Fund [asMD vide his statement dated 20.12.2010]. [Though the bank formed the third partythe assessee entitled between contributor and recipient is lost in such case. The other ingredients of mutuality are also found to be missingas discussed infurther paragraphs]. In the present case both the parties to the transaction are the contributors towards surplus, however, there are no participators in the surpluses. There is no common consent of whatsoever for participators as their identity is not established. Hence, the assessee fails to satisfy the test of mutuality at the time of making the payments the number in referred as members may not be the member of the society as such the AOP body by the society is not covered by concept of mutuality at all.These are the findings of fact which have remained unshaken till the stage of the High Court. Once we keep the aforesaid aspects in mind, the conclusion is obvious, namely, the appellant cannot be treated as asociety meant only for its members and providing credit facilities to its members. We are afraid such a society cannot claim the benefit of Section 80P of the Act. | 0 | 5,867 | 1,217 | ### 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:
credit facilities to its members are two different types of activities which are covered under this sub-clause.xx xx xx13. So, in our view, if the income of a society is falling within any one head of exemption, it has to be exempted from tax notwithstanding that the condition of other heads of exemption are not satisfied. A reading of the provisions of section 80P of the Act would indicate the manner in which the exemption under the said provisions is sought to be extended. Whenever the Legislature wanted to restrict the exemption to a primary co-operative society, it was so made clear as is evident from clause (f) with reference to a milk co-operative society that a primary society engaged in supplying milk is entitled to such exemption while denying the same to a federal milk co-operative society."22. The aforesaid judgment of the High Court correctly analyses the provisions of Section 80P of the Act and it is in tune with the judgment of this Court in Kerala State Cooperative Marketing Federation Limited (supra).23. With the insertion of sub-section (4) by the Finance Act, 2006, which is in the nature of a proviso to the aforesaid provision, it is made clear that such a deduction shall not be admissible to a co-operative bank. However, if it is a primary agriculture credit society or a primary co-operative agriculture and rural development bank, the deduction would still be provided. Thus, co-operative banks are now specifically excluded from the ambit of Section 80P of the Act.24. Undoubtedly, if one has to go by the aforesaid definition of co-operative bank, the appellant does not get covered thereby. It is also a matter of common knowledge that in order to do the business of a co-operative bank, it is imperative to have a licence from the Reserve Bank of India, which the appellant does not possess. Not only this, as noticed above, the Reserve Bank of India has itself clarified that the business of the appellant does not amount to that of a co-operative bank. The appellant, therefore, would not come within the mischief of sub-section (4) of Section 80P.25. So far so good. However, it is significant to point out that the main reason for dis-entitling the appellant from getting the deduction provided under Section 80P of the Act is not sub-section (4) thereof. What has been noticed by the Assessing Officer, after discussing in detail the activities of the appellant, is that the activities of the appellant are in violations of the provisions of the MACSA under which it is formed. It is pointed out by the Assessing Officer that the assessee is catering to two distinct categories of people. The first category is that of resident members or ordinary members. There may not be any difficulty as far as this category is concerned. However, the assessee had carved out another category of nominal members. These are those members who are making deposits with the assessee for the purpose of obtaining loans, etc. and, in fact, they are not members in real sense. Most of the business of the appellant was with this second category of persons who have been giving deposits which are kept in Fixed Deposits with a motive to earn maximum returns. A portion of these deposits is utilised to advance gold loans, etc. to the members of the first category. It is found, as a matter of fact, that he depositors and borrowers are quiet distinct. In reality, such activity of the appellant is that of finance business and cannot be termed as co-operative society. It is also found that the appellant is engaged in the activity of granting loans to general public as well. All this is done without any approval from the Registrar of the Societies. With indulgence in such kind of activity by the appellant, it is remarked by the Assessing Officer that the activity of the appellant is in violation of the Co-operative Societies Act. Moreover, it is a co-operative credit society which is not entitled to deduction under Section 80P(2)(a)(i) of the Act.26. It is in this background, a specific finding is also rendered that the principle of mutuality is missing in the instant case. Though there is a detailed discussion in this behalf in the order of the Assessing Officer, our purpose would be served by taking note of the following portion of the discussion:"As various courts have observed that the following three conditions must exist before an activity could be brought under the concept of mutuality;that no person can earn from him;that there a profit motivation;and that there is no sharing of profit.It is noticed that the fund invested with bank which are not member of association welfare fund, and the interest has been earned on such investment for example, ING Mutual Fund [as said by the MD vide his statement dated 20.12.2010]. [Though the bank formed the third party vis-a-vis the assessee entitled between contributor and recipient is lost in such case. The other ingredients of mutuality are also found to be missing as discussed in further paragraphs]. In the present case both the parties to the transaction are the contributors towards surplus, however, there are no participators in the surpluses. There is no common consent of whatsoever for participators as their identity is not established. Hence, the assessee fails to satisfy the test of mutuality at the time of making the payments the number in referred as members may not be the member of the society as such the AOP body by the society is not covered by concept of mutuality at all."27. These are the findings of fact which have remained unshaken till the stage of the High Court. Once we keep the aforesaid aspects in mind, the conclusion is obvious, namely, the appellant cannot be treated as a co-operative society meant only for its members and providing credit facilities to its members. We are afraid such a society cannot claim the benefit of Section 80P of the Act.
### Response:
0
### Explanation:
economic life of thecountry. It was done pursuant to declared policy of the Government. Therefore, such a provision has to be read liberally, reasonably and in favour of the assessee (SeeBajaj Tempo Limited, Bombay v. Commissioner of Income Tax, BombayBombay, (1992) 3 SCC 78 ). It is also trite that such a provision has to be construed as to effectuate the object of the Legislature and not to defeat it (SeeCommissioner of Income Tax, Bombay & Ors. v. Mahindra and Mahindra Limited & Ors., (1983) 4 SCC 392 ). Therefore, it hardly needs to be emphasised that all thosesocieties which fall within the purview of Section 80P of the Act are entitled to deduction in respect of any income referred to in(2) thereof. Clause (a) of(2) gives exemption of whole of the amount of profits and gains of business attributable to anyone or more of such activities which are mentioned in(2).19. Since we are concerned here with) of clause (a) of(2), it recognises two kinds ofsocieties, namely: (i) those carrying on the business of banking and; (ii) those providing credit facilities to its members.The aforesaid judgment of the High Court correctly analyses the provisions of Section 80P of the Act and it is in tune with the judgment of this Court in Kerala State Cooperative Marketing Federation Limited (supra).23. With the insertion of(4) by the Finance Act, 2006, which is in the nature of a proviso to the aforesaid provision, it is made clear that such a deduction shall not be admissible to abank. However, if it is a primary agriculture credit society or a primaryagriculture and rural development bank, the deduction would still be provided. Thus,banks are now specifically excluded from the ambit of Section 80P of the Act.24. Undoubtedly, if one has to go by the aforesaid definition ofbank, the appellant does not get covered thereby. It is also a matter of common knowledge that in order to do the business of abank, it is imperative to have a licence from the Reserve Bank of India, which the appellant does not possess. Not only this, as noticed above, the Reserve Bank of India has itself clarified that the business of the appellant does not amount to that of abank. The appellant, therefore, would not come within the mischief of(4) of Section 80P.25. So far so good. However, it is significant to point out that the main reason forthe appellant from getting the deduction provided under Section 80P of the Act is not(4) thereof. What has beenby the AssessingOfficer, after discussing in detail the activities of the appellant, is that the activities of the appellant are in violations of the provisions of the MACSA under which it is formed. It is pointed outby the AssessingOfficer that the assessee is catering to two distinct categories of people. The first category is that of resident members or ordinary members. There may not be any difficulty as far as this category is concerned. However, the assessee had carved out another category of nominal members. These are those members who are making deposits with the assessee for the purpose of obtaining loans, etc. and, in fact, they are not members in real sense. Most of the business of the appellant was with this second category of persons who have been giving deposits which are kept in Fixed Deposits with a motive to earn maximum returns. A portion of these deposits is utilised to advance gold loans, etc. to the members of the first category. It is found, as a matter of fact, that he depositors and borrowers are quiet distinct. In reality, such activity of the appellant is that of finance business and cannot be termed associety. It is also found that the appellant is engaged in the activity of granting loans to general public as well. All this is done without any approval from the Registrar of the Societies. With indulgence in such kind of activity by the appellant, it isby the AssessingOfficer that the activity of the appellant is in violation of theSocieties Act. Moreover, it is acooperative credit societywhich is not entitled to deduction under Section 80P(2)(a)(i) of the Act.26. It is in this background, a specific finding is also rendered that the principle of mutuality is missing in the instant case. Though there is a detailed discussion in this behalf in the order of the Assessing Officer, our purpose would be served by taking note of the following portion of thevarious courts have observed that the following three conditions must exist before an activity could be brought under the concept of mutuality;that no person can earn from him;that there a profit motivation;and that there is no sharing of profit.It is noticed that the fund invested with bank which are not member of association welfare fund, and the interest has been earned on such investment for example, ING Mutual Fund [asMD vide his statement dated 20.12.2010]. [Though the bank formed the third partythe assessee entitled between contributor and recipient is lost in such case. The other ingredients of mutuality are also found to be missingas discussed infurther paragraphs]. In the present case both the parties to the transaction are the contributors towards surplus, however, there are no participators in the surpluses. There is no common consent of whatsoever for participators as their identity is not established. Hence, the assessee fails to satisfy the test of mutuality at the time of making the payments the number in referred as members may not be the member of the society as such the AOP body by the society is not covered by concept of mutuality at all.These are the findings of fact which have remained unshaken till the stage of the High Court. Once we keep the aforesaid aspects in mind, the conclusion is obvious, namely, the appellant cannot be treated as asociety meant only for its members and providing credit facilities to its members. We are afraid such a society cannot claim the benefit of Section 80P of the Act.
|
SURESHCHANDRA BAGMAL DOSHI Vs. THE NEW INDIA ASSURANCE CO. LTD | the loss of dependency or the future economic loss at Rs.8,000 per month and thereafter a multiplier of 16 was applied. The Tribunal, thus, awarded a sum of Rs.15,36,000 towards loss of dependency benefit; Rs.15,000 towards conventional amount under the head loss of estate; Rs.15,000 towards loss of love and affection and Rs.5,000 towards funeral expenses totaling to Rs.15,71,000 in terms of an award dated 29.3.2007. The claimants were also held entitled to interest @ 12 per cent per annum on the award amount from the date of application till realization. 5. Both the sides were aggrieved by the assessment of this claim and filed appeals before the High Court, which modified the award of the Tribunal vide impugned judgment dated 9.2.2015, which is subject matter of the present appeal. 6. The High Court declined to accept the future income rise as 100 per cent and took the same as 50 per cent in view of the judgment of this Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. 1 The High Court, considering that the claimants were the parents of the deceased, deducted 50 per cent towards personal expenses instead of 1/3 rd of the amount, as per the Tribunal. In fact, a reading of the order shows that these were the only two pleas advanced on behalf of the insurance company on which the appeal of the insurance company succeeded. 7. The High Court, however, fixed the multiplier at 18 instead of 16 as fixed by the Tribunal, as the deceased was aged about 25 years, and that would have been the appropriate multiplier as per Sarla Verma 2 . The High Court also examined the two other pleased made on behalf of the claimants, i.e., that the award of Rs.15,000 for loss of estate and Rs.15,000 for loss of love and affection was inadequate. 8. In view of what the High Court held as aforesaid, the amount was computed at Rs.10,72,360 with a sum of Rs.50,000 being awarded under the head of loss of estate as well as loss of love and affection instead of Rs.30,000 as awarded by the Tribunal and Rs.5,000 towards funeral expenses. The interest awarded was also upheld. 1 9. The claimants alone are the appellants before us. 10. On having heard the learned counsel for the parties and having examined the record, we may note that the parties are ad idem on the assessment of the income of the deceased at Rs.6,273 per month. The question, thus, is whether the Tribunal was right in increasing the amount for future rise in income by 100 per cent, or the High Court was within its right to reduce the said amount to 50 per cent. 11. We have the benefit of the Constitution Bench judgment of this Court in National Insurance Company Limited v. Pranay Sethi & Ors. 3 . While examining the observations in Sarla Verma 4 , the Constitution Bench gave its imprimatur to the addition of 50 per cent to actual salary of the deceased towards future prospects where the deceased had a permanent job and was below the age of 40 years, as in the present case. However, learned counsel for the appellant has brought to our notice a recent order passed by this Court in SLP (C) No.22134/2016 and other connected matters dated 22.11.2017 wherein while taking note of the views expressed by National Insurance Company Limited 5 , it has been observed that the percentage for calculating future rise in income is no bar to future prospects being taken at a higher level where the assessment is based on actual evidence led to the satisfaction of the Tribunal/the Court that the future prospects were higher than the standard percentage. Learned counsel, thus, submitted in the context of the evidence led in the present case that the two certificates dated 16.10.1998 and 8.7.2005 were proved in terms whereof the deceaseds future prospects would have entitled her to a gross salary in the range of Rs.14,000 to Rs. 17,000 per month. No doubt the second certificate is dated 8.7.2005, after a lapse of 7 years from the first certificate, but then that would be a more realistic estimate of what a person holding that post would be earning at that stage of time. There is no rebuttal evidence led by the insurance company and we see no reason to doubt these certificates. Thus, the assessment of the Tribunal is based on the evidence led in the present case. As noticed above, the standardized percentage is capable of being varied if the evidence is so led. 12. We are, thus, of the view that looking into the conspectus of the aforesaid facts and the legal position, the Tribunal was justified in giving a 100 per cent increase and taking the future prospects at Rs.12,000 per month. 13. The second aspect relates to the percentage of deduction. It really could not be seriously disputed before us that considering that the deceased is survived by the two parents, 50 per cent amount be deducted as personal and living expenses of the deceased when the deceased is unmarried or widowed, as in the present case in view of the judgment in National Insurance Company Limited 6 , which has affirmed the position in Sarla Verma 7 . Thus, the High Court was justified in increasing the percentage of personal expenses to the extent of 50 per cent and not 1/3 rd as held by the Tribunal. 14. Now coming to the last aspect, i.e., the conventional heads, in National Insurance Company Limited 8 , it has been standardized at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, whichas per the said judgment is capable of being enhanced @ 10 per cent in the span of every three years. However, we are still within the window of three years. | 1[ds]No doubt the second certificate is dated 8.7.2005, after a lapse of 7 years from the first certificate, but then that would be a more realistic estimate of what a person holding that post would be earning at that stage of time. There is no rebuttal evidence led by the insurance company and we see no reason to doubt these certificates. Thus, the assessment of the Tribunal is based on the evidence led in the present case. As noticed above, the standardized percentage is capable of being varied if the evidence is so led12. We are, thus, of the view that looking into the conspectus of theaforesaid facts and the legal position, the Tribunal was justified in giving a 100 per cent increase and taking the future prospects at Rs.12,000 per month13. The second aspect relates to the percentage of deduction. It really could not be seriously disputed before us that considering that the deceased is survived by the two parents, 50 per cent amount be deducted as personal and living expenses of the deceased when the deceased is unmarried or widowed, as in the present case in view of the judgment in National Insurance Company Limited 6 , which has affirmed the position in Sarla Verma 7 . Thus, the High Court was justified in increasing the percentage of personal expenses to the extent of 50 per cent and not 1/3 rd as held by the Tribunal14. Now coming to the last aspect, i.e., the conventional heads, in National Insurance Company Limited 8 , it has been standardized at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, whichas per the said judgment is capable of being enhanced @ 10 per cent in the span of every three years. However, we are still within the window of three years. | 1 | 1,464 | 356 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the loss of dependency or the future economic loss at Rs.8,000 per month and thereafter a multiplier of 16 was applied. The Tribunal, thus, awarded a sum of Rs.15,36,000 towards loss of dependency benefit; Rs.15,000 towards conventional amount under the head loss of estate; Rs.15,000 towards loss of love and affection and Rs.5,000 towards funeral expenses totaling to Rs.15,71,000 in terms of an award dated 29.3.2007. The claimants were also held entitled to interest @ 12 per cent per annum on the award amount from the date of application till realization. 5. Both the sides were aggrieved by the assessment of this claim and filed appeals before the High Court, which modified the award of the Tribunal vide impugned judgment dated 9.2.2015, which is subject matter of the present appeal. 6. The High Court declined to accept the future income rise as 100 per cent and took the same as 50 per cent in view of the judgment of this Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. 1 The High Court, considering that the claimants were the parents of the deceased, deducted 50 per cent towards personal expenses instead of 1/3 rd of the amount, as per the Tribunal. In fact, a reading of the order shows that these were the only two pleas advanced on behalf of the insurance company on which the appeal of the insurance company succeeded. 7. The High Court, however, fixed the multiplier at 18 instead of 16 as fixed by the Tribunal, as the deceased was aged about 25 years, and that would have been the appropriate multiplier as per Sarla Verma 2 . The High Court also examined the two other pleased made on behalf of the claimants, i.e., that the award of Rs.15,000 for loss of estate and Rs.15,000 for loss of love and affection was inadequate. 8. In view of what the High Court held as aforesaid, the amount was computed at Rs.10,72,360 with a sum of Rs.50,000 being awarded under the head of loss of estate as well as loss of love and affection instead of Rs.30,000 as awarded by the Tribunal and Rs.5,000 towards funeral expenses. The interest awarded was also upheld. 1 9. The claimants alone are the appellants before us. 10. On having heard the learned counsel for the parties and having examined the record, we may note that the parties are ad idem on the assessment of the income of the deceased at Rs.6,273 per month. The question, thus, is whether the Tribunal was right in increasing the amount for future rise in income by 100 per cent, or the High Court was within its right to reduce the said amount to 50 per cent. 11. We have the benefit of the Constitution Bench judgment of this Court in National Insurance Company Limited v. Pranay Sethi & Ors. 3 . While examining the observations in Sarla Verma 4 , the Constitution Bench gave its imprimatur to the addition of 50 per cent to actual salary of the deceased towards future prospects where the deceased had a permanent job and was below the age of 40 years, as in the present case. However, learned counsel for the appellant has brought to our notice a recent order passed by this Court in SLP (C) No.22134/2016 and other connected matters dated 22.11.2017 wherein while taking note of the views expressed by National Insurance Company Limited 5 , it has been observed that the percentage for calculating future rise in income is no bar to future prospects being taken at a higher level where the assessment is based on actual evidence led to the satisfaction of the Tribunal/the Court that the future prospects were higher than the standard percentage. Learned counsel, thus, submitted in the context of the evidence led in the present case that the two certificates dated 16.10.1998 and 8.7.2005 were proved in terms whereof the deceaseds future prospects would have entitled her to a gross salary in the range of Rs.14,000 to Rs. 17,000 per month. No doubt the second certificate is dated 8.7.2005, after a lapse of 7 years from the first certificate, but then that would be a more realistic estimate of what a person holding that post would be earning at that stage of time. There is no rebuttal evidence led by the insurance company and we see no reason to doubt these certificates. Thus, the assessment of the Tribunal is based on the evidence led in the present case. As noticed above, the standardized percentage is capable of being varied if the evidence is so led. 12. We are, thus, of the view that looking into the conspectus of the aforesaid facts and the legal position, the Tribunal was justified in giving a 100 per cent increase and taking the future prospects at Rs.12,000 per month. 13. The second aspect relates to the percentage of deduction. It really could not be seriously disputed before us that considering that the deceased is survived by the two parents, 50 per cent amount be deducted as personal and living expenses of the deceased when the deceased is unmarried or widowed, as in the present case in view of the judgment in National Insurance Company Limited 6 , which has affirmed the position in Sarla Verma 7 . Thus, the High Court was justified in increasing the percentage of personal expenses to the extent of 50 per cent and not 1/3 rd as held by the Tribunal. 14. Now coming to the last aspect, i.e., the conventional heads, in National Insurance Company Limited 8 , it has been standardized at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, whichas per the said judgment is capable of being enhanced @ 10 per cent in the span of every three years. However, we are still within the window of three years.
### Response:
1
### Explanation:
No doubt the second certificate is dated 8.7.2005, after a lapse of 7 years from the first certificate, but then that would be a more realistic estimate of what a person holding that post would be earning at that stage of time. There is no rebuttal evidence led by the insurance company and we see no reason to doubt these certificates. Thus, the assessment of the Tribunal is based on the evidence led in the present case. As noticed above, the standardized percentage is capable of being varied if the evidence is so led12. We are, thus, of the view that looking into the conspectus of theaforesaid facts and the legal position, the Tribunal was justified in giving a 100 per cent increase and taking the future prospects at Rs.12,000 per month13. The second aspect relates to the percentage of deduction. It really could not be seriously disputed before us that considering that the deceased is survived by the two parents, 50 per cent amount be deducted as personal and living expenses of the deceased when the deceased is unmarried or widowed, as in the present case in view of the judgment in National Insurance Company Limited 6 , which has affirmed the position in Sarla Verma 7 . Thus, the High Court was justified in increasing the percentage of personal expenses to the extent of 50 per cent and not 1/3 rd as held by the Tribunal14. Now coming to the last aspect, i.e., the conventional heads, in National Insurance Company Limited 8 , it has been standardized at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, whichas per the said judgment is capable of being enhanced @ 10 per cent in the span of every three years. However, we are still within the window of three years.
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Commissioner of Income Tax, West Bengal Vs. Durga Prasad More | were on that account liable to be taxed as income of the assessee in the assessment year 1948. The order of the Income-tax Officer was affirmed by the Appellate Assistant Commissioner. He observed"As the assessee has failed to discharge the onus of proving satisfactorily that the remittances formed really a part of the cash balance as shown in the Calcutta account, the Income-tax Officer was perfectly justified in treating the sum of Rs. 2, 20, 000 as income from undisclosed source. "3. In appeal to the Tribunal, the order passed by the Appellate Assistant Commissioner was confirmed, after rejecting the case of the assessee that the amount of Rs. 2, 20, 000 was part of the cash balance on hand. The Tribunal recorded its conclusion as follows:" In these circumstances we agree with the department in holding that the assessee has failed to prove the source of the money from which he made the remittances under consideration. The amount has been rightly held to be an income from some undisclosed sources. "In the opinion of the High Court the Tribunal had " ample justification in holding " that the receipt of Rs. 2, 20, 000 was " profit from undisclosed source ". But the High Court proceeded to observe that there was no evidence in support of the finding that the money represented " profit from an undisclosed business activity in British India, " and on that view they recorded an answer in the negative on the first question. They observed:"Applying these principles to the instant case, we find there is ample justification for the income-tax authorities to reject the assessees explanation as unsatisfactory and to hold that the said receipt of Rs. 2, 20, 000 is a profit from undisclosed source. But, unfortunately, the Income-tax Officer, after rejecting the assessees explanation, has come to the conclusion that the said amount is profit from business activity in British India, a finding which cannot be warranted without some evidence or information adduced by the department. The assesssee was a resident of India and it was the statutory duty of the assessee to disclose his total world income, and, accordingly, the alleged receipt might have been income at Nawalgarh, or at some other place outside British India. The Appellate Assistant Commissioner and the Appellate Tribunal have confirmed the order of the Income-tax Officer, but they have in their order described the said sum as income from undisclosed sources. The very fact that they have confirmed the order of the Income-tax Officer shows that they have meant that this undisclosed source relates to the assessees business activity in British India. If their objects are to reverse the finding of the Income-tax Officer on this point their orders could have been sustained inasmuch as the assessee is a resident of India and his income from undisclosed source, whether earned in India or outside, is taxable in India. There is no dispute as to the fact that the said sum of Rs. 2, 20, 000 has been remitted from Nawalgarh to Calcutta. The explanation offered by the assessee to the effect that the said sum was a part of the cash balance of the Calcutta business in November, 1941, has been rejected, and rightly so, for the reasons stated earlier. The result of the rejection is that the money never went from Calcutta to Nawalgarh. The only conclusion in such a case is that the money represents profit from undisclosed source. But that is not the finding which the Income-tax Officer has arrived at. The rejection of the assessees explanation does not necessarily follow that the particular receipt is an income from undisclosed business activity in British India. "But the Tribunal did not record a finding that the income was " from some undisclosed business activity in British India of the assessee. " The assumption made by the High Court that the Tribunal held that the income was from some undisclosed business activity in British India was not warranted4. Again, the total income of the assesse was liable to be charged to tax at the rates in force under the appropriate Finance Act. According to the Income-tax Act then in force, the total income of the previous year of an assessee, who was resident in British India, included all income, profits and gains during such year which accrued or arose or were deemed to accrue or arise to him in British India during such year. The assessee was resident and ordinarily resident in British India in the relevant previous year, and the income brought to tax had accrued or arisen to him in British India. That was so found by all the authorities and the High Court also agreed with that view. If the amount of Rs. 2, 20, 000 represented income of the assessee of the previous year, it was liable to be included in the total income of the assessee, and an enquiry whether for the purpose of bringing the amount to tax the income was from a business activity or from other source was not relevant. The principle laid down by this court in Commissioner of Income-tax v. M. Ganapathi Mudaliar that " once it is found that " a receipt by the assessee " was income of the assessee it was not necessary for the revenue to locate its exact source " applies in our judgment alike to cases in which an entry is found in the books of account of the assessee, and to cases in which no such entry is found. It was not the plea of the assessee that the demand drafts represented income, which was either wholly or in part not chargeable to tax : if he intended to rely upon that plea it was for him to prove such a plea. It was not even attempted to be argued before the Tribunal that the source of the income affected its exigibility to tax. We are, therefore, unable to uphold the answer recordered by the High Court | 1[ds]But the Tribunal did not record a finding that the income was " from some undisclosed business activity in British India of the assessee. " The assumption made by the High Court that the Tribunal held that the income was from some undisclosed business activity in British India was not warranted4. Again, the total income of the assesse was liable to be charged to tax at the rates in force under the appropriate Finance Act. According to theAct then in force, the total income of the previous year of an assessee, who was resident in British India, included all income, profits and gains during such year which accrued or arose or were deemed to accrue or arise to him in British India during such year. The assessee was resident and ordinarily resident in British India in the relevant previous year, and the income brought to tax had accrued or arisen to him in British India. That was so found by all the authorities and the High Court also agreed with that view. If the amount of Rs. 2, 20, 000 represented income of the assessee of the previous year, it was liable to be included in the total income of the assessee, and an enquiry whether for the purpose of bringing the amount to tax the income was from a business activity or from other source was not relevant. The principle laid down by this court in Commissioner ofv. M. Ganapathi Mudaliar that " once it is found that " a receipt by the assessee " was income of the assessee it was not necessary for the revenue to locate its exact source " applies in our judgment alike to cases in which an entry is found in the books of account of the assessee, and to cases in which no such entry is found. It was not the plea of the assessee that the demand drafts represented income, which was either wholly or in part not chargeable to tax : if he intended to rely upon that plea it was for him to prove such a plea. It was not even attempted to be argued before the Tribunal that the source of the income affected its exigibility to tax. We are, therefore, unable to uphold the answer recordered by the High Court | 1 | 1,611 | 412 | ### 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:
were on that account liable to be taxed as income of the assessee in the assessment year 1948. The order of the Income-tax Officer was affirmed by the Appellate Assistant Commissioner. He observed"As the assessee has failed to discharge the onus of proving satisfactorily that the remittances formed really a part of the cash balance as shown in the Calcutta account, the Income-tax Officer was perfectly justified in treating the sum of Rs. 2, 20, 000 as income from undisclosed source. "3. In appeal to the Tribunal, the order passed by the Appellate Assistant Commissioner was confirmed, after rejecting the case of the assessee that the amount of Rs. 2, 20, 000 was part of the cash balance on hand. The Tribunal recorded its conclusion as follows:" In these circumstances we agree with the department in holding that the assessee has failed to prove the source of the money from which he made the remittances under consideration. The amount has been rightly held to be an income from some undisclosed sources. "In the opinion of the High Court the Tribunal had " ample justification in holding " that the receipt of Rs. 2, 20, 000 was " profit from undisclosed source ". But the High Court proceeded to observe that there was no evidence in support of the finding that the money represented " profit from an undisclosed business activity in British India, " and on that view they recorded an answer in the negative on the first question. They observed:"Applying these principles to the instant case, we find there is ample justification for the income-tax authorities to reject the assessees explanation as unsatisfactory and to hold that the said receipt of Rs. 2, 20, 000 is a profit from undisclosed source. But, unfortunately, the Income-tax Officer, after rejecting the assessees explanation, has come to the conclusion that the said amount is profit from business activity in British India, a finding which cannot be warranted without some evidence or information adduced by the department. The assesssee was a resident of India and it was the statutory duty of the assessee to disclose his total world income, and, accordingly, the alleged receipt might have been income at Nawalgarh, or at some other place outside British India. The Appellate Assistant Commissioner and the Appellate Tribunal have confirmed the order of the Income-tax Officer, but they have in their order described the said sum as income from undisclosed sources. The very fact that they have confirmed the order of the Income-tax Officer shows that they have meant that this undisclosed source relates to the assessees business activity in British India. If their objects are to reverse the finding of the Income-tax Officer on this point their orders could have been sustained inasmuch as the assessee is a resident of India and his income from undisclosed source, whether earned in India or outside, is taxable in India. There is no dispute as to the fact that the said sum of Rs. 2, 20, 000 has been remitted from Nawalgarh to Calcutta. The explanation offered by the assessee to the effect that the said sum was a part of the cash balance of the Calcutta business in November, 1941, has been rejected, and rightly so, for the reasons stated earlier. The result of the rejection is that the money never went from Calcutta to Nawalgarh. The only conclusion in such a case is that the money represents profit from undisclosed source. But that is not the finding which the Income-tax Officer has arrived at. The rejection of the assessees explanation does not necessarily follow that the particular receipt is an income from undisclosed business activity in British India. "But the Tribunal did not record a finding that the income was " from some undisclosed business activity in British India of the assessee. " The assumption made by the High Court that the Tribunal held that the income was from some undisclosed business activity in British India was not warranted4. Again, the total income of the assesse was liable to be charged to tax at the rates in force under the appropriate Finance Act. According to the Income-tax Act then in force, the total income of the previous year of an assessee, who was resident in British India, included all income, profits and gains during such year which accrued or arose or were deemed to accrue or arise to him in British India during such year. The assessee was resident and ordinarily resident in British India in the relevant previous year, and the income brought to tax had accrued or arisen to him in British India. That was so found by all the authorities and the High Court also agreed with that view. If the amount of Rs. 2, 20, 000 represented income of the assessee of the previous year, it was liable to be included in the total income of the assessee, and an enquiry whether for the purpose of bringing the amount to tax the income was from a business activity or from other source was not relevant. The principle laid down by this court in Commissioner of Income-tax v. M. Ganapathi Mudaliar that " once it is found that " a receipt by the assessee " was income of the assessee it was not necessary for the revenue to locate its exact source " applies in our judgment alike to cases in which an entry is found in the books of account of the assessee, and to cases in which no such entry is found. It was not the plea of the assessee that the demand drafts represented income, which was either wholly or in part not chargeable to tax : if he intended to rely upon that plea it was for him to prove such a plea. It was not even attempted to be argued before the Tribunal that the source of the income affected its exigibility to tax. We are, therefore, unable to uphold the answer recordered by the High Court
### Response:
1
### Explanation:
But the Tribunal did not record a finding that the income was " from some undisclosed business activity in British India of the assessee. " The assumption made by the High Court that the Tribunal held that the income was from some undisclosed business activity in British India was not warranted4. Again, the total income of the assesse was liable to be charged to tax at the rates in force under the appropriate Finance Act. According to theAct then in force, the total income of the previous year of an assessee, who was resident in British India, included all income, profits and gains during such year which accrued or arose or were deemed to accrue or arise to him in British India during such year. The assessee was resident and ordinarily resident in British India in the relevant previous year, and the income brought to tax had accrued or arisen to him in British India. That was so found by all the authorities and the High Court also agreed with that view. If the amount of Rs. 2, 20, 000 represented income of the assessee of the previous year, it was liable to be included in the total income of the assessee, and an enquiry whether for the purpose of bringing the amount to tax the income was from a business activity or from other source was not relevant. The principle laid down by this court in Commissioner ofv. M. Ganapathi Mudaliar that " once it is found that " a receipt by the assessee " was income of the assessee it was not necessary for the revenue to locate its exact source " applies in our judgment alike to cases in which an entry is found in the books of account of the assessee, and to cases in which no such entry is found. It was not the plea of the assessee that the demand drafts represented income, which was either wholly or in part not chargeable to tax : if he intended to rely upon that plea it was for him to prove such a plea. It was not even attempted to be argued before the Tribunal that the source of the income affected its exigibility to tax. We are, therefore, unable to uphold the answer recordered by the High Court
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Hunsur Plywood Works Limited Vs. Commissioner of Income Tax | It cannot be said that by the issue of bonus shares, the Company had distributed its reserve fund to the shareholders even though it had retained the entire amount with it in the share capital account. 18. It must also be noted that while dealing with the question of valuation of bonus shares in the case of CIT v. Dalmia Investment Co. Ltd. Hidayatullah, J. (as His Lordship then was) after referring to Blott case ( 1921 (2) AC 171 : 1921 ALLER 810 preferred the view expressed by Viscounts Haldane, Finlay and Cave to the dissenting view taken by Lord Dunedin and Lord Sumner. Dealing with effect of issue of bonus shares, Hidayatullah, J. held that "the floating capital used in the Company which formerly consisted of subscribed capital and the a reserves now becomes the subscribed capital" of the Company. The certificates in the hands of the shareholders were property from which income will be derived in future. 19. Hidayatullah, J. in Dalmia case also quoted with approval a passage from a decision of the Supreme Court of United States, Eisner v. Macomber 252 US 189 : 64 L Ed 521 (1920). "A stock dividend really takes nothing from the property of the corporation, and adds nothing to the interests of the shareholders. Its property is not diminished, and their interests are not increased .... The proportional interest of each shareholder remains the same. The only change is in the evidence which represents that interest, the new shares and the original shares together representing the same proportional interest that the original shares represented before the issue of the new ones .... In short, the corporation is no poorer and the stockholder is no richer than they were before. ... If the plaintiff gained any small advantage by the change, it certainly was not an advantage of Pounds 417, 450 the sum upon which he was taxed. ... What has happened is that the plaintiffs old certificates have been split up in effect and have diminished in value to the extent of the value of the new." * 20. When a shareholder gets a bonus share the value of the original share held by him goes down. In effect, the shareholder gets two shares instead of the one share held by him and the market value as well as the intrinsic value of the two shares put together will be the same or nearly the same as the value of the original share before the bonus issue. 21. It appears from the various decisions cited hereinabove, that issuance of bonus shares does not amount to distribution of accumulated profit of a company. The shareholder derives some benefit by the process of capitalising of the accumulated profits but at the same time, the value of his original shareholding goes down. Viewed from any angle, it cannot be said that in this case, the assessee-Company had distributed any part of its development rebate reserve fund when it issued the bonus shares. The accumulated profit lying to the credit of the development rebate reserve has been retained by the Company. The amount has been transferred to the share capital account. If that was not done the intrinsic value of the shares held by the shareholders would have been more. After the issue of the bonus shares, the intrinsic value of the original shares have gone down rateably. The accumulated profits of the Company have remained with the Company in one account or another.22. On behalf of the Revenue, our attention was drawn to the judgment in the case of Leader Engineering Works v. CIT. That was a case of partnership firm. The amount standing to the credit of development rebate reserve account was debited and the capital accounts of the partners in the partnership account were correspondingly credited. It was held that the identity of the development rebate reserve account had completely disappeared. The amount standing to the credit of that reserve was placed at the disposal of the partners who were free to withdraw the same for their own purposes. In that case it was held that the transfer of the amount standing to the credit of the development rebate reserve in the individuals account of the partners amounted to distribution of profits. We fail to see how this decision helps the Revenue in the facts of this case. The shareholders are not entitled to draw any money from the share capital account of the Company. The money standing to the credit of the development rebate reserve is retained by the Company in another account. A shareholder cannot claim that any part of the share capital of the Company belongs to him or make use of it. 23. The question as to the substance of the transaction was also raised. The case, however, has to be decided on the basis of the language of the statute. There has been no distribution from the development rebate fund. The result might have been different had the statute been differently worded but we shall have to take the statute as it is and not in any other sense. Moreover, as was pointed out by Lord Sumner in Fisher case 1926 AC 395 : 95 LJ KB 487) that desires and intentions are things of which a company is incapable. These are the mental operations of its shareholders and officers. The only intention that the company has is such as is expressed in or necessarily follows from its proceedings. It is hardly a paradox to say that the form of a companys resolutions and instruments is their substance. 24. In this case, neither in form nor in substance, has there been any distribution of profits by the Company in making the bonus issue. If the substance and not the form of the transaction is looked to, the issue of bonus shares was, in the language of Rowlatt, J. (sic) "a bare machinery" for capitalising profits and there was no distribution of profits to the shareholders. | 1[ds]16. In our view, the principle stated by Lord Finlay really resolves the controversy raised in this case. The profits made by the Company may be distributed as dividends or retained by the Company as its reserve which may be used for improvement of the Companys works, buildings and machinery. That will enable the Company to make larger profits. There cannot be any dispute that the shareholders will benefit from the improvements brought about in the profit-making apparatus of the Company. Likewise, if the accumulated profits are capitalised and capital base of the Company is enlarged, this may enable the Company to do its business more profitably. The shareholders will also benefit if the share capital is increased. They may benefit immediately by issue of bonus shares. But neither in the case of improvement in the profit-making apparatus nor in the case of expansion of the share capital of the Company can it be said that the shareholders have received any money from the Company. They may have benefited in both the cases. But this benefit cannot be treated as distribution of the amount standing to the credit of any reserve fund of the Company to itsIn fact, the transfer of the amounts standing to the credit of development rebate reserve to the share capital account, does not involve any disbursement of money by the Company. Nothing comes out of the till of the Company to the shareholder. The entire amount of money shown as development rebate reserve is retained by the Company in another account. It cannot be said that by the issue of bonus shares, the Company had distributed its reserve fund to the shareholders even though it had retained the entire amount with it in the share capitalWhen a shareholder gets a bonus share the value of the original share held by him goes down. In effect, the shareholder gets two shares instead of the one share held by him and the market value as well as the intrinsic value of the two shares put together will be the same or nearly the same as the value of the original share before the bonusIt appears from the various decisions cited hereinabove, that issuance of bonus shares does not amount to distribution of accumulated profit of a company. The shareholder derives some benefit by the process of capitalising of the accumulated profits but at the same time, the value of his original shareholding goes down. Viewed from any angle, it cannot be said that in this case, the assessee-Company had distributed any part of its development rebate reserve fund when it issued the bonus shares. The accumulated profit lying to the credit of the development rebate reserve has been retained by the Company. The amount has been transferred to the share capital account. If that was not done the intrinsic value of the shares held by the shareholders would have been more. After the issue of the bonus shares, the intrinsic value of the original shares have gone down rateably. The accumulated profits of the Company have remained with the Company in one account orIn this case, neither in form nor in substance, has there been any distribution of profits by the Company in making the bonus issue. If the substance and not the form of the transaction is looked to, the issue of bonus shares was, in the language of Rowlatt, J. (sic) "a bare machinery" for capitalising profits and there was no distribution of profits to the shareholders | 1 | 3,268 | 635 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
It cannot be said that by the issue of bonus shares, the Company had distributed its reserve fund to the shareholders even though it had retained the entire amount with it in the share capital account. 18. It must also be noted that while dealing with the question of valuation of bonus shares in the case of CIT v. Dalmia Investment Co. Ltd. Hidayatullah, J. (as His Lordship then was) after referring to Blott case ( 1921 (2) AC 171 : 1921 ALLER 810 preferred the view expressed by Viscounts Haldane, Finlay and Cave to the dissenting view taken by Lord Dunedin and Lord Sumner. Dealing with effect of issue of bonus shares, Hidayatullah, J. held that "the floating capital used in the Company which formerly consisted of subscribed capital and the a reserves now becomes the subscribed capital" of the Company. The certificates in the hands of the shareholders were property from which income will be derived in future. 19. Hidayatullah, J. in Dalmia case also quoted with approval a passage from a decision of the Supreme Court of United States, Eisner v. Macomber 252 US 189 : 64 L Ed 521 (1920). "A stock dividend really takes nothing from the property of the corporation, and adds nothing to the interests of the shareholders. Its property is not diminished, and their interests are not increased .... The proportional interest of each shareholder remains the same. The only change is in the evidence which represents that interest, the new shares and the original shares together representing the same proportional interest that the original shares represented before the issue of the new ones .... In short, the corporation is no poorer and the stockholder is no richer than they were before. ... If the plaintiff gained any small advantage by the change, it certainly was not an advantage of Pounds 417, 450 the sum upon which he was taxed. ... What has happened is that the plaintiffs old certificates have been split up in effect and have diminished in value to the extent of the value of the new." * 20. When a shareholder gets a bonus share the value of the original share held by him goes down. In effect, the shareholder gets two shares instead of the one share held by him and the market value as well as the intrinsic value of the two shares put together will be the same or nearly the same as the value of the original share before the bonus issue. 21. It appears from the various decisions cited hereinabove, that issuance of bonus shares does not amount to distribution of accumulated profit of a company. The shareholder derives some benefit by the process of capitalising of the accumulated profits but at the same time, the value of his original shareholding goes down. Viewed from any angle, it cannot be said that in this case, the assessee-Company had distributed any part of its development rebate reserve fund when it issued the bonus shares. The accumulated profit lying to the credit of the development rebate reserve has been retained by the Company. The amount has been transferred to the share capital account. If that was not done the intrinsic value of the shares held by the shareholders would have been more. After the issue of the bonus shares, the intrinsic value of the original shares have gone down rateably. The accumulated profits of the Company have remained with the Company in one account or another.22. On behalf of the Revenue, our attention was drawn to the judgment in the case of Leader Engineering Works v. CIT. That was a case of partnership firm. The amount standing to the credit of development rebate reserve account was debited and the capital accounts of the partners in the partnership account were correspondingly credited. It was held that the identity of the development rebate reserve account had completely disappeared. The amount standing to the credit of that reserve was placed at the disposal of the partners who were free to withdraw the same for their own purposes. In that case it was held that the transfer of the amount standing to the credit of the development rebate reserve in the individuals account of the partners amounted to distribution of profits. We fail to see how this decision helps the Revenue in the facts of this case. The shareholders are not entitled to draw any money from the share capital account of the Company. The money standing to the credit of the development rebate reserve is retained by the Company in another account. A shareholder cannot claim that any part of the share capital of the Company belongs to him or make use of it. 23. The question as to the substance of the transaction was also raised. The case, however, has to be decided on the basis of the language of the statute. There has been no distribution from the development rebate fund. The result might have been different had the statute been differently worded but we shall have to take the statute as it is and not in any other sense. Moreover, as was pointed out by Lord Sumner in Fisher case 1926 AC 395 : 95 LJ KB 487) that desires and intentions are things of which a company is incapable. These are the mental operations of its shareholders and officers. The only intention that the company has is such as is expressed in or necessarily follows from its proceedings. It is hardly a paradox to say that the form of a companys resolutions and instruments is their substance. 24. In this case, neither in form nor in substance, has there been any distribution of profits by the Company in making the bonus issue. If the substance and not the form of the transaction is looked to, the issue of bonus shares was, in the language of Rowlatt, J. (sic) "a bare machinery" for capitalising profits and there was no distribution of profits to the shareholders.
### Response:
1
### Explanation:
16. In our view, the principle stated by Lord Finlay really resolves the controversy raised in this case. The profits made by the Company may be distributed as dividends or retained by the Company as its reserve which may be used for improvement of the Companys works, buildings and machinery. That will enable the Company to make larger profits. There cannot be any dispute that the shareholders will benefit from the improvements brought about in the profit-making apparatus of the Company. Likewise, if the accumulated profits are capitalised and capital base of the Company is enlarged, this may enable the Company to do its business more profitably. The shareholders will also benefit if the share capital is increased. They may benefit immediately by issue of bonus shares. But neither in the case of improvement in the profit-making apparatus nor in the case of expansion of the share capital of the Company can it be said that the shareholders have received any money from the Company. They may have benefited in both the cases. But this benefit cannot be treated as distribution of the amount standing to the credit of any reserve fund of the Company to itsIn fact, the transfer of the amounts standing to the credit of development rebate reserve to the share capital account, does not involve any disbursement of money by the Company. Nothing comes out of the till of the Company to the shareholder. The entire amount of money shown as development rebate reserve is retained by the Company in another account. It cannot be said that by the issue of bonus shares, the Company had distributed its reserve fund to the shareholders even though it had retained the entire amount with it in the share capitalWhen a shareholder gets a bonus share the value of the original share held by him goes down. In effect, the shareholder gets two shares instead of the one share held by him and the market value as well as the intrinsic value of the two shares put together will be the same or nearly the same as the value of the original share before the bonusIt appears from the various decisions cited hereinabove, that issuance of bonus shares does not amount to distribution of accumulated profit of a company. The shareholder derives some benefit by the process of capitalising of the accumulated profits but at the same time, the value of his original shareholding goes down. Viewed from any angle, it cannot be said that in this case, the assessee-Company had distributed any part of its development rebate reserve fund when it issued the bonus shares. The accumulated profit lying to the credit of the development rebate reserve has been retained by the Company. The amount has been transferred to the share capital account. If that was not done the intrinsic value of the shares held by the shareholders would have been more. After the issue of the bonus shares, the intrinsic value of the original shares have gone down rateably. The accumulated profits of the Company have remained with the Company in one account orIn this case, neither in form nor in substance, has there been any distribution of profits by the Company in making the bonus issue. If the substance and not the form of the transaction is looked to, the issue of bonus shares was, in the language of Rowlatt, J. (sic) "a bare machinery" for capitalising profits and there was no distribution of profits to the shareholders
|
State of Uttarakhand & Anr Vs. Mayan Pal Singh Verma | hearing. Heard Mr. Pradeep Joshi, learned Standing Counsel for the appellant. In this case, the petitioner has assailed the order passed by the Uttarakhand Public Service Tribunal, Dehradun in Claim Petition No. 104/DB/2009 directing the opposite party to ignore the uncommunicated Uttam entries in the ACRs while considering the case of the private respondent for his promotion to the post of the Chief Engineer level--2 by the reviewed ACP. It is further directed that the respondent-Department may hold the reviewed ACP within three months from the date representation of the certified copy of this order. This Order has been passed on 15th September, 2021 till then no review ACP has been constituted. Let that order passed by the Tribunal be complied within 21 days from today. With such observation, the writ application is disposed of. 2.1 From the writ petition produced on record, it appears that the order passed by the Tribunal was challenged on a number of grounds. None of the grounds raised in the writ petition has been dealt with and/or considered by the High Court on merits. There is no discussion at all on any of the grounds raised in the writ petition. The Division Bench of the High Court has disposed of the writ petition in a most cavalier and cursory manner, which is unsustainable. The High Court has disposed of the writ petition without deciding the writ petition on merits and has directed the Department to comply with the order passed by the Tribunal solely by observing that the order has been passed on 15th September, 2021 and till date no review ACP has been constituted. However, the High Court ought to have noted that the order passed by the Tribunal was under challenge before it and therefore, the High Court was required to decide and dispose of the writ petition on merits and consider the legality and correctness of the order passed by the Tribunal. 2.2 The manner in which the High Court has dealt with and disposed of the writ petition without deciding the writ petition on merits cannot be appreciated at all. When a number of issues/grounds were raised in the writ petition, there was the duty cast upon the High Court to deal with the same and thereafter, to pass a reasoned order. In the recent decision in the case of Vishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Circle 25(3) & Ors. (Civil Appeal No. 2200/2022), it was observed by this Court that when the Constitution confers on the High Courts the power to give relief, it becomes the duty of the High Courts to give such relief in appropriate cases and the High Courts would be failing to perform its duty if relief is refused without adequate reasons. It is further observed that in this case, the High Court in exercise of powers under Article 226 of the Constitution of India was required to have independently considered the legality and validity of the order passed by the Tribunal which was under challenge before it. Neither any submission on merits is recorded nor is there any discussion on the merits of the matter on the order passed by the Tribunal. There is no application of mind at all by the High Court on merits of the order passed by the Tribunal. It can be seen that the High Court has failed to exercise its jurisdiction vested in it while exercising the powers under Article 226/227 of the Constitution of India. 2.3 While emphasising the necessity to pass a reasoned order, in the case of Central Board of Trustees Vs. Indore Composite Private Limited, (2018) 8 SCC 443, it was observed and held by this Court that the courts need to pass a reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion. It was further observed in the said decision that an order bereft of reasoning causes prejudice to the parties because it deprives them to know the reasons as to why one party has won and other has lost. 2.4 In a recent decision in the case of Union Public Service Commission Vs. Bibhu Prasad Sarangi and Ors., (2021) 4 SCC 516, while emphasising that reasons ought to be given by the High Court while exercising powers under Article 226 of the Constitution of India, it was observed and held by this Court that the reasons constitute the soul of judicial decision and how Judges communicate in their judgment is a defining characteristic of judicial process since quality of justice brings legitimacy to the judiciary. It is further observed that though statistics of disposal of cases is important, of a higher value, is the intrinsic content and of a quality judgment. It is further observed that in exercise of powers under Article 226 the courts require to independently consider the issues involved. 3. Applying the law laid by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has disposed of the writ petition, in the interest of sobriety, we may only note that the order is bereft of reasoning as diverse grounds were urged/raised by the parties which ought to have been examined by the High Court in the first place and a clear finding was required to be recorded upon analysing the relevant documents. 4. Since we cannot countenance the manner in which the order has been passed by the High Court which has compelled us to remand the matter to the High Court for deciding the writ petition afresh on merits, we do so in light of the aforesaid observations. | 1[ds]2.1 From the writ petition produced on record, it appears that the order passed by the Tribunal was challenged on a number of grounds. None of the grounds raised in the writ petition has been dealt with and/or considered by the High Court on merits. There is no discussion at all on any of the grounds raised in the writ petition. The Division Bench of the High Court has disposed of the writ petition in a most cavalier and cursory manner, which is unsustainable. The High Court has disposed of the writ petition without deciding the writ petition on merits and has directed the Department to comply with the order passed by the Tribunal solely by observing that the order has been passed on 15th September, 2021 and till date no review ACP has been constituted. However, the High Court ought to have noted that the order passed by the Tribunal was under challenge before it and therefore, the High Court was required to decide and dispose of the writ petition on merits and consider the legality and correctness of the order passed by the Tribunal.2.2 The manner in which the High Court has dealt with and disposed of the writ petition without deciding the writ petition on merits cannot be appreciated at all. When a number of issues/grounds were raised in the writ petition, there was the duty cast upon the High Court to deal with the same and thereafter, to pass a reasoned order. In the recent decision in the case of Vishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Circle 25(3) & Ors. (Civil Appeal No. 2200/2022), it was observed by this Court that when the Constitution confers on the High Courts the power to give relief, it becomes the duty of the High Courts to give such relief in appropriate cases and the High Courts would be failing to perform its duty if relief is refused without adequate reasons. It is further observed that in this case, the High Court in exercise of powers under Article 226 of the Constitution of India was required to have independently considered the legality and validity of the order passed by the Tribunal which was under challenge before it. Neither any submission on merits is recorded nor is there any discussion on the merits of the matter on the order passed by the Tribunal. There is no application of mind at all by the High Court on merits of the order passed by the Tribunal. It can be seen that the High Court has failed to exercise its jurisdiction vested in it while exercising the powers under Article 226/227 of the Constitution of India.2.3 While emphasising the necessity to pass a reasoned order, in the case of Central Board of Trustees Vs. Indore Composite Private Limited, (2018) 8 SCC 443, it was observed and held by this Court that the courts need to pass a reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion. It was further observed in the said decision that an order bereft of reasoning causes prejudice to the parties because it deprives them to know the reasons as to why one party has won and other has lost.2.4 In a recent decision in the case of Union Public Service Commission Vs. Bibhu Prasad Sarangi and Ors., (2021) 4 SCC 516, while emphasising that reasons ought to be given by the High Court while exercising powers under Article 226 of the Constitution of India, it was observed and held by this Court that the reasons constitute the soul of judicial decision and how Judges communicate in their judgment is a defining characteristic of judicial process since quality of justice brings legitimacy to the judiciary. It is further observed that though statistics of disposal of cases is important, of a higher value, is the intrinsic content and of a quality judgment. It is further observed that in exercise of powers under Article 226 the courts require to independently consider the issues involved.3. Applying the law laid by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has disposed of the writ petition, in the interest of sobriety, we may only note that the order is bereft of reasoning as diverse grounds were urged/raised by the parties which ought to have been examined by the High Court in the first place and a clear finding was required to be recorded upon analysing the relevant documents.4. Since we cannot countenance the manner in which the order has been passed by the High Court which has compelled us to remand the matter to the High Court for deciding the writ petition afresh on merits, we do so in light of the aforesaid observations. | 1 | 1,364 | 918 | ### Instruction:
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hearing. Heard Mr. Pradeep Joshi, learned Standing Counsel for the appellant. In this case, the petitioner has assailed the order passed by the Uttarakhand Public Service Tribunal, Dehradun in Claim Petition No. 104/DB/2009 directing the opposite party to ignore the uncommunicated Uttam entries in the ACRs while considering the case of the private respondent for his promotion to the post of the Chief Engineer level--2 by the reviewed ACP. It is further directed that the respondent-Department may hold the reviewed ACP within three months from the date representation of the certified copy of this order. This Order has been passed on 15th September, 2021 till then no review ACP has been constituted. Let that order passed by the Tribunal be complied within 21 days from today. With such observation, the writ application is disposed of. 2.1 From the writ petition produced on record, it appears that the order passed by the Tribunal was challenged on a number of grounds. None of the grounds raised in the writ petition has been dealt with and/or considered by the High Court on merits. There is no discussion at all on any of the grounds raised in the writ petition. The Division Bench of the High Court has disposed of the writ petition in a most cavalier and cursory manner, which is unsustainable. The High Court has disposed of the writ petition without deciding the writ petition on merits and has directed the Department to comply with the order passed by the Tribunal solely by observing that the order has been passed on 15th September, 2021 and till date no review ACP has been constituted. However, the High Court ought to have noted that the order passed by the Tribunal was under challenge before it and therefore, the High Court was required to decide and dispose of the writ petition on merits and consider the legality and correctness of the order passed by the Tribunal. 2.2 The manner in which the High Court has dealt with and disposed of the writ petition without deciding the writ petition on merits cannot be appreciated at all. When a number of issues/grounds were raised in the writ petition, there was the duty cast upon the High Court to deal with the same and thereafter, to pass a reasoned order. In the recent decision in the case of Vishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Circle 25(3) & Ors. (Civil Appeal No. 2200/2022), it was observed by this Court that when the Constitution confers on the High Courts the power to give relief, it becomes the duty of the High Courts to give such relief in appropriate cases and the High Courts would be failing to perform its duty if relief is refused without adequate reasons. It is further observed that in this case, the High Court in exercise of powers under Article 226 of the Constitution of India was required to have independently considered the legality and validity of the order passed by the Tribunal which was under challenge before it. Neither any submission on merits is recorded nor is there any discussion on the merits of the matter on the order passed by the Tribunal. There is no application of mind at all by the High Court on merits of the order passed by the Tribunal. It can be seen that the High Court has failed to exercise its jurisdiction vested in it while exercising the powers under Article 226/227 of the Constitution of India. 2.3 While emphasising the necessity to pass a reasoned order, in the case of Central Board of Trustees Vs. Indore Composite Private Limited, (2018) 8 SCC 443, it was observed and held by this Court that the courts need to pass a reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion. It was further observed in the said decision that an order bereft of reasoning causes prejudice to the parties because it deprives them to know the reasons as to why one party has won and other has lost. 2.4 In a recent decision in the case of Union Public Service Commission Vs. Bibhu Prasad Sarangi and Ors., (2021) 4 SCC 516, while emphasising that reasons ought to be given by the High Court while exercising powers under Article 226 of the Constitution of India, it was observed and held by this Court that the reasons constitute the soul of judicial decision and how Judges communicate in their judgment is a defining characteristic of judicial process since quality of justice brings legitimacy to the judiciary. It is further observed that though statistics of disposal of cases is important, of a higher value, is the intrinsic content and of a quality judgment. It is further observed that in exercise of powers under Article 226 the courts require to independently consider the issues involved. 3. Applying the law laid by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has disposed of the writ petition, in the interest of sobriety, we may only note that the order is bereft of reasoning as diverse grounds were urged/raised by the parties which ought to have been examined by the High Court in the first place and a clear finding was required to be recorded upon analysing the relevant documents. 4. Since we cannot countenance the manner in which the order has been passed by the High Court which has compelled us to remand the matter to the High Court for deciding the writ petition afresh on merits, we do so in light of the aforesaid observations.
### Response:
1
### Explanation:
2.1 From the writ petition produced on record, it appears that the order passed by the Tribunal was challenged on a number of grounds. None of the grounds raised in the writ petition has been dealt with and/or considered by the High Court on merits. There is no discussion at all on any of the grounds raised in the writ petition. The Division Bench of the High Court has disposed of the writ petition in a most cavalier and cursory manner, which is unsustainable. The High Court has disposed of the writ petition without deciding the writ petition on merits and has directed the Department to comply with the order passed by the Tribunal solely by observing that the order has been passed on 15th September, 2021 and till date no review ACP has been constituted. However, the High Court ought to have noted that the order passed by the Tribunal was under challenge before it and therefore, the High Court was required to decide and dispose of the writ petition on merits and consider the legality and correctness of the order passed by the Tribunal.2.2 The manner in which the High Court has dealt with and disposed of the writ petition without deciding the writ petition on merits cannot be appreciated at all. When a number of issues/grounds were raised in the writ petition, there was the duty cast upon the High Court to deal with the same and thereafter, to pass a reasoned order. In the recent decision in the case of Vishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Circle 25(3) & Ors. (Civil Appeal No. 2200/2022), it was observed by this Court that when the Constitution confers on the High Courts the power to give relief, it becomes the duty of the High Courts to give such relief in appropriate cases and the High Courts would be failing to perform its duty if relief is refused without adequate reasons. It is further observed that in this case, the High Court in exercise of powers under Article 226 of the Constitution of India was required to have independently considered the legality and validity of the order passed by the Tribunal which was under challenge before it. Neither any submission on merits is recorded nor is there any discussion on the merits of the matter on the order passed by the Tribunal. There is no application of mind at all by the High Court on merits of the order passed by the Tribunal. It can be seen that the High Court has failed to exercise its jurisdiction vested in it while exercising the powers under Article 226/227 of the Constitution of India.2.3 While emphasising the necessity to pass a reasoned order, in the case of Central Board of Trustees Vs. Indore Composite Private Limited, (2018) 8 SCC 443, it was observed and held by this Court that the courts need to pass a reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion. It was further observed in the said decision that an order bereft of reasoning causes prejudice to the parties because it deprives them to know the reasons as to why one party has won and other has lost.2.4 In a recent decision in the case of Union Public Service Commission Vs. Bibhu Prasad Sarangi and Ors., (2021) 4 SCC 516, while emphasising that reasons ought to be given by the High Court while exercising powers under Article 226 of the Constitution of India, it was observed and held by this Court that the reasons constitute the soul of judicial decision and how Judges communicate in their judgment is a defining characteristic of judicial process since quality of justice brings legitimacy to the judiciary. It is further observed that though statistics of disposal of cases is important, of a higher value, is the intrinsic content and of a quality judgment. It is further observed that in exercise of powers under Article 226 the courts require to independently consider the issues involved.3. Applying the law laid by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has disposed of the writ petition, in the interest of sobriety, we may only note that the order is bereft of reasoning as diverse grounds were urged/raised by the parties which ought to have been examined by the High Court in the first place and a clear finding was required to be recorded upon analysing the relevant documents.4. Since we cannot countenance the manner in which the order has been passed by the High Court which has compelled us to remand the matter to the High Court for deciding the writ petition afresh on merits, we do so in light of the aforesaid observations.
|
Union Of India & Others Vs. Iqbal Singh | the Act. They are untouched by the provisions of the Act and are governed by other provisions of law. The statutory rights of claimants to compensation, which crystallize on assessment and verification of claims, are separate rights to property of each claimant covered by the wide definition of "property" in Section 6 of the Transfer of Property Act. They cannot evaporate or vanish suddenly with the death of a claimant. Rule s framed under Section 40 of the Act have to be and are those reasonably necessary for carrying out the purposes of the Act. They cannot go beyond the objects for which they can be framed. Those objects are confined to determination and payment of compensation for what was left in Pakistan and do not extend to deprivation of anything acquired in India in capacities other than those relevant for purposes of compensation.9. In the instant case, the right of the respondent as a legatee under the will of Jai Singh was recognised separately in proceedings under Section 9 of the Act. The respondent thus acquired a right which was different in character from his claim as a displaced person. After having gone through the Rules 17 to 20, we are unable to construe Rule 21 as an authority for clubbing together of a claim as well as a separate right of a claimant as a legatee under a will which is distinct from the displaced persons claim to Compensation as a displaced person . The right of such a legatee stands on a different footing from a claim made under Section 4 of the Act for payment of compensation or a rehabilitation grant. The amount of compensation or a rehabilitation grant is payable to a displaced person under the provisions of the Act. A dispute decided under Section 9 of the Act is very different in character from a claim for compensation or rehabilitation as a displaced person. It could relate to a right by inheritance to or by succession under a will of another claimant. But, each person has to be paid separately as indicated by Rule 17.Great reliance was placed on Rule 18 on behalf of the appellants. This rule lays down:"18. Compensation to be determined on the total value of all claims.- For the purpose of determining the compensation payable to an applicant, the Regional Settlement Commissioner shall, except as otherwise provided in these rules, add up the assessed value of all claims of the applicant in respect of all kinds of properties, other than agricultural land situated in a rural area, left by him in West Pakistan and the compensation shall be assessed on the total value of all such claims".10. This rule shows that only different kinds of claims of each displaced person in properties left by him in West Pakistan which can be clubbed together. It does not deal with rights or claims of another genus which may devolve upon a claimant in his capacity as an heir or a legatee of another displaced person who may have acquired a separate right of his own as a claimant to compensation under the Act. Clubbing together of "claims" in different kinds of properties has reference to an individuals claim to "compensation", and rehabilitation and not to claims of different displaced persons which could, by transfer or devolution, vest separately in an individual.11. Rule 19 deals with compensation payable to joint families and Rule 19A prescribes maximum amounts payable in such cases. Rule 19B refers to compensation ordinarily payable to kartas of joint families. Rule 20 provides for the assessment of compensation of a co-owner.12. These are the different types of claims of the same displaced person in different capacities as claimant, in each capacity, to compensation due to himself alone. There is no provision for clubbing together of compensation to different displaced persons each with a right of his own except as members of joint families, which are treated as legal entities by themselves. The rights of a successor of another displaced person are outside the rule. There is nothing in the Act or the rules framed thereunder to conflict with this natural and ordinary interpretation of fairly clear and simple language used.The judgment of the Division Bench of the Delhi High Court (H. R. Khanna, C.J. and S. N. Shankar J.) by which the Writ Petition of the respondent was allowed, shows that it had been conceded in the High Court, on behalf of the Rehabilitation Department, that Rule 18 would not apply to the case of the respondent before us. The Division Bench had relied upon an earlier decision of the Punjab High Court in Karam Singh v. Union of India &Ors. (1) where, upon similar facts, it had been held:"It is significant that in Rule 18 it is clearly stated that the compensation has to be determined on the total value of all claims pertaining to properties left by a claimant in West Pakistan. Therefore it is the property left by a claimant in West Pakistan. Therefore it is the property left by the petitioner to which he can make a claim. The property left by his uncle cannot be said to be the property left by him within rule 18. Properties left by a joint family are properties which the claimant, who claims to be a member of the joint family, can properly be said to have left in West Pakistan. Though the capacity in which he held those properties and so also in the case of properties held by him as a co-sharer with other persons is different from the capacity in which the properties left by him in West Pakistan in his personal and exclusive occupation are concerned. This cannot be said to be the case where he gets the property of another displaced person by reason of inheritance or by transfer. The capacities contemplated by Rule 21 are set out in Rule 18, 19 and 20 and in any case have to be analogous to them". | 0[ds]8. It is true that the Act is intended for payment of compensation for rehabilitation of displaced persons and matters connected therewith. There is, however, nothing in the Act to prevent a claimant from making a gift or a will in respect of the amount he may be entitled to get. No provision of the Act takes away rights of transfer of or inheritance to verified claims. Nothing like an abatement or extinction of a claim by the death of the claimant is provided for by the Act. Inheritance to and devolution of rights of claimants are clearly beyond the purview or scheme of the Act. They are untouched by the provisions of the Act and are governed by other provisions of law. The statutory rights of claimants to compensation, which crystallize on assessment and verification of claims, are separate rights to property of each claimant covered by the wide definition of "property" in Section 6 of the Transfer of Property Act. They cannot evaporate or vanish suddenly with the death of a claimant. Rule s framed under Section 40 of the Act have to be and are those reasonably necessary for carrying out the purposes of the Act. They cannot go beyond the objects for which they can be framed. Those objects are confined to determination and payment of compensation for what was left in Pakistan and do not extend to deprivation of anything acquired in India in capacities other than those relevant for purposes of compensation.9. In the instant case, the right of the respondent as a legatee under the will of Jai Singh was recognised separately in proceedings under Section 9 of the Act. The respondent thus acquired a right which was different in character from his claim as a displaced person. After having gone through the Rules 17 to 20, we are unable to construe Rule 21 as an authority for clubbing together of a claim as well as a separate right of a claimant as a legatee under a will which is distinct from the displaced persons claim to Compensation as a displaced person . The right of such a legatee stands on a different footing from a claim made under Section 4 of the Act for payment of compensation or a rehabilitation grant. The amount of compensation or a rehabilitation grant is payable to a displaced person under the provisions of the Act. A dispute decided under Section 9 of the Act is very different in character from a claim for compensation or rehabilitation as a displaced person. It could relate to a right by inheritance to or by succession under a will of another claimant. But, each person has to be paid separately as indicated by Rule 17.Great reliance was placed on Rule 18 on behalf of the appellants. This rule lays down:"18. Compensation to be determined on the total value of all claims.These are the different types of claims of the same displaced person in different capacities as claimant, in each capacity, to compensation due to himself alone. There is no provision for clubbing together of compensation to different displaced persons each with a right of his own except as members of joint families, which are treated as legal entities by themselves. The rights of a successor of another displaced person are outside the rule. There is nothing in the Act or the rules framed thereunder to conflict with this natural and ordinary interpretation of fairly clear and simple language used.The judgment of the Division Bench of the Delhi High Court (H. R. Khanna, C.J. and S. N. Shankar J.) by which the Writ Petition of the respondent was allowed, shows that it had been conceded in the High Court, on behalf of the Rehabilitation Department, that Rule 18 would not apply to the case of the respondent before us. The Division Bench had relied upon an earlier decision of the Punjab High Court in Karam Singh v. Union of India &Ors. (1) where, upon similar facts, it had been held:"It is significant that in Rule 18 it is clearly stated that the compensation has to be determined on the total value of all claims pertaining to properties left by a claimant in West Pakistan. Therefore it is the property left by a claimant in West Pakistan. Therefore it is the property left by the petitioner to which he can make a claim. The property left by his uncle cannot be said to be the property left by him within rule 18. Properties left by a joint family are properties which the claimant, who claims to be a member of the joint family, can properly be said to have left in West Pakistan. Though the capacity in which he held those properties and so also in the case of properties held by him as awith other persons is different from the capacity in which the properties left by him in West Pakistan in his personal and exclusive occupation are concerned. This cannot be said to be the case where he gets the property of another displaced person by reason of inheritance or by transfer. The capacities contemplated by Rule 21 are set out in Rule 18, 19 and 20 and in any case have to be analogous to them". | 0 | 2,102 | 953 | ### Instruction:
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the Act. They are untouched by the provisions of the Act and are governed by other provisions of law. The statutory rights of claimants to compensation, which crystallize on assessment and verification of claims, are separate rights to property of each claimant covered by the wide definition of "property" in Section 6 of the Transfer of Property Act. They cannot evaporate or vanish suddenly with the death of a claimant. Rule s framed under Section 40 of the Act have to be and are those reasonably necessary for carrying out the purposes of the Act. They cannot go beyond the objects for which they can be framed. Those objects are confined to determination and payment of compensation for what was left in Pakistan and do not extend to deprivation of anything acquired in India in capacities other than those relevant for purposes of compensation.9. In the instant case, the right of the respondent as a legatee under the will of Jai Singh was recognised separately in proceedings under Section 9 of the Act. The respondent thus acquired a right which was different in character from his claim as a displaced person. After having gone through the Rules 17 to 20, we are unable to construe Rule 21 as an authority for clubbing together of a claim as well as a separate right of a claimant as a legatee under a will which is distinct from the displaced persons claim to Compensation as a displaced person . The right of such a legatee stands on a different footing from a claim made under Section 4 of the Act for payment of compensation or a rehabilitation grant. The amount of compensation or a rehabilitation grant is payable to a displaced person under the provisions of the Act. A dispute decided under Section 9 of the Act is very different in character from a claim for compensation or rehabilitation as a displaced person. It could relate to a right by inheritance to or by succession under a will of another claimant. But, each person has to be paid separately as indicated by Rule 17.Great reliance was placed on Rule 18 on behalf of the appellants. This rule lays down:"18. Compensation to be determined on the total value of all claims.- For the purpose of determining the compensation payable to an applicant, the Regional Settlement Commissioner shall, except as otherwise provided in these rules, add up the assessed value of all claims of the applicant in respect of all kinds of properties, other than agricultural land situated in a rural area, left by him in West Pakistan and the compensation shall be assessed on the total value of all such claims".10. This rule shows that only different kinds of claims of each displaced person in properties left by him in West Pakistan which can be clubbed together. It does not deal with rights or claims of another genus which may devolve upon a claimant in his capacity as an heir or a legatee of another displaced person who may have acquired a separate right of his own as a claimant to compensation under the Act. Clubbing together of "claims" in different kinds of properties has reference to an individuals claim to "compensation", and rehabilitation and not to claims of different displaced persons which could, by transfer or devolution, vest separately in an individual.11. Rule 19 deals with compensation payable to joint families and Rule 19A prescribes maximum amounts payable in such cases. Rule 19B refers to compensation ordinarily payable to kartas of joint families. Rule 20 provides for the assessment of compensation of a co-owner.12. These are the different types of claims of the same displaced person in different capacities as claimant, in each capacity, to compensation due to himself alone. There is no provision for clubbing together of compensation to different displaced persons each with a right of his own except as members of joint families, which are treated as legal entities by themselves. The rights of a successor of another displaced person are outside the rule. There is nothing in the Act or the rules framed thereunder to conflict with this natural and ordinary interpretation of fairly clear and simple language used.The judgment of the Division Bench of the Delhi High Court (H. R. Khanna, C.J. and S. N. Shankar J.) by which the Writ Petition of the respondent was allowed, shows that it had been conceded in the High Court, on behalf of the Rehabilitation Department, that Rule 18 would not apply to the case of the respondent before us. The Division Bench had relied upon an earlier decision of the Punjab High Court in Karam Singh v. Union of India &Ors. (1) where, upon similar facts, it had been held:"It is significant that in Rule 18 it is clearly stated that the compensation has to be determined on the total value of all claims pertaining to properties left by a claimant in West Pakistan. Therefore it is the property left by a claimant in West Pakistan. Therefore it is the property left by the petitioner to which he can make a claim. The property left by his uncle cannot be said to be the property left by him within rule 18. Properties left by a joint family are properties which the claimant, who claims to be a member of the joint family, can properly be said to have left in West Pakistan. Though the capacity in which he held those properties and so also in the case of properties held by him as a co-sharer with other persons is different from the capacity in which the properties left by him in West Pakistan in his personal and exclusive occupation are concerned. This cannot be said to be the case where he gets the property of another displaced person by reason of inheritance or by transfer. The capacities contemplated by Rule 21 are set out in Rule 18, 19 and 20 and in any case have to be analogous to them".
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8. It is true that the Act is intended for payment of compensation for rehabilitation of displaced persons and matters connected therewith. There is, however, nothing in the Act to prevent a claimant from making a gift or a will in respect of the amount he may be entitled to get. No provision of the Act takes away rights of transfer of or inheritance to verified claims. Nothing like an abatement or extinction of a claim by the death of the claimant is provided for by the Act. Inheritance to and devolution of rights of claimants are clearly beyond the purview or scheme of the Act. They are untouched by the provisions of the Act and are governed by other provisions of law. The statutory rights of claimants to compensation, which crystallize on assessment and verification of claims, are separate rights to property of each claimant covered by the wide definition of "property" in Section 6 of the Transfer of Property Act. They cannot evaporate or vanish suddenly with the death of a claimant. Rule s framed under Section 40 of the Act have to be and are those reasonably necessary for carrying out the purposes of the Act. They cannot go beyond the objects for which they can be framed. Those objects are confined to determination and payment of compensation for what was left in Pakistan and do not extend to deprivation of anything acquired in India in capacities other than those relevant for purposes of compensation.9. In the instant case, the right of the respondent as a legatee under the will of Jai Singh was recognised separately in proceedings under Section 9 of the Act. The respondent thus acquired a right which was different in character from his claim as a displaced person. After having gone through the Rules 17 to 20, we are unable to construe Rule 21 as an authority for clubbing together of a claim as well as a separate right of a claimant as a legatee under a will which is distinct from the displaced persons claim to Compensation as a displaced person . The right of such a legatee stands on a different footing from a claim made under Section 4 of the Act for payment of compensation or a rehabilitation grant. The amount of compensation or a rehabilitation grant is payable to a displaced person under the provisions of the Act. A dispute decided under Section 9 of the Act is very different in character from a claim for compensation or rehabilitation as a displaced person. It could relate to a right by inheritance to or by succession under a will of another claimant. But, each person has to be paid separately as indicated by Rule 17.Great reliance was placed on Rule 18 on behalf of the appellants. This rule lays down:"18. Compensation to be determined on the total value of all claims.These are the different types of claims of the same displaced person in different capacities as claimant, in each capacity, to compensation due to himself alone. There is no provision for clubbing together of compensation to different displaced persons each with a right of his own except as members of joint families, which are treated as legal entities by themselves. The rights of a successor of another displaced person are outside the rule. There is nothing in the Act or the rules framed thereunder to conflict with this natural and ordinary interpretation of fairly clear and simple language used.The judgment of the Division Bench of the Delhi High Court (H. R. Khanna, C.J. and S. N. Shankar J.) by which the Writ Petition of the respondent was allowed, shows that it had been conceded in the High Court, on behalf of the Rehabilitation Department, that Rule 18 would not apply to the case of the respondent before us. The Division Bench had relied upon an earlier decision of the Punjab High Court in Karam Singh v. Union of India &Ors. (1) where, upon similar facts, it had been held:"It is significant that in Rule 18 it is clearly stated that the compensation has to be determined on the total value of all claims pertaining to properties left by a claimant in West Pakistan. Therefore it is the property left by a claimant in West Pakistan. Therefore it is the property left by the petitioner to which he can make a claim. The property left by his uncle cannot be said to be the property left by him within rule 18. Properties left by a joint family are properties which the claimant, who claims to be a member of the joint family, can properly be said to have left in West Pakistan. Though the capacity in which he held those properties and so also in the case of properties held by him as awith other persons is different from the capacity in which the properties left by him in West Pakistan in his personal and exclusive occupation are concerned. This cannot be said to be the case where he gets the property of another displaced person by reason of inheritance or by transfer. The capacities contemplated by Rule 21 are set out in Rule 18, 19 and 20 and in any case have to be analogous to them".
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United Commercial Bank Ltd Vs. Okara Grain Buyers Syndicate Ltd. & Anr | to specify the authority in exercise of which it is claimed that the amount was forfeited. A copy of a letter dated March 4, 1949, from N. A. Haroon, Officer on Special Duty, West Pakistan Government, Finance Department, Lahore, addressed to the Manager, United Commercial Bank Ltd. was also produced by Shamim Yazdani. It is recited in the letter that he was directed to enclose a list of securities of non-Muslims deposited with the Branch Office and forfeited at Lyallpur, Okara and the Bank was requested to make arrangements for early realization of the amount for payment to the District Food Controllers concerned. Neither the original letter nor its authenticated copy has been produced. There is no reference to the source of the authority of the officer who purported to forfeit the amount. The letter even does not recite that the order of for feiture was made by him acting on behalf of the Government of Pakistan.9. It is common ground that the money deposited had not been paid by the Bank to the Government of Pakistan till the High Court decided the appeal. Counsel for the Bank urged that once an order was passed forfeiting the amount, the Bank held the amount on behalf of the Government of Pakistan. But underlies that argument the assumption that such an order was in fact passed by the Government of Pakistan. In the absence of any evidence to that effect, we are unable to hold that any such order of forfeiture was passed. We do not feel called upon in this case to consider whether an order passed by the Government of a foreign country forfeiting the property of an Indian national must be recognized by the Courts in this country as a complete discharge of the obligation in circumstances similar to those in this case, when the question is raised in the Courts here.10. It was faintly suggested that the amount of Rs. 40,000 had vested in the Custodian, Evacuee Property in Pakistan. But the question was never mooted at any stage of this litigation, and we cannot permit counsel for the Bank to make out that case for the first time in this Court.11. Finally it was contended, relying upon the judgment of this Court in Delhi Cloth and General Mills Co. Ltd. v. Harnam Singh, (1955) 2 SCR 402 = (AIR 1955 SC 590 ) that the dispute must be determined by the law of Pakistan and not by the law of India. In that case, the plaintiffs were residents of Lyallpur and were appointed by the Government of undivided Punjab to administer a scheme for rationing of cloth. The Cloth Mills through its branch office at Lyallpur supplied those persons with cloth from time to time and maintained a running account of the transactions. On partition in 1947, Lyallpur was allotted to Pakistan and the plaintiffs migrated to India as refugees. The Pakistan Government issued an Ordinance vesting all evacuee property in Pakistan in the Custodian of Evacuee Property in Pakistan, and prohibited payment of money to evacuees in Pakistan and ordered that all moneys payable to, or claimable by evacuees, be paid to the Deputy Custodian of Evacuee Property in Pakistan. Payments so made were to operate as a discharge charge from further liability to the extent of the payment. Breach of this law was punishable as an offence The Deputy Custodian of Evacuee Property demanded of the Mills the money payable to the plaintiffs and in satisfaction of the payment the Mills paid the amount. In defence to a suit filed by the plaintiffs in the Court of the Subordinate Judge, Delhi, the Mills pleaded that they had discharged their liability by payment made to the Deputy Custodian of Evacuee Property in Pakistan. This Court held that Lyallpur was the place of primary obligation, that the elements out of which the contract to day arose were most densely grouped at Lyallpur, and Lyallpur was the natural seat of the contract and the place with which it had its closets and most real connection. Accordingly the proper law of the contract was the law of Pakistan, and that even under the English doctrine the situs of the debt was Lyallpur and therefore either way the law of Pakistan applied.11-A. Assuming that it was the law of Pakistan which applied to the repayment of the debt due under the receipt, the Bank has failed to prove its defence that they are not liable to pay the money due under the deposit receipt. To recapitulate the facts, the amount was deposited by the Syndicate it was repayable to the Syndicate when demanded; the notice of repayment of the amount was served at the date when the deposit was made. The District Magistrate, Montgomery had no contractual relationship with the Bank, nor was the Bank constituted a trustee for the District Magistrate.The Bank has failed to prove that in exercise of any statutory or sovereign authority the Government of Pakistan have forfeited the amount. Nothing has been placed which may support the plea that under the law of Pakistan the Bank is not liable to repay the amount due under a deposit receipt on the due date, because an officer of the State is said to have the custody of the receipt evidencing the deposit.12. The order for payment of interest at a rate exceeding 2 per cent per annum was also challenged by the Bank. But the rate of interest was stipulated only for the period of the deposit receipt. The Syndicate claimed interest at the rate of 6 per cent per annum from the date on which the petition was filed before the Tribunal under the Displaced Persons (Debts Adjustment) Act, 70 of 1951. Interest from the date of the petition was within the discretion of the High Court, and the High Court has awarded interest at the rate claimed. We do not see any reason to interfere with the rate of interest awarded by the High Court. | 0[ds]We are of the view, even if Condition No. 5 of the terms of deposit receipt is a condition precedent to the enforcement of the obligation of the Bank in favour of the Syndicate, that the High Court was right in exercise of its equitable jurisdiction to direct that the money be paid to the Syndicate without production of the receipt. It may reasonably be inferred that the receipt is lost or destroyed and the Courts equitable jurisdiction may appropriately be exercised in this case. Whether the District Magistrate has the receipt is on the evidence problematic. Again the High Court has fully protected the Bank against any possible loss by directing that an indemnity be given by the Syndicate to the Bank for restitution if the Bank is made to pay the amount to the District Magistrate, Montgomery, and this eminently reasonable direction is not liable to be set aside.Finally it was contended, relying upon the judgment of this Court in Delhi Cloth and General Mills Co. Ltd. v. Harnam Singh, (1955) 2 SCR 402 = (AIR 1955 SC 590 ) that the dispute must be determined by the law of Pakistan and not by the law of India. In that case, the plaintiffs were residents of Lyallpur and were appointed by the Government of undivided Punjab to administer a scheme for rationing of cloth. The Cloth Mills through its branch office at Lyallpur supplied those persons with cloth from time to time and maintained a running account of the transactions. On partition in 1947, Lyallpur was allotted to Pakistan and the plaintiffs migrated to India as refugees. The Pakistan Government issued an Ordinance vesting all evacuee property in Pakistan in the Custodian of Evacuee Property in Pakistan, and prohibited payment of money to evacuees in Pakistan and ordered that all moneys payable to, or claimable by evacuees, be paid to the Deputy Custodian of Evacuee Property in Pakistan. Payments so made were to operate as a discharge charge from further liability to the extent of the payment. Breach of this law was punishable as an offence The Deputy Custodian of Evacuee Property demanded of the Mills the money payable to the plaintiffs and in satisfaction of the payment the Mills paid the amount. In defence to a suit filed by the plaintiffs in the Court of the Subordinate Judge, Delhi, the Mills pleaded that they had discharged their liability by payment made to the Deputy Custodian of Evacuee Property in Pakistan. This Court held that Lyallpur was the place of primary obligation, that the elements out of which the contract to day arose were most densely grouped at Lyallpur, and Lyallpur was the natural seat of the contract and the place with which it had its closets and most real connection. Accordingly the proper law of the contract was the law of Pakistan, and that even under the English doctrine the situs of the debt was Lyallpur and therefore either way the law of Pakistan applied.11-A. Assuming that it was the law of Pakistan which applied to the repayment of the debt due under the receipt, the Bank has failed to prove its defence that they are not liable to pay the money due under the deposit receipt. To recapitulate the facts, the amount was deposited by the Syndicate it was repayable to the Syndicate when demanded; the notice of repayment of the amount was served at the date when the deposit was made. The District Magistrate, Montgomery had no contractual relationship with the Bank, nor was the Bank constituted a trustee for the District Magistrate.The Bank has failed to prove that in exercise of any statutory or sovereign authority the Government of Pakistan have forfeited the amount. Nothing has been placed which may support the plea that under the law of Pakistan the Bank is not liable to repay the amount due under a deposit receipt on the due date, because an officer of the State is said to have the custody of the receipt evidencing the deposit.12. The order for payment of interest at a rate exceeding 2 per cent per annum was also challenged by the Bank. But the rate of interest was stipulated only for the period of the deposit receipt. The Syndicate claimed interest at the rate of 6 per cent per annum from the date on which the petition was filed before the Tribunal under the Displaced Persons (Debts Adjustment) Act, 70 of 1951. Interest from the date of the petition was within the discretion of the High Court, and the High Court has awarded interest at the rate claimed. We do not see any reason to interfere with the rate of interest awarded by the High Court. | 0 | 2,957 | 842 | ### 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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to specify the authority in exercise of which it is claimed that the amount was forfeited. A copy of a letter dated March 4, 1949, from N. A. Haroon, Officer on Special Duty, West Pakistan Government, Finance Department, Lahore, addressed to the Manager, United Commercial Bank Ltd. was also produced by Shamim Yazdani. It is recited in the letter that he was directed to enclose a list of securities of non-Muslims deposited with the Branch Office and forfeited at Lyallpur, Okara and the Bank was requested to make arrangements for early realization of the amount for payment to the District Food Controllers concerned. Neither the original letter nor its authenticated copy has been produced. There is no reference to the source of the authority of the officer who purported to forfeit the amount. The letter even does not recite that the order of for feiture was made by him acting on behalf of the Government of Pakistan.9. It is common ground that the money deposited had not been paid by the Bank to the Government of Pakistan till the High Court decided the appeal. Counsel for the Bank urged that once an order was passed forfeiting the amount, the Bank held the amount on behalf of the Government of Pakistan. But underlies that argument the assumption that such an order was in fact passed by the Government of Pakistan. In the absence of any evidence to that effect, we are unable to hold that any such order of forfeiture was passed. We do not feel called upon in this case to consider whether an order passed by the Government of a foreign country forfeiting the property of an Indian national must be recognized by the Courts in this country as a complete discharge of the obligation in circumstances similar to those in this case, when the question is raised in the Courts here.10. It was faintly suggested that the amount of Rs. 40,000 had vested in the Custodian, Evacuee Property in Pakistan. But the question was never mooted at any stage of this litigation, and we cannot permit counsel for the Bank to make out that case for the first time in this Court.11. Finally it was contended, relying upon the judgment of this Court in Delhi Cloth and General Mills Co. Ltd. v. Harnam Singh, (1955) 2 SCR 402 = (AIR 1955 SC 590 ) that the dispute must be determined by the law of Pakistan and not by the law of India. In that case, the plaintiffs were residents of Lyallpur and were appointed by the Government of undivided Punjab to administer a scheme for rationing of cloth. The Cloth Mills through its branch office at Lyallpur supplied those persons with cloth from time to time and maintained a running account of the transactions. On partition in 1947, Lyallpur was allotted to Pakistan and the plaintiffs migrated to India as refugees. The Pakistan Government issued an Ordinance vesting all evacuee property in Pakistan in the Custodian of Evacuee Property in Pakistan, and prohibited payment of money to evacuees in Pakistan and ordered that all moneys payable to, or claimable by evacuees, be paid to the Deputy Custodian of Evacuee Property in Pakistan. Payments so made were to operate as a discharge charge from further liability to the extent of the payment. Breach of this law was punishable as an offence The Deputy Custodian of Evacuee Property demanded of the Mills the money payable to the plaintiffs and in satisfaction of the payment the Mills paid the amount. In defence to a suit filed by the plaintiffs in the Court of the Subordinate Judge, Delhi, the Mills pleaded that they had discharged their liability by payment made to the Deputy Custodian of Evacuee Property in Pakistan. This Court held that Lyallpur was the place of primary obligation, that the elements out of which the contract to day arose were most densely grouped at Lyallpur, and Lyallpur was the natural seat of the contract and the place with which it had its closets and most real connection. Accordingly the proper law of the contract was the law of Pakistan, and that even under the English doctrine the situs of the debt was Lyallpur and therefore either way the law of Pakistan applied.11-A. Assuming that it was the law of Pakistan which applied to the repayment of the debt due under the receipt, the Bank has failed to prove its defence that they are not liable to pay the money due under the deposit receipt. To recapitulate the facts, the amount was deposited by the Syndicate it was repayable to the Syndicate when demanded; the notice of repayment of the amount was served at the date when the deposit was made. The District Magistrate, Montgomery had no contractual relationship with the Bank, nor was the Bank constituted a trustee for the District Magistrate.The Bank has failed to prove that in exercise of any statutory or sovereign authority the Government of Pakistan have forfeited the amount. Nothing has been placed which may support the plea that under the law of Pakistan the Bank is not liable to repay the amount due under a deposit receipt on the due date, because an officer of the State is said to have the custody of the receipt evidencing the deposit.12. The order for payment of interest at a rate exceeding 2 per cent per annum was also challenged by the Bank. But the rate of interest was stipulated only for the period of the deposit receipt. The Syndicate claimed interest at the rate of 6 per cent per annum from the date on which the petition was filed before the Tribunal under the Displaced Persons (Debts Adjustment) Act, 70 of 1951. Interest from the date of the petition was within the discretion of the High Court, and the High Court has awarded interest at the rate claimed. We do not see any reason to interfere with the rate of interest awarded by the High Court.
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We are of the view, even if Condition No. 5 of the terms of deposit receipt is a condition precedent to the enforcement of the obligation of the Bank in favour of the Syndicate, that the High Court was right in exercise of its equitable jurisdiction to direct that the money be paid to the Syndicate without production of the receipt. It may reasonably be inferred that the receipt is lost or destroyed and the Courts equitable jurisdiction may appropriately be exercised in this case. Whether the District Magistrate has the receipt is on the evidence problematic. Again the High Court has fully protected the Bank against any possible loss by directing that an indemnity be given by the Syndicate to the Bank for restitution if the Bank is made to pay the amount to the District Magistrate, Montgomery, and this eminently reasonable direction is not liable to be set aside.Finally it was contended, relying upon the judgment of this Court in Delhi Cloth and General Mills Co. Ltd. v. Harnam Singh, (1955) 2 SCR 402 = (AIR 1955 SC 590 ) that the dispute must be determined by the law of Pakistan and not by the law of India. In that case, the plaintiffs were residents of Lyallpur and were appointed by the Government of undivided Punjab to administer a scheme for rationing of cloth. The Cloth Mills through its branch office at Lyallpur supplied those persons with cloth from time to time and maintained a running account of the transactions. On partition in 1947, Lyallpur was allotted to Pakistan and the plaintiffs migrated to India as refugees. The Pakistan Government issued an Ordinance vesting all evacuee property in Pakistan in the Custodian of Evacuee Property in Pakistan, and prohibited payment of money to evacuees in Pakistan and ordered that all moneys payable to, or claimable by evacuees, be paid to the Deputy Custodian of Evacuee Property in Pakistan. Payments so made were to operate as a discharge charge from further liability to the extent of the payment. Breach of this law was punishable as an offence The Deputy Custodian of Evacuee Property demanded of the Mills the money payable to the plaintiffs and in satisfaction of the payment the Mills paid the amount. In defence to a suit filed by the plaintiffs in the Court of the Subordinate Judge, Delhi, the Mills pleaded that they had discharged their liability by payment made to the Deputy Custodian of Evacuee Property in Pakistan. This Court held that Lyallpur was the place of primary obligation, that the elements out of which the contract to day arose were most densely grouped at Lyallpur, and Lyallpur was the natural seat of the contract and the place with which it had its closets and most real connection. Accordingly the proper law of the contract was the law of Pakistan, and that even under the English doctrine the situs of the debt was Lyallpur and therefore either way the law of Pakistan applied.11-A. Assuming that it was the law of Pakistan which applied to the repayment of the debt due under the receipt, the Bank has failed to prove its defence that they are not liable to pay the money due under the deposit receipt. To recapitulate the facts, the amount was deposited by the Syndicate it was repayable to the Syndicate when demanded; the notice of repayment of the amount was served at the date when the deposit was made. The District Magistrate, Montgomery had no contractual relationship with the Bank, nor was the Bank constituted a trustee for the District Magistrate.The Bank has failed to prove that in exercise of any statutory or sovereign authority the Government of Pakistan have forfeited the amount. Nothing has been placed which may support the plea that under the law of Pakistan the Bank is not liable to repay the amount due under a deposit receipt on the due date, because an officer of the State is said to have the custody of the receipt evidencing the deposit.12. The order for payment of interest at a rate exceeding 2 per cent per annum was also challenged by the Bank. But the rate of interest was stipulated only for the period of the deposit receipt. The Syndicate claimed interest at the rate of 6 per cent per annum from the date on which the petition was filed before the Tribunal under the Displaced Persons (Debts Adjustment) Act, 70 of 1951. Interest from the date of the petition was within the discretion of the High Court, and the High Court has awarded interest at the rate claimed. We do not see any reason to interfere with the rate of interest awarded by the High Court.
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South Indian Bank Limited Vs. A.R. Chacko | to govern the relations between the parties till it is displaced by another contract. The objection that no such benefit as claimed could accrue to the respondent after March 31, 1959 must therefore be rejected.9. This brings us to the last objection that on appointment as accountant, the respondent Chacko ceased to be a workman. Admittedly, the mere fact that he was designated as accountant would not take him out of the category of workman. This was recognised in Para. 332 of the Sastry Award when it was said -"The categories of workmen known as Head Clerks, Accountants, Head Cashiers should prima facie be taken as workmen wherever they desire to be so treated but with this important proviso that the banks are at liberty to raise an industrial dispute about such classification wherever they feel that with reference to a particular branch and a particular office a person so designated is really entrusted with work of a directional and controlling nature and perhaps even supervision of a higher type over ordinary supervisory agencies."10. In Para. 167, where the case of accountants was specially dealt with it was against said:-"In several cases they will indisputably be officers. It is difficult to lay down a hard and fast rule in respect of them. An Accountant often times is the second officer in-charge of branches, particularly where the branches are comparatively small. In big banks where there is a hierarchy of officers there may be a chief accountant, accountants, and sub-accountants. In most of those cases the “accountants" will probably be officers. There will however be incumbents of such posts, though going under the dignified designation of accountants who are in reality only senior clerks doing higher type of clerical work involving an element of supervision over other clerks as part of their duties. In such cases where they can properly be regarded as workman the minimum allowances which we have fixed for sub-accountant would equally apply to them."11. The Labour Court appears to have taken proper note of this distinction between accountants who are really officers and accountant who are merely senior clerks with supervisory duties and on a consideration of the evidence on the record as regards the duties actually performed by the respondent Chacko has come to the conclusion that he was merely a senior clerk, doing mainly clerical duties, and going by the designation accountant and was in reality a workman as defined in the Industrial Disputes Act and doing an element of supervisory work.12. We can find no mistake in the approach of the Labour Court to the question nor can we see any justification for interfering with its conclusion on the evidence in the case. All the relevant documents produced have been duly considered by the Labour Court in light of the oral evidence given; and on such consideration it has come to the conclusion that though on paper certain rights and powers were assigned to him and occasionally he acted in the place of the Agent when the Agent was absent such duties did not form part of his principal and main duties.13. Mr. Setalvad drew our attention to a copy of the resolution passed by the Board of Directors under which the respondent as Accountant was authorised " to make draw, sign, endorse, purchase, sell discount and negotiate Bills of Exchange, Hundies, Drafts, Cheques, Promissory Notes and other Negotiable instruments in the name of and on behalf of the Bank and also to operate upon all banking account maintained by this Bank with banks, bankers, and others in India for and on behalf of the South Indian Bank Limited." This resolution was dated July 18, 1959 and on the same date a circular-letter was issued to all branches sending a binder containing specimen signatures of all the officers of the Bank and the respondents name was also included in this list. In spite of this however, as pointed out by the Labour Court, it does not appear from the evidence that generally Mr. Chacko had occasion to exercise the several powers said to have been granted to him. A truer picture of his actual functions appears from a document dated August 28, 1961 signed by the Agent which was put in evidence as Ex. W 1 and the correctness of which does not appear to have been challenged on behalf of the Bank authorities. The list of duties mentioned in this document clearly shows that these are almost wholly clerical - the only exception being Item 14, viz., “and other work entrusted to him by the Agent from time to time." The Labour Court has also pointed out that no power of attorney was granted to Mr. Chacko. When on a consideration of all the relevant evidence the Labour Court has come to the conclusion that the duties performed by the respondent consisted of clerical work with supervisory functions and were certainly not managerial or administrative as contended for by the Bank, we find no reason to interfere with that conclusion.14. It is pertinent to notice that on the Banks case a workman in the position of Chacko would on promotion to the rank of an officer from that of a workman be financially a loser by being deprived of the special allowance which he would have got as a workman with supervisory duties without obtaining sufficient recompense for the same because of the performance of the so-called managerial and administrative duties. It is not unreasonable to think that this so-called promotion to officers grade was really intended to undo the effect of the recommendations of the Sastry Award for this supervisory allowance. It is difficult to understand otherwise that person with higher responsibilities and managerial duties to perform would in fact be getting less in rupees and annas than what they would be getting as workman. In the circumstances, the finding of the Labour Court that the respondent was a workman entitled to the benefits of the Sastry Award cannot be successfully challenged. | 0[ds]The contention is clearly misconceived. The schedule refers specifically to S. 7 of the Act.That section lays down that the appropriate government may, by notification in the official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the second Schedule and for performing such other functions as may be assigned to them under this Act. Section 33C(2) in terms assigns the determination of the amount of benefit to which the workman is entitled to receive from the employer and which is capable of being computed in terms of money to such Labour Court as may be specified in this behalf by the appropriate Government. Clearly, therefore, the Labour Court as specified by the Government and not the Industrial Tribunal, has jurisdiction to deal with thistruer picture of his actual functions appears from a document dated August 28, 1961 signed by the Agent which was put in evidence as Ex. W 1 and the correctness of which does not appear to have been challenged on behalf of the Bank authorities. The list of duties mentioned in this document clearly shows that these are almost wholly clerical - the only exception being Item 14, viz.,other work entrusted to him by the Agent from time to time." The Labour Court has also pointed out that no power of attorney was granted to Mr. Chacko. When on a consideration of all the relevant evidence the Labour Court has come to the conclusion that the duties performed by the respondent consisted of clerical work with supervisory functions and were certainly not managerial or administrative as contended for by the Bank, we find no reason to interfere with that conclusion.14. It is pertinent to notice that on the Banks case a workman in the position of Chacko would on promotion to the rank of an officer from that of a workman be financially a loser by being deprived of the special allowance which he would have got as a workman with supervisory duties without obtaining sufficient recompense for the same because of the performance of the so-called managerial and administrative duties. It is not unreasonable to think that this so-called promotion to officers grade was really intended to undo the effect of the recommendations of the Sastry Award for this supervisory allowance. It is difficult to understand otherwise that person with higher responsibilities and managerial duties to perform would in fact be getting less in rupees and annas than what they would be getting as workman. In the circumstances, the finding of the Labour Court that the respondent was a workman entitled to the benefits of the Sastry Award cannot be successfully challenged. | 0 | 2,791 | 479 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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to govern the relations between the parties till it is displaced by another contract. The objection that no such benefit as claimed could accrue to the respondent after March 31, 1959 must therefore be rejected.9. This brings us to the last objection that on appointment as accountant, the respondent Chacko ceased to be a workman. Admittedly, the mere fact that he was designated as accountant would not take him out of the category of workman. This was recognised in Para. 332 of the Sastry Award when it was said -"The categories of workmen known as Head Clerks, Accountants, Head Cashiers should prima facie be taken as workmen wherever they desire to be so treated but with this important proviso that the banks are at liberty to raise an industrial dispute about such classification wherever they feel that with reference to a particular branch and a particular office a person so designated is really entrusted with work of a directional and controlling nature and perhaps even supervision of a higher type over ordinary supervisory agencies."10. In Para. 167, where the case of accountants was specially dealt with it was against said:-"In several cases they will indisputably be officers. It is difficult to lay down a hard and fast rule in respect of them. An Accountant often times is the second officer in-charge of branches, particularly where the branches are comparatively small. In big banks where there is a hierarchy of officers there may be a chief accountant, accountants, and sub-accountants. In most of those cases the “accountants" will probably be officers. There will however be incumbents of such posts, though going under the dignified designation of accountants who are in reality only senior clerks doing higher type of clerical work involving an element of supervision over other clerks as part of their duties. In such cases where they can properly be regarded as workman the minimum allowances which we have fixed for sub-accountant would equally apply to them."11. The Labour Court appears to have taken proper note of this distinction between accountants who are really officers and accountant who are merely senior clerks with supervisory duties and on a consideration of the evidence on the record as regards the duties actually performed by the respondent Chacko has come to the conclusion that he was merely a senior clerk, doing mainly clerical duties, and going by the designation accountant and was in reality a workman as defined in the Industrial Disputes Act and doing an element of supervisory work.12. We can find no mistake in the approach of the Labour Court to the question nor can we see any justification for interfering with its conclusion on the evidence in the case. All the relevant documents produced have been duly considered by the Labour Court in light of the oral evidence given; and on such consideration it has come to the conclusion that though on paper certain rights and powers were assigned to him and occasionally he acted in the place of the Agent when the Agent was absent such duties did not form part of his principal and main duties.13. Mr. Setalvad drew our attention to a copy of the resolution passed by the Board of Directors under which the respondent as Accountant was authorised " to make draw, sign, endorse, purchase, sell discount and negotiate Bills of Exchange, Hundies, Drafts, Cheques, Promissory Notes and other Negotiable instruments in the name of and on behalf of the Bank and also to operate upon all banking account maintained by this Bank with banks, bankers, and others in India for and on behalf of the South Indian Bank Limited." This resolution was dated July 18, 1959 and on the same date a circular-letter was issued to all branches sending a binder containing specimen signatures of all the officers of the Bank and the respondents name was also included in this list. In spite of this however, as pointed out by the Labour Court, it does not appear from the evidence that generally Mr. Chacko had occasion to exercise the several powers said to have been granted to him. A truer picture of his actual functions appears from a document dated August 28, 1961 signed by the Agent which was put in evidence as Ex. W 1 and the correctness of which does not appear to have been challenged on behalf of the Bank authorities. The list of duties mentioned in this document clearly shows that these are almost wholly clerical - the only exception being Item 14, viz., “and other work entrusted to him by the Agent from time to time." The Labour Court has also pointed out that no power of attorney was granted to Mr. Chacko. When on a consideration of all the relevant evidence the Labour Court has come to the conclusion that the duties performed by the respondent consisted of clerical work with supervisory functions and were certainly not managerial or administrative as contended for by the Bank, we find no reason to interfere with that conclusion.14. It is pertinent to notice that on the Banks case a workman in the position of Chacko would on promotion to the rank of an officer from that of a workman be financially a loser by being deprived of the special allowance which he would have got as a workman with supervisory duties without obtaining sufficient recompense for the same because of the performance of the so-called managerial and administrative duties. It is not unreasonable to think that this so-called promotion to officers grade was really intended to undo the effect of the recommendations of the Sastry Award for this supervisory allowance. It is difficult to understand otherwise that person with higher responsibilities and managerial duties to perform would in fact be getting less in rupees and annas than what they would be getting as workman. In the circumstances, the finding of the Labour Court that the respondent was a workman entitled to the benefits of the Sastry Award cannot be successfully challenged.
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0
### Explanation:
The contention is clearly misconceived. The schedule refers specifically to S. 7 of the Act.That section lays down that the appropriate government may, by notification in the official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the second Schedule and for performing such other functions as may be assigned to them under this Act. Section 33C(2) in terms assigns the determination of the amount of benefit to which the workman is entitled to receive from the employer and which is capable of being computed in terms of money to such Labour Court as may be specified in this behalf by the appropriate Government. Clearly, therefore, the Labour Court as specified by the Government and not the Industrial Tribunal, has jurisdiction to deal with thistruer picture of his actual functions appears from a document dated August 28, 1961 signed by the Agent which was put in evidence as Ex. W 1 and the correctness of which does not appear to have been challenged on behalf of the Bank authorities. The list of duties mentioned in this document clearly shows that these are almost wholly clerical - the only exception being Item 14, viz.,other work entrusted to him by the Agent from time to time." The Labour Court has also pointed out that no power of attorney was granted to Mr. Chacko. When on a consideration of all the relevant evidence the Labour Court has come to the conclusion that the duties performed by the respondent consisted of clerical work with supervisory functions and were certainly not managerial or administrative as contended for by the Bank, we find no reason to interfere with that conclusion.14. It is pertinent to notice that on the Banks case a workman in the position of Chacko would on promotion to the rank of an officer from that of a workman be financially a loser by being deprived of the special allowance which he would have got as a workman with supervisory duties without obtaining sufficient recompense for the same because of the performance of the so-called managerial and administrative duties. It is not unreasonable to think that this so-called promotion to officers grade was really intended to undo the effect of the recommendations of the Sastry Award for this supervisory allowance. It is difficult to understand otherwise that person with higher responsibilities and managerial duties to perform would in fact be getting less in rupees and annas than what they would be getting as workman. In the circumstances, the finding of the Labour Court that the respondent was a workman entitled to the benefits of the Sastry Award cannot be successfully challenged.
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Gurjit Singh Sahota Vs. State of Punjab and Another | MATHEW, J.1. The appellant filed a writ petition before the High Court of Punjab and Haryana praying for issue of a writ of certiorari or other appropriate writ or direction quashing an order reverting him from the post of Divisional Soil Conservation Officer (Class I) to the post of Assistant Soil Conservation Officer (Class II). The High Court dismissed the petition and this appeal, by special leave is from that order.2. The appellant was appointed as Assistant Soil Conservation Officer (Class II) on September 14, 1962. When the appellant was working as Class II officer, the Government confirmed five Class II officers on September 16, 1968. The appellant was not one among them. But the order of confirmation stated that one post was reserved for the appellant for his being confirmed when found suitable. One Mehtab Singh who was a junior to the appellant in the post of Assistant Soil Conservation Officer was confirmed with effect from July 10, 1968.3. The Government informed the Public Service Commission on August 1, 1969 that Mehtab Singh was eligible for promotion to the post of Divisional Soil Conservation Officer (Class I) and he was promoted to that post. On June 16, 1971, the appellant was promoted as Divisional Soil Conservation Officer (Class I) on ad hoc basis. Thereafter four of the juniors of the appellant were also promoted to the post of Divisional Soil Conservation Officer (Class I) on ad hoc basis. The appellant was confirmed as Assistant Soil Conservation Officer (Class II) on September 22, 1971 with retrospective effect from June 9, 1968. Subsequently the Government informed the Public Service Commission that as the appellant was confirmed, he became senior to Shri Mehtab Singh and therefore, the Government had decided to promote the appellant as Class I officer on regular basis. The Public Service Commission disagreed with the proposal of the Government on the basis that the appellants confirmation with effect from a date earlier than that a Mehtab Singh was not justified. The Commission also gave approval of the regularisation of Shri Mehtab Singhs promotion. On August 16, 1974 the appellant was served with an order stating that he had been reverted from the post of Divisional Soil Conservation Officer to the post of Assistant Soil Conservation Officer. As already stated, it was to quash this order that the appellant filed the writ petition.4. There is no dispute that when the appellant was promoted on ad hoc basis to the Class I post, his record of service was unsatisfactory and it was for this reason that the Public Service Commission advised that he should be reverted and that the Government passed the order reverting him to the Class II post.5. The appellants contention is that when four of his juniors were promoted on ad hoc basis as Divisional Soil Conservation Officer (Class I), his record of service in the Class I post on the basis of ad hoc promotion should have been taken into consideration in adjudging whether he was eligible for promotion to Class I post in preference to any one of them. In other words, the argument was that although he had been found unsuitable for promotion on the date when he was promoted to Class I post on ad hoc basis, that was no reason for not considering his record of service in the Class I post when his juniors were promoted to Class I posts on ad hoc basis.6. The High Court found that since the appellant was not reverted by way of punishment and the Public Service Committee did not adjudge him suitable for the post the order of reversion was not open to challenge. But the Court, however, observed :It will be open to the Government to refer the case of the petitioner to the Public Service Commission specifically for advice as to his suitability for the post of Divisional Soil Conservation Officer and thereafter to act in accordance with law.7. We think that the grievance of the appellant to the extent that his record of service in the Class I post should have been considered when his juniors were promoted to Class I posts is legitimate. It is true that when the appellant was promoted to Class I on ad hoc basis his record of service in Class II post did not justify his promotion and that was the reason why he was ordered to be reverted. But that is no reason why, when his juniors were subsequently promoted to Class I posts the case of the appellant for promotion to Class I posts should not have been considered on the basis of his service in the Class I post, though his ad hoc promotion to that post was subsequently found to be not justified. If, on the basis of the subsequent record of his service, the appellant was entitled to be promoted in Class I post in preference to any one of his four juniors, there was no justification for the order reverting him to Class II service. | 1[ds]7. We think that the grievance of the appellant to the extent that his record of service in the Class I post should have been considered when his juniors were promoted to Class I posts is legitimate. It is true that when the appellant was promoted to Class I on ad hoc basis his record of service in Class II post did not justify his promotion and that was the reason why he was ordered to be reverted. But that is no reason why, when his juniors were subsequently promoted to Class I posts the case of the appellant for promotion to Class I posts should not have been considered on the basis of his service in the Class I post, though his ad hoc promotion to that post was subsequently found to be not justified. If, on the basis of the subsequent record of his service, the appellant was entitled to be promoted in Class I post in preference to any one of his four juniors, there was no justification for the order reverting him to Class II service. | 1 | 904 | 194 | ### 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:
MATHEW, J.1. The appellant filed a writ petition before the High Court of Punjab and Haryana praying for issue of a writ of certiorari or other appropriate writ or direction quashing an order reverting him from the post of Divisional Soil Conservation Officer (Class I) to the post of Assistant Soil Conservation Officer (Class II). The High Court dismissed the petition and this appeal, by special leave is from that order.2. The appellant was appointed as Assistant Soil Conservation Officer (Class II) on September 14, 1962. When the appellant was working as Class II officer, the Government confirmed five Class II officers on September 16, 1968. The appellant was not one among them. But the order of confirmation stated that one post was reserved for the appellant for his being confirmed when found suitable. One Mehtab Singh who was a junior to the appellant in the post of Assistant Soil Conservation Officer was confirmed with effect from July 10, 1968.3. The Government informed the Public Service Commission on August 1, 1969 that Mehtab Singh was eligible for promotion to the post of Divisional Soil Conservation Officer (Class I) and he was promoted to that post. On June 16, 1971, the appellant was promoted as Divisional Soil Conservation Officer (Class I) on ad hoc basis. Thereafter four of the juniors of the appellant were also promoted to the post of Divisional Soil Conservation Officer (Class I) on ad hoc basis. The appellant was confirmed as Assistant Soil Conservation Officer (Class II) on September 22, 1971 with retrospective effect from June 9, 1968. Subsequently the Government informed the Public Service Commission that as the appellant was confirmed, he became senior to Shri Mehtab Singh and therefore, the Government had decided to promote the appellant as Class I officer on regular basis. The Public Service Commission disagreed with the proposal of the Government on the basis that the appellants confirmation with effect from a date earlier than that a Mehtab Singh was not justified. The Commission also gave approval of the regularisation of Shri Mehtab Singhs promotion. On August 16, 1974 the appellant was served with an order stating that he had been reverted from the post of Divisional Soil Conservation Officer to the post of Assistant Soil Conservation Officer. As already stated, it was to quash this order that the appellant filed the writ petition.4. There is no dispute that when the appellant was promoted on ad hoc basis to the Class I post, his record of service was unsatisfactory and it was for this reason that the Public Service Commission advised that he should be reverted and that the Government passed the order reverting him to the Class II post.5. The appellants contention is that when four of his juniors were promoted on ad hoc basis as Divisional Soil Conservation Officer (Class I), his record of service in the Class I post on the basis of ad hoc promotion should have been taken into consideration in adjudging whether he was eligible for promotion to Class I post in preference to any one of them. In other words, the argument was that although he had been found unsuitable for promotion on the date when he was promoted to Class I post on ad hoc basis, that was no reason for not considering his record of service in the Class I post when his juniors were promoted to Class I posts on ad hoc basis.6. The High Court found that since the appellant was not reverted by way of punishment and the Public Service Committee did not adjudge him suitable for the post the order of reversion was not open to challenge. But the Court, however, observed :It will be open to the Government to refer the case of the petitioner to the Public Service Commission specifically for advice as to his suitability for the post of Divisional Soil Conservation Officer and thereafter to act in accordance with law.7. We think that the grievance of the appellant to the extent that his record of service in the Class I post should have been considered when his juniors were promoted to Class I posts is legitimate. It is true that when the appellant was promoted to Class I on ad hoc basis his record of service in Class II post did not justify his promotion and that was the reason why he was ordered to be reverted. But that is no reason why, when his juniors were subsequently promoted to Class I posts the case of the appellant for promotion to Class I posts should not have been considered on the basis of his service in the Class I post, though his ad hoc promotion to that post was subsequently found to be not justified. If, on the basis of the subsequent record of his service, the appellant was entitled to be promoted in Class I post in preference to any one of his four juniors, there was no justification for the order reverting him to Class II service.
### Response:
1
### Explanation:
7. We think that the grievance of the appellant to the extent that his record of service in the Class I post should have been considered when his juniors were promoted to Class I posts is legitimate. It is true that when the appellant was promoted to Class I on ad hoc basis his record of service in Class II post did not justify his promotion and that was the reason why he was ordered to be reverted. But that is no reason why, when his juniors were subsequently promoted to Class I posts the case of the appellant for promotion to Class I posts should not have been considered on the basis of his service in the Class I post, though his ad hoc promotion to that post was subsequently found to be not justified. If, on the basis of the subsequent record of his service, the appellant was entitled to be promoted in Class I post in preference to any one of his four juniors, there was no justification for the order reverting him to Class II service.
|
AMBALAL SARABHAI ENTERPRISES LTD Vs. K.S. INFRASPACE LLP | statute or the provision, the literal and strict interpretation has to be applied. It may be noted that important words used in the relevant provisions are immovable property used exclusively in trade or commerce. If the submission on behalf of the original plaintiff is accepted in that case it would be adding something in the statute which is not there in the statute, which is not permissible. On plain reading of the relevant clause it is clear that the expression used must mean actually used or being used. If the intention of the legislature was to expand the scope, in that case the phraseology used would have been different as for example, likely to be used or to be used. The word used denotes actually used and it cannot be said to be either ready for use or likely to be used; or to be used. Similar view has been taken by the Bombay High Court (Nagpur Bench) in the case of Dineshkumar Gulabchand Agrawal (Supra) and it is observed and held that the word used denotes actually used and not merely ready for use. It is reported that SLP against the said decision has been dismissed by the Honble Supreme Court. 12. Though we are informed that the said decision is assailed before this Court in a Special Leave Petition we are inclined to agree with the view expressed therein. This is for the reason that this Court while examining the issue relating to exclusive land use, though in the different context has laid emphasis on the present user of the land either for agriculture or non-agriculture purpose being relevant. In that regard, the decision relied on by the learned senior advocate for the respondent in the case of Federation of A.P. Chambers of Commerce & Industry and Ors. vs. State of A.P. and Ors., (2000) 6 SCC 550 is noticed, wherein it is observed as under: 6. Section 3 of the said Act speaks of land is used for any industrial purpose, land is used for any commercial purpose and land is used for any other non-agricultural purpose. The emphasis is on the word is used. For the purpose of levy of assessment on non-agricultural lands at the rate specified in the Schedule for land used for industrial purposes, therefore, there has to be a finding as a fact that the land is in fact in praesenti in use for an industrial purpose. The same would apply to a commercial purpose or any other non-agricultural purpose. 9. We are in no doubt whatever, therefore, that it is only land which is actually in use for an industrial purpose as defined in the said Act that can be assessed to non-agricultural assessment at the rate specified for land used for industrial purposes. The wider meaning given to the word used in the judgment under challenge is untenable. Having regard to the fact that the said Act is a taxing statute, no Court is justified in imputing to the legislature an intention that it has not clearly expressed in the language it has employed. (emphasis supplied) 13. The learned senior advocate for the appellant would however, contend that a strict interpretation as in the case of taxing statutes would not be appropriate in the instant case where the issue relates to jurisdiction. In that regard, the learned senior advocate has referred to the statement of objects and reasons with which the Commercial Courts Act, 2015 is enacted so as to provide speedy disposal of high value commercial disputes so as to create the positive image to the investors world about the independent and responsive Indian Legal System. Hence, he contends that a purposive interpretation be made. It is contended that a wider purport and meaning is to be assigned while entertaining the suit and considering the dispute to be a commercial dispute. Having taken note of the submission we feel that the very purpose for which the CC Act of 2015 has been enacted would be defeated if every other suit merely because it is filed before the Commercial Court is entertained. This is for the reason that the suits which are not actually relating to commercial dispute but being filed merely because of the high value and with the intention of seeking early disposal would only clog the system and block the way for the genuine commercial disputes which may have to be entertained by the Commercial Courts as intended by the law makers. In commercial disputes as defined a special procedure is provided for a class of litigation and a strict procedure will have to be followed to entertain only that class of litigation in that jurisdiction. If the same is strictly interpreted it is not as if those excluded will be non-suited without any remedy. The excluded class of litigation will in any event be entertained in the ordinary Civil Courts wherein the remedy has always existed. 14. In that view it is also necessary to carefully examine and entertain only disputes which actually answers the definition commercial disputes as provided under the Act. In the instant case, as already taken note neither the agreement between the parties refers to the nature of the immovable property being exclusively used for trade or commerce as on the date of the agreement nor is there any pleading to that effect in the plaint. Further the very relief sought in the suit is for execution of the Mortgage Deed which is in the nature of specific performance of the terms of Memorandum of Understanding without reference to nature of the use of the immovable property in trade or commerce as on the date of the suit. Therefore, if all these aspects are kept in view, we are of the opinion that in the present facts the High Court was justified in its conclusion arrived through the order dated 01.03.2019 impugned herein. The Commercial Court shall therefore return the plaint indicating a date for its presentation before the Court having jurisdiction. | 0[ds]10. Be that as it may, the learned senior advocates on both sides have sought to rely on the legal position decided by the various High Courts in the absence of the pronouncement of this Court. The learned senior advocate in that regard have referred to the various decisions on the same point. However, we do not find it appropriate to refer to each of them and over burden this order since we notice that the High Court in fact has referred to various decisions while deciding the instant case and has thereafter arrived at its conclusion. The discussion as made by the High Court with reference to the various decisions is also justified.11. On the other hand, the learned senior advocate for the respondents has relied on the decision of a Division Bench of the Gujarat High Court in the case of Vasu Healthcare Private Limited vs. Gujarat Akruti TCG Biotech Limited, AIR 2017 Gujarat 153 wherein a detailed consideration has been made and the conclusion reached therein by taking note of an earlier decision is that on a plain reading of Clause 2(1)(c) of CC Act, 2015 the expression used must mean actually used or being used. It is further explained that if the intention of the legislature was to expand the scope, in that case the phraseology likely to be used or to be used would have been employed. The verbatim consideration therein is as hereunder;Therefore, if the dispute falls within any of the clause 2(c) the dispute can be said to be commercial dispute for which the Commercial Court would have jurisdiction. It is required to be noted that before the learned Commercial Court the original plaintiff relied upon section 2(c)(i), 2(c)(ii) and 2(c)(xx) of the Commercial Courts Act only. Learned Counsel appearing on behalf of the original plaintiff has candidly admitted and/or conceded that the case shall not fall within clause 2(c)(i); 2(c)(ii) or 2(c)(xx) of the Commercial Courts Act. It is required to be noted that before the learned Commercial Court it was never the case on behalf of the original plaintiff that case would fall within section 2(c)(vii) of the learned Commercial Court. Despite the above we have considered on merits whether even considering section 2(c)(vii) of the Commercial Courts Act, the dispute between the parties can be said to be commercial dispute within the definition of section 2(c) of the Commercial Courts Act or not? Considering section 2(c)(vii), commercial dispute means a dispute arising out of the agreements relating to immovable property used exclusively in trade or commerce. As observed hereinabove, at the time of filing of the suit and even so pleaded in the plaint, the immovable property/plots the agreements between the parties cannot be said to be agreements relating to immovable property used exclusively in trade or commerce. As per the agreement between the party after getting the plots on lease from the GIDC, the same was required to be thereafter developed by the original defendant No. 1 and after providing all infrastructural facilities and sub-plotting it, the same is required to be given to other persons like the original plaintiff. It is the case on behalf of the original plaintiff that as the original defendant No. 1 has failed to provide any infrastructural facilities and develop the plots and therefore, a civil suit for specific performance of the agreement has been filed. There are other alternative prayers also. Therefore, it cannot be said that the agreement is as such relating to immovable property used exclusively in trade or commerce. It is the case on behalf of the original plaintiff that as in clause (vii) of section 2(c), the pharseology used is not actually used or being used and therefore, even if at present the plot is not used and even if it is likely to be used even in future, in that case also, section 2(c)(vii) shall be applicable and therefore, the Commercial Court would have jurisdiction. The aforesaid has no substance. As per the cardinal principle of law while interpreting a particular statute or the provision, the literal and strict interpretation has to be applied. It may be noted that important words used in the relevant provisions are immovable property used exclusively in trade or commerce. If the submission on behalf of the original plaintiff is accepted in that case it would be adding something in the statute which is not there in the statute, which is not permissible. On plain reading of the relevant clause it is clear that the expression used must mean actually used or being used. If the intention of the legislature was to expand the scope, in that case the phraseology used would have been different as for example, likely to be used or to be used. The word used denotes actually used and it cannot be said to be either ready for use or likely to be used; or to be used. Similar view has been taken by the Bombay High Court (Nagpur Bench) in the case of Dineshkumar Gulabchand Agrawal (Supra) and it is observed and held that the word used denotes actually used and not merely ready for use. It is reported that SLP against the said decision has been dismissed by the Honble Supreme Court12. Though we are informed that the said decision is assailed before this Court in a Special Leave Petition we are inclined to agree with the view expressed therein. This is for the reason that this Court while examining the issue relating to exclusive land use, though in the different context has laid emphasis on the present user of the land either for agriculture or non-agriculture purpose being relevantHaving taken note of the submission we feel that the very purpose for which the CC Act of 2015 has been enacted would be defeated if every other suit merely because it is filed before the Commercial Court is entertained. This is for the reason that the suits which are not actually relating to commercial dispute but being filed merely because of the high value and with the intention of seeking early disposal would only clog the system and block the way for the genuine commercial disputes which may have to be entertained by the Commercial Courts as intended by the law makers. In commercial disputes as defined a special procedure is provided for a class of litigation and a strict procedure will have to be followed to entertain only that class of litigation in that jurisdiction. If the same is strictly interpreted it is not as if those excluded will be non-suited without any remedy. The excluded class of litigation will in any event be entertained in the ordinary Civil Courts wherein the remedy has always existed | 0 | 4,004 | 1,274 | ### 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:
statute or the provision, the literal and strict interpretation has to be applied. It may be noted that important words used in the relevant provisions are immovable property used exclusively in trade or commerce. If the submission on behalf of the original plaintiff is accepted in that case it would be adding something in the statute which is not there in the statute, which is not permissible. On plain reading of the relevant clause it is clear that the expression used must mean actually used or being used. If the intention of the legislature was to expand the scope, in that case the phraseology used would have been different as for example, likely to be used or to be used. The word used denotes actually used and it cannot be said to be either ready for use or likely to be used; or to be used. Similar view has been taken by the Bombay High Court (Nagpur Bench) in the case of Dineshkumar Gulabchand Agrawal (Supra) and it is observed and held that the word used denotes actually used and not merely ready for use. It is reported that SLP against the said decision has been dismissed by the Honble Supreme Court. 12. Though we are informed that the said decision is assailed before this Court in a Special Leave Petition we are inclined to agree with the view expressed therein. This is for the reason that this Court while examining the issue relating to exclusive land use, though in the different context has laid emphasis on the present user of the land either for agriculture or non-agriculture purpose being relevant. In that regard, the decision relied on by the learned senior advocate for the respondent in the case of Federation of A.P. Chambers of Commerce & Industry and Ors. vs. State of A.P. and Ors., (2000) 6 SCC 550 is noticed, wherein it is observed as under: 6. Section 3 of the said Act speaks of land is used for any industrial purpose, land is used for any commercial purpose and land is used for any other non-agricultural purpose. The emphasis is on the word is used. For the purpose of levy of assessment on non-agricultural lands at the rate specified in the Schedule for land used for industrial purposes, therefore, there has to be a finding as a fact that the land is in fact in praesenti in use for an industrial purpose. The same would apply to a commercial purpose or any other non-agricultural purpose. 9. We are in no doubt whatever, therefore, that it is only land which is actually in use for an industrial purpose as defined in the said Act that can be assessed to non-agricultural assessment at the rate specified for land used for industrial purposes. The wider meaning given to the word used in the judgment under challenge is untenable. Having regard to the fact that the said Act is a taxing statute, no Court is justified in imputing to the legislature an intention that it has not clearly expressed in the language it has employed. (emphasis supplied) 13. The learned senior advocate for the appellant would however, contend that a strict interpretation as in the case of taxing statutes would not be appropriate in the instant case where the issue relates to jurisdiction. In that regard, the learned senior advocate has referred to the statement of objects and reasons with which the Commercial Courts Act, 2015 is enacted so as to provide speedy disposal of high value commercial disputes so as to create the positive image to the investors world about the independent and responsive Indian Legal System. Hence, he contends that a purposive interpretation be made. It is contended that a wider purport and meaning is to be assigned while entertaining the suit and considering the dispute to be a commercial dispute. Having taken note of the submission we feel that the very purpose for which the CC Act of 2015 has been enacted would be defeated if every other suit merely because it is filed before the Commercial Court is entertained. This is for the reason that the suits which are not actually relating to commercial dispute but being filed merely because of the high value and with the intention of seeking early disposal would only clog the system and block the way for the genuine commercial disputes which may have to be entertained by the Commercial Courts as intended by the law makers. In commercial disputes as defined a special procedure is provided for a class of litigation and a strict procedure will have to be followed to entertain only that class of litigation in that jurisdiction. If the same is strictly interpreted it is not as if those excluded will be non-suited without any remedy. The excluded class of litigation will in any event be entertained in the ordinary Civil Courts wherein the remedy has always existed. 14. In that view it is also necessary to carefully examine and entertain only disputes which actually answers the definition commercial disputes as provided under the Act. In the instant case, as already taken note neither the agreement between the parties refers to the nature of the immovable property being exclusively used for trade or commerce as on the date of the agreement nor is there any pleading to that effect in the plaint. Further the very relief sought in the suit is for execution of the Mortgage Deed which is in the nature of specific performance of the terms of Memorandum of Understanding without reference to nature of the use of the immovable property in trade or commerce as on the date of the suit. Therefore, if all these aspects are kept in view, we are of the opinion that in the present facts the High Court was justified in its conclusion arrived through the order dated 01.03.2019 impugned herein. The Commercial Court shall therefore return the plaint indicating a date for its presentation before the Court having jurisdiction.
### Response:
0
### Explanation:
advocate for the respondents has relied on the decision of a Division Bench of the Gujarat High Court in the case of Vasu Healthcare Private Limited vs. Gujarat Akruti TCG Biotech Limited, AIR 2017 Gujarat 153 wherein a detailed consideration has been made and the conclusion reached therein by taking note of an earlier decision is that on a plain reading of Clause 2(1)(c) of CC Act, 2015 the expression used must mean actually used or being used. It is further explained that if the intention of the legislature was to expand the scope, in that case the phraseology likely to be used or to be used would have been employed. The verbatim consideration therein is as hereunder;Therefore, if the dispute falls within any of the clause 2(c) the dispute can be said to be commercial dispute for which the Commercial Court would have jurisdiction. It is required to be noted that before the learned Commercial Court the original plaintiff relied upon section 2(c)(i), 2(c)(ii) and 2(c)(xx) of the Commercial Courts Act only. Learned Counsel appearing on behalf of the original plaintiff has candidly admitted and/or conceded that the case shall not fall within clause 2(c)(i); 2(c)(ii) or 2(c)(xx) of the Commercial Courts Act. It is required to be noted that before the learned Commercial Court it was never the case on behalf of the original plaintiff that case would fall within section 2(c)(vii) of the learned Commercial Court. Despite the above we have considered on merits whether even considering section 2(c)(vii) of the Commercial Courts Act, the dispute between the parties can be said to be commercial dispute within the definition of section 2(c) of the Commercial Courts Act or not? Considering section 2(c)(vii), commercial dispute means a dispute arising out of the agreements relating to immovable property used exclusively in trade or commerce. As observed hereinabove, at the time of filing of the suit and even so pleaded in the plaint, the immovable property/plots the agreements between the parties cannot be said to be agreements relating to immovable property used exclusively in trade or commerce. As per the agreement between the party after getting the plots on lease from the GIDC, the same was required to be thereafter developed by the original defendant No. 1 and after providing all infrastructural facilities and sub-plotting it, the same is required to be given to other persons like the original plaintiff. It is the case on behalf of the original plaintiff that as the original defendant No. 1 has failed to provide any infrastructural facilities and develop the plots and therefore, a civil suit for specific performance of the agreement has been filed. There are other alternative prayers also. Therefore, it cannot be said that the agreement is as such relating to immovable property used exclusively in trade or commerce. It is the case on behalf of the original plaintiff that as in clause (vii) of section 2(c), the pharseology used is not actually used or being used and therefore, even if at present the plot is not used and even if it is likely to be used even in future, in that case also, section 2(c)(vii) shall be applicable and therefore, the Commercial Court would have jurisdiction. The aforesaid has no substance. As per the cardinal principle of law while interpreting a particular statute or the provision, the literal and strict interpretation has to be applied. It may be noted that important words used in the relevant provisions are immovable property used exclusively in trade or commerce. If the submission on behalf of the original plaintiff is accepted in that case it would be adding something in the statute which is not there in the statute, which is not permissible. On plain reading of the relevant clause it is clear that the expression used must mean actually used or being used. If the intention of the legislature was to expand the scope, in that case the phraseology used would have been different as for example, likely to be used or to be used. The word used denotes actually used and it cannot be said to be either ready for use or likely to be used; or to be used. Similar view has been taken by the Bombay High Court (Nagpur Bench) in the case of Dineshkumar Gulabchand Agrawal (Supra) and it is observed and held that the word used denotes actually used and not merely ready for use. It is reported that SLP against the said decision has been dismissed by the Honble Supreme Court12. Though we are informed that the said decision is assailed before this Court in a Special Leave Petition we are inclined to agree with the view expressed therein. This is for the reason that this Court while examining the issue relating to exclusive land use, though in the different context has laid emphasis on the present user of the land either for agriculture or non-agriculture purpose being relevantHaving taken note of the submission we feel that the very purpose for which the CC Act of 2015 has been enacted would be defeated if every other suit merely because it is filed before the Commercial Court is entertained. This is for the reason that the suits which are not actually relating to commercial dispute but being filed merely because of the high value and with the intention of seeking early disposal would only clog the system and block the way for the genuine commercial disputes which may have to be entertained by the Commercial Courts as intended by the law makers. In commercial disputes as defined a special procedure is provided for a class of litigation and a strict procedure will have to be followed to entertain only that class of litigation in that jurisdiction. If the same is strictly interpreted it is not as if those excluded will be non-suited without any remedy. The excluded class of litigation will in any event be entertained in the ordinary Civil Courts wherein the remedy has always existed
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Homely Industries Vs. The Sales Tax Officer, Sector V, Kanpur | been acceded to. We, however, express no opinion on the merits of their claim. 14. Mr. Dikshit appearing on behalf of the respondents strenuously contends that the word "may" in Section 7C (3) makes it optional for the Sales Tax Officer to give or not to give notice to the legal representative for production of documents after death of an assessee. We are unable to accede to this submission. 15. The scheme of the relevant provisions of the Act is as follows :"Omitting the non-essentials for the purpose of this case, under sub-section (1) of Section 7 a return is required to be submitted by a dealer showing his turnover. Under sub-section (2) of Section 7, if the Sales Tax Officer is satisfied that the return submitted by a dealer is correct and complete he shall assess the tax on the basis of that return. Under sub-section (3) of Section 7 read with the proviso, if, according to the Officer, the return submitted by a dealer is incorrect or incomplete, he shall make what is called, a best judgment assessment after making such enquiry as he considers necessary but must, under the proviso thereto give a reasonable opportunity to the dealer to prove the correctness and completeness of the return submitted by him." 16. So far as material for the purpose of this case, Section 7C (3), properly construed, provides, inter alia, that if a person dies after furnishing a return and his return, which was submitted, is not accepted by the Officer as correct or complete, the obligation to give a reasonable opportunity to prove the correctness and completeness of the return under Section 7 (3) read with the proviso cannot be given a go-by if the person who submitted the return dies without a notice having been given for such an opportunity. The word "may" is Section 7C (3) does not clothe the Sales Tax Officer with arbitrary power of assessment without notice to the legal representative to produce evidence or documents which, if the dealer were alive, he would have been entitled to do under Section 7 (3) read with the proviso. The submission of Mr. Dikshit is, therefore, devoid of substance. 17. In the view we have taken that no fresh notice to the legal representative was called for prior to the passing of the assessment orders in this case, we are not called upon to decide whether the legal representatives had waived their right to notice as urged in the alternative by Mr. Dikshit. 18. We may now deal with the second submission of Mr. Manchanda that no recovery proceedings could be instituted unless a notice of demand had been served on the legal representative under Section 8 of the Act. That section reads as under :"8. (1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, not being less than fifteen days from the date of service of the notice of assessment, as may be specified in the notice. In default of such payment, the whole of the amount then remaining due shall become recoverable in accordance with sub-section (2). (2) Any tax or other dues payable to the State Government under this Act shall be recoverable as arrears of land revenue." 19. It is clear that before a certificate proceeding can be instituted under sub-section (2) of Section 8 a notice of demand under sub-s. (1) thereof is a condition precedent. There can be no recovery without service of a demand notice. It is admitted that such notice has not been served on the legal representatives. That being the position the recovery proceedings are not maintainable in law and are invalid and the same along with the certificates are liable to be quashed. 20. Mr. Dikshit has drawn our attention to a decision of this Court in Sahu Rajeshwar Nath vs. Income-tax Officer, C. Ward, Meerut, 72 ITR 617 and submitted that this decision is an authority for the proposition that no notice on the legal representative is required under the law prior to the institution of recovery proceedings by certificate. 21. In that case this Court was considering the liability of a partner of an unregistered firm which was the assessee and a notice under Section 29 of the Income-tax Act, 1922, had been served on the unregistered firm and all the tax assessed against the firm was sought to be recovered from the partner in proceedings under Section 46 (2) of the Income-tax Act. It was contended on behalf of the partner that a fresh notice of demand upon the partner was necessary under the law and in its absence the recovery proceedings were invalid. This Court repelled the contention holding that although the unregistered firm was the assessee the partner was liable under Section 25 of the Partnership Act and since the appellant, therein, conceded that he was a partner of that firm during the accounting year, no separate notice under Section 29 of the Income-tax Act upon the partner was necessary. It was further held that the notice contemplated under Section 29 of the Income-tax Act, 1922, was to the assessee or to any other person liable and "any other person liable under Section 29" meant "liable under the Income-tax Act" and not under any other law such as the Partnership Act. 22. That was a case where no question arose about the liability of the appellant therein under the provisions of the Income-tax Act such as Section 24B of the Income-tax Act, 1922, which is almost identical with Section 7C (1) of the Act and that because of that under Section 29 of the Income-Tax Act a notice of demand was obligatory as a condition precedent to the institution of certificate proceedings for recovery of the dues as arrears of land revenue. The aforesaid decision of this Court in Sahu Rajeshwar Naths case, 72 ITR 617 is, therefore, of no assistance to the learned Counsel. | 1[ds]Section 7C (3) does not entitle the legal representatives to any notice which the deceased, if alive, would not have been entitled to under the provisions of the Act. Since there was no obligation under the Act for service of a second notice on the dealer, if he were alive, the legal representatives were not entitled to a notice as claimed under Section 7C (3) of the Act. The orders of assessment cannot, therefore, be held to be invalid on account of non-service of notice for production of documents upon the legal representatives in this case. Besides, we find that the legal representatives were aware of the proceedings and took several adjournments and if they did not choose to produce any further evidence it was entirely their fault and they cannot blame the Officer when the request for adjournment was not granted after so many requests had already been acceded to. We, however, express no opinion on the merits of their claim17. In the view we have taken that no fresh notice to the legal representative was called for prior to the passing of the assessment orders in this case, we are not called upon to decide whether the legal representatives had waived their right to notice as urged in the alternative by Mr. Dikshit18. We may now deal with the second submission of Mr. Manchanda that no recovery proceedings could be instituted unless a notice of demand had been served on the legal representative under Section 8 of the Act19. It is clear that before a certificate proceeding can be instituted under sub-section (2) of Section 8 a notice of demand under sub-s. (1) thereof is a condition precedent. There can be no recovery without service of a demand notice. It is admitted that such notice has not been served on the legal representatives. That being the position the recovery proceedings are not maintainable in law and are invalid and the same along with the certificates are liable to be quashed20. Mr. Dikshit has drawn our attention to a decision of this Court in Sahu Rajeshwar Nath vs. Income-tax Officer, C. Ward, Meerut, 72 ITR 617 and submitted that this decision is an authority for the proposition that no notice on the legal representative is required under the law prior to the institution of recovery proceedings by certificate21. In that case this Court was considering the liability of a partner of an unregistered firm which was the assessee and a notice under Section 29 of the Income-tax Act, 1922, had been served on the unregistered firm and all the tax assessed against the firm was sought to be recovered from the partner in proceedings under Section 46 (2) of the Income-tax Act. It was contended on behalf of the partner that a fresh notice of demand upon the partner was necessary under the law and in its absence the recovery proceedings were invalid. This Court repelled the contention holding that although the unregistered firm was the assessee the partner was liable under Section 25 of the Partnership Act and since the appellant, therein, conceded that he was a partner of that firm during the accounting year, no separate notice under Section 29 of the Income-tax Act upon the partner was necessary. It was further held that the notice contemplated under Section 29 of the Income-tax Act, 1922, was to the assessee or to any other person liable and "any other person liable under Section 29" meant "liable under the Income-tax Act" and not under any other law such as the Partnership Act22. That was a case where no question arose about the liability of the appellant therein under the provisions of the Income-tax Act such as Section 24B of the Income-tax Act, 1922, which is almost identical with Section 7C (1) of the Act and that because of that under Section 29 of the Income-Tax Act a notice of demand was obligatory as a condition precedent to the institution of certificate proceedings for recovery of the dues as arrears of land revenue. The aforesaid decision of this Court in Sahu Rajeshwar Naths case, 72 ITR 617 is, therefore, of no assistance to the learned Counsel | 1 | 2,842 | 761 | ### 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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been acceded to. We, however, express no opinion on the merits of their claim. 14. Mr. Dikshit appearing on behalf of the respondents strenuously contends that the word "may" in Section 7C (3) makes it optional for the Sales Tax Officer to give or not to give notice to the legal representative for production of documents after death of an assessee. We are unable to accede to this submission. 15. The scheme of the relevant provisions of the Act is as follows :"Omitting the non-essentials for the purpose of this case, under sub-section (1) of Section 7 a return is required to be submitted by a dealer showing his turnover. Under sub-section (2) of Section 7, if the Sales Tax Officer is satisfied that the return submitted by a dealer is correct and complete he shall assess the tax on the basis of that return. Under sub-section (3) of Section 7 read with the proviso, if, according to the Officer, the return submitted by a dealer is incorrect or incomplete, he shall make what is called, a best judgment assessment after making such enquiry as he considers necessary but must, under the proviso thereto give a reasonable opportunity to the dealer to prove the correctness and completeness of the return submitted by him." 16. So far as material for the purpose of this case, Section 7C (3), properly construed, provides, inter alia, that if a person dies after furnishing a return and his return, which was submitted, is not accepted by the Officer as correct or complete, the obligation to give a reasonable opportunity to prove the correctness and completeness of the return under Section 7 (3) read with the proviso cannot be given a go-by if the person who submitted the return dies without a notice having been given for such an opportunity. The word "may" is Section 7C (3) does not clothe the Sales Tax Officer with arbitrary power of assessment without notice to the legal representative to produce evidence or documents which, if the dealer were alive, he would have been entitled to do under Section 7 (3) read with the proviso. The submission of Mr. Dikshit is, therefore, devoid of substance. 17. In the view we have taken that no fresh notice to the legal representative was called for prior to the passing of the assessment orders in this case, we are not called upon to decide whether the legal representatives had waived their right to notice as urged in the alternative by Mr. Dikshit. 18. We may now deal with the second submission of Mr. Manchanda that no recovery proceedings could be instituted unless a notice of demand had been served on the legal representative under Section 8 of the Act. That section reads as under :"8. (1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, not being less than fifteen days from the date of service of the notice of assessment, as may be specified in the notice. In default of such payment, the whole of the amount then remaining due shall become recoverable in accordance with sub-section (2). (2) Any tax or other dues payable to the State Government under this Act shall be recoverable as arrears of land revenue." 19. It is clear that before a certificate proceeding can be instituted under sub-section (2) of Section 8 a notice of demand under sub-s. (1) thereof is a condition precedent. There can be no recovery without service of a demand notice. It is admitted that such notice has not been served on the legal representatives. That being the position the recovery proceedings are not maintainable in law and are invalid and the same along with the certificates are liable to be quashed. 20. Mr. Dikshit has drawn our attention to a decision of this Court in Sahu Rajeshwar Nath vs. Income-tax Officer, C. Ward, Meerut, 72 ITR 617 and submitted that this decision is an authority for the proposition that no notice on the legal representative is required under the law prior to the institution of recovery proceedings by certificate. 21. In that case this Court was considering the liability of a partner of an unregistered firm which was the assessee and a notice under Section 29 of the Income-tax Act, 1922, had been served on the unregistered firm and all the tax assessed against the firm was sought to be recovered from the partner in proceedings under Section 46 (2) of the Income-tax Act. It was contended on behalf of the partner that a fresh notice of demand upon the partner was necessary under the law and in its absence the recovery proceedings were invalid. This Court repelled the contention holding that although the unregistered firm was the assessee the partner was liable under Section 25 of the Partnership Act and since the appellant, therein, conceded that he was a partner of that firm during the accounting year, no separate notice under Section 29 of the Income-tax Act upon the partner was necessary. It was further held that the notice contemplated under Section 29 of the Income-tax Act, 1922, was to the assessee or to any other person liable and "any other person liable under Section 29" meant "liable under the Income-tax Act" and not under any other law such as the Partnership Act. 22. That was a case where no question arose about the liability of the appellant therein under the provisions of the Income-tax Act such as Section 24B of the Income-tax Act, 1922, which is almost identical with Section 7C (1) of the Act and that because of that under Section 29 of the Income-Tax Act a notice of demand was obligatory as a condition precedent to the institution of certificate proceedings for recovery of the dues as arrears of land revenue. The aforesaid decision of this Court in Sahu Rajeshwar Naths case, 72 ITR 617 is, therefore, of no assistance to the learned Counsel.
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Section 7C (3) does not entitle the legal representatives to any notice which the deceased, if alive, would not have been entitled to under the provisions of the Act. Since there was no obligation under the Act for service of a second notice on the dealer, if he were alive, the legal representatives were not entitled to a notice as claimed under Section 7C (3) of the Act. The orders of assessment cannot, therefore, be held to be invalid on account of non-service of notice for production of documents upon the legal representatives in this case. Besides, we find that the legal representatives were aware of the proceedings and took several adjournments and if they did not choose to produce any further evidence it was entirely their fault and they cannot blame the Officer when the request for adjournment was not granted after so many requests had already been acceded to. We, however, express no opinion on the merits of their claim17. In the view we have taken that no fresh notice to the legal representative was called for prior to the passing of the assessment orders in this case, we are not called upon to decide whether the legal representatives had waived their right to notice as urged in the alternative by Mr. Dikshit18. We may now deal with the second submission of Mr. Manchanda that no recovery proceedings could be instituted unless a notice of demand had been served on the legal representative under Section 8 of the Act19. It is clear that before a certificate proceeding can be instituted under sub-section (2) of Section 8 a notice of demand under sub-s. (1) thereof is a condition precedent. There can be no recovery without service of a demand notice. It is admitted that such notice has not been served on the legal representatives. That being the position the recovery proceedings are not maintainable in law and are invalid and the same along with the certificates are liable to be quashed20. Mr. Dikshit has drawn our attention to a decision of this Court in Sahu Rajeshwar Nath vs. Income-tax Officer, C. Ward, Meerut, 72 ITR 617 and submitted that this decision is an authority for the proposition that no notice on the legal representative is required under the law prior to the institution of recovery proceedings by certificate21. In that case this Court was considering the liability of a partner of an unregistered firm which was the assessee and a notice under Section 29 of the Income-tax Act, 1922, had been served on the unregistered firm and all the tax assessed against the firm was sought to be recovered from the partner in proceedings under Section 46 (2) of the Income-tax Act. It was contended on behalf of the partner that a fresh notice of demand upon the partner was necessary under the law and in its absence the recovery proceedings were invalid. This Court repelled the contention holding that although the unregistered firm was the assessee the partner was liable under Section 25 of the Partnership Act and since the appellant, therein, conceded that he was a partner of that firm during the accounting year, no separate notice under Section 29 of the Income-tax Act upon the partner was necessary. It was further held that the notice contemplated under Section 29 of the Income-tax Act, 1922, was to the assessee or to any other person liable and "any other person liable under Section 29" meant "liable under the Income-tax Act" and not under any other law such as the Partnership Act22. That was a case where no question arose about the liability of the appellant therein under the provisions of the Income-tax Act such as Section 24B of the Income-tax Act, 1922, which is almost identical with Section 7C (1) of the Act and that because of that under Section 29 of the Income-Tax Act a notice of demand was obligatory as a condition precedent to the institution of certificate proceedings for recovery of the dues as arrears of land revenue. The aforesaid decision of this Court in Sahu Rajeshwar Naths case, 72 ITR 617 is, therefore, of no assistance to the learned Counsel
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S. SUBRAMANIAN Vs. S. RAMASAMY AND ORS | has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held :?Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.?8.4 Applying the law laid down by this Court in the aforesaid decisions and the substantial questions of law formulated/framed and answered by the High Court, reproduced hereinabove, it cannot be said that the said questions of law can be said to be substantial questions of law. All can be said to be questions of law or questions of fact and cannot be said to be Substantial Questions of law.8.5 As observed hereinabove, while passing the impugned Judgment and Order, the High Court has re¬appreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re¬ appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re-appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC.9. Even otherwise, on merits also, the High Court has erred in holding that there was blending of the suit properties with the joint family properties by Sengoda Gounder. It is an admitted position that and even as observed and held by the High Court, the suit properties were self¬acquired properties of Sengoda Gounder pursuant to the Settlement Deed Exhibit A1 dated 07.04.1956 as the properties were obtained by Sengoda Gounder not from his direct male ancestors but from his mother?s sister?s husband. High Court also held that when some of the properties were sold, some of these properties specified in Exhibit A1 dated 07.04.1956-Settlement Deed were sold, in the recitals it was mentioned that the properties sold for urgent necessity of family expenses and farm expenses and it was mentioned that the same properties were belonging to them jointly through their ancestors However, considering the documentary evidence, more particularly, the settlement deeds Exhibits A13 and A14 and Exhibit B24, Will, executed by the Sengoda Gounder himself, by which the same properties were given to the original defendant¬ his son Subramanian, the intention of the father¬Sengoda Gounder was very clear and the suit properties were treated as the self-acquired properties and not the joint family properties.9.1 Even the reasons given by the High Court that as the loans were taken on the suit properties for borewell, crop loan, electric motor pump set loan, jewel loan by all the three joint family members, namely Sengoda Gounder, Ramasamy and Subramanian and, therefore, there was a blending of the suit properties into join family properties also, cannot be accepted. As all the three were residing together and some loans might have been taken by the family members residing together, by that itself, it cannot be said that there was a blending of the suit properties into joint family properties. The law on the aspect of blending is well settled that property separate or self¬acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon the separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilisation of income of the separate property out of generosity to support the family members. At this stage, it is required to be noted that there was a serious dispute regarding who repaid the loan. It was the plaintiff who claimed that he only discharged that loan, however, the defendant Subramanian contended that the loan was discharged by Sengoda Gounder from out of the income derived by him from the suit properties itself. In any case, when on appreciation of evidence on record including the documentary evidence which came to be re¬ appreciated by the High Court, both the Courts below came to the conclusion that there was no blending of the suit properties into joint family properties, the High Court in exercise of its powers under Section 100 of the CPC, is not justified in reversing those findings which were on appreciation of evidence on record. | 1[ds]8.1 At the outset, it is required to be noted that as such, both, the learned Trial Court as well as the First Appellate Court dismissed the suits, more particularly, the suit for partition filed by the original plaintiff by holding that the suit properties were not ancestral properties of Sengoda Gounder but were self¬ acquired properties of Sengoda Gounder. That on appreciation of evidence, both the Courts below specifically came to the conclusion that, as such, there was no blending of the suit properties with the ancestral properties by Sengoda Gounder. However, the said findings recorded by both the Courts below have been upset and set aside by the High Court, while deciding the second appeals in exercise of its powers under Section 100 of the CPC. We have gone through and considered the findings recorded by the learned Trial Court as well as the First Appellate Court. On appreciation of entire evidence on record, more particularly, the documentary evidence which came to be considered by the High Court as Exhibit A1 and Exhibits A 19, 24, 45 and 46, thereafter both the Courts below came to the conclusion that there was no blending or treating of the suit property as a joint family property. Despite the above, the High Court while passing the impugned common Judgment and Order, has re-appreciated the entire evidence on record including the documentary evidence which as such were considered by both the Courts below and has upset the findings of facts recorded by both the Courts below on the blending of suit property as a joint family property and has given its own findings, which in exercise of its powers under Section 100 of the CPC is wholly impermissible. As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to re¬appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.8.2 Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of ‘a substantial question of law? is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:(i) Contrary to the mandatory provisions of the applicable law; OR(ii) Contrary to the law as pronounced by the Apex Court; OR(iii) Based on in-admissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in SecondApplying the law laid down by this Court in the aforesaid decisions and the substantial questions of law formulated/framed and answered by the High Court, reproduced hereinabove, it cannot be said that the said questions of law can be said to be substantial questions of law. All can be said to be questions of law or questions of fact and cannot be said to be Substantial Questions of law.8.5 As observed hereinabove, while passing the impugned Judgment and Order, the High Court has re¬appreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re¬ appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re-appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC.9. Even otherwise, on merits also, the High Court has erred in holding that there was blending of the suit properties with the joint family properties by Sengoda Gounder. It is an admitted position that and even as observed and held by the High Court, the suit properties were self¬acquired properties of Sengoda Gounder pursuant to the Settlement Deed Exhibit A1 dated 07.04.1956 as the properties were obtained by Sengoda Gounder not from his direct male ancestors but from his mother?s sister?s husband. High Court also held that when some of the properties were sold, some of these properties specified in Exhibit A1 dated 07.04.1956-Settlement Deed were sold, in the recitals it was mentioned that the properties sold for urgent necessity of family expenses and farm expenses and it was mentioned that the same properties were belonging to them jointly through their ancestors However, considering the documentary evidence, more particularly, the settlement deeds Exhibits A13 and A14 and Exhibit B24, Will, executed by the Sengoda Gounder himself, by which the same properties were given to the original defendant¬ his son Subramanian, the intention of the father¬Sengoda Gounder was very clear and the suit properties were treated as the self-acquired properties and not the joint family properties.9.1 Even the reasons given by the High Court that as the loans were taken on the suit properties for borewell, crop loan, electric motor pump set loan, jewel loan by all the three joint family members, namely Sengoda Gounder, Ramasamy and Subramanian and, therefore, there was a blending of the suit properties into join family properties also, cannot be accepted. As all the three were residing together and some loans might have been taken by the family members residing together, by that itself, it cannot be said that there was a blending of the suit properties into joint family properties. The law on the aspect of blending is well settled that property separate or self¬acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon the separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilisation of income of the separate property out of generosity to support the family members. At this stage, it is required to be noted that there was a serious dispute regarding who repaid the loan. It was the plaintiff who claimed that he only discharged that loan, however, the defendant Subramanian contended that the loan was discharged by Sengoda Gounder from out of the income derived by him from the suit properties itself. In any case, when on appreciation of evidence on record including the documentary evidence which came to be re¬ appreciated by the High Court, both the Courts below came to the conclusion that there was no blending of the suit properties into joint family properties, the High Court in exercise of its powers under Section 100 of the CPC, is not justified in reversing those findings which were on appreciation of evidence on record. | 1 | 4,923 | 1,583 | ### Instruction:
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has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held :?Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.?8.4 Applying the law laid down by this Court in the aforesaid decisions and the substantial questions of law formulated/framed and answered by the High Court, reproduced hereinabove, it cannot be said that the said questions of law can be said to be substantial questions of law. All can be said to be questions of law or questions of fact and cannot be said to be Substantial Questions of law.8.5 As observed hereinabove, while passing the impugned Judgment and Order, the High Court has re¬appreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re¬ appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re-appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC.9. Even otherwise, on merits also, the High Court has erred in holding that there was blending of the suit properties with the joint family properties by Sengoda Gounder. It is an admitted position that and even as observed and held by the High Court, the suit properties were self¬acquired properties of Sengoda Gounder pursuant to the Settlement Deed Exhibit A1 dated 07.04.1956 as the properties were obtained by Sengoda Gounder not from his direct male ancestors but from his mother?s sister?s husband. High Court also held that when some of the properties were sold, some of these properties specified in Exhibit A1 dated 07.04.1956-Settlement Deed were sold, in the recitals it was mentioned that the properties sold for urgent necessity of family expenses and farm expenses and it was mentioned that the same properties were belonging to them jointly through their ancestors However, considering the documentary evidence, more particularly, the settlement deeds Exhibits A13 and A14 and Exhibit B24, Will, executed by the Sengoda Gounder himself, by which the same properties were given to the original defendant¬ his son Subramanian, the intention of the father¬Sengoda Gounder was very clear and the suit properties were treated as the self-acquired properties and not the joint family properties.9.1 Even the reasons given by the High Court that as the loans were taken on the suit properties for borewell, crop loan, electric motor pump set loan, jewel loan by all the three joint family members, namely Sengoda Gounder, Ramasamy and Subramanian and, therefore, there was a blending of the suit properties into join family properties also, cannot be accepted. As all the three were residing together and some loans might have been taken by the family members residing together, by that itself, it cannot be said that there was a blending of the suit properties into joint family properties. The law on the aspect of blending is well settled that property separate or self¬acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon the separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilisation of income of the separate property out of generosity to support the family members. At this stage, it is required to be noted that there was a serious dispute regarding who repaid the loan. It was the plaintiff who claimed that he only discharged that loan, however, the defendant Subramanian contended that the loan was discharged by Sengoda Gounder from out of the income derived by him from the suit properties itself. In any case, when on appreciation of evidence on record including the documentary evidence which came to be re¬ appreciated by the High Court, both the Courts below came to the conclusion that there was no blending of the suit properties into joint family properties, the High Court in exercise of its powers under Section 100 of the CPC, is not justified in reversing those findings which were on appreciation of evidence on record.
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1
### Explanation:
under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:(i) Contrary to the mandatory provisions of the applicable law; OR(ii) Contrary to the law as pronounced by the Apex Court; OR(iii) Based on in-admissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in SecondApplying the law laid down by this Court in the aforesaid decisions and the substantial questions of law formulated/framed and answered by the High Court, reproduced hereinabove, it cannot be said that the said questions of law can be said to be substantial questions of law. All can be said to be questions of law or questions of fact and cannot be said to be Substantial Questions of law.8.5 As observed hereinabove, while passing the impugned Judgment and Order, the High Court has re¬appreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re¬ appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re-appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC.9. Even otherwise, on merits also, the High Court has erred in holding that there was blending of the suit properties with the joint family properties by Sengoda Gounder. It is an admitted position that and even as observed and held by the High Court, the suit properties were self¬acquired properties of Sengoda Gounder pursuant to the Settlement Deed Exhibit A1 dated 07.04.1956 as the properties were obtained by Sengoda Gounder not from his direct male ancestors but from his mother?s sister?s husband. High Court also held that when some of the properties were sold, some of these properties specified in Exhibit A1 dated 07.04.1956-Settlement Deed were sold, in the recitals it was mentioned that the properties sold for urgent necessity of family expenses and farm expenses and it was mentioned that the same properties were belonging to them jointly through their ancestors However, considering the documentary evidence, more particularly, the settlement deeds Exhibits A13 and A14 and Exhibit B24, Will, executed by the Sengoda Gounder himself, by which the same properties were given to the original defendant¬ his son Subramanian, the intention of the father¬Sengoda Gounder was very clear and the suit properties were treated as the self-acquired properties and not the joint family properties.9.1 Even the reasons given by the High Court that as the loans were taken on the suit properties for borewell, crop loan, electric motor pump set loan, jewel loan by all the three joint family members, namely Sengoda Gounder, Ramasamy and Subramanian and, therefore, there was a blending of the suit properties into join family properties also, cannot be accepted. As all the three were residing together and some loans might have been taken by the family members residing together, by that itself, it cannot be said that there was a blending of the suit properties into joint family properties. The law on the aspect of blending is well settled that property separate or self¬acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon the separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilisation of income of the separate property out of generosity to support the family members. At this stage, it is required to be noted that there was a serious dispute regarding who repaid the loan. It was the plaintiff who claimed that he only discharged that loan, however, the defendant Subramanian contended that the loan was discharged by Sengoda Gounder from out of the income derived by him from the suit properties itself. In any case, when on appreciation of evidence on record including the documentary evidence which came to be re¬ appreciated by the High Court, both the Courts below came to the conclusion that there was no blending of the suit properties into joint family properties, the High Court in exercise of its powers under Section 100 of the CPC, is not justified in reversing those findings which were on appreciation of evidence on record.
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DR. S.K.JHUNJHUNWALA Vs. MRS. DHANWANTI KUMAR | remained inside. In other words, respondent No.1 failed to prove with the aid of any medical evidence that the stones, which were noticed in the second surgery performed after 11 months, were the same stones which the appellant failed to remove from the Gall Bladder. It is apposite to note the finding of the National Commission in para 19 hereinbelow.".........We have already found that from the material placed on record that it is not possible to hold with certainty that any of the calculi which were removed from the bile duct of the complainant at Sir Ganga Ram Hospital was the same for which she had undergone Cholecystectomy at the hands of the surgeon and, therefore, the only lapse which we can find on the part of the surgeon is that he did not care to bestow the kind of attention which the problem of complainant required when she consulted him after the procedure of Cholecystectomy, more particularly during AprilMay 1997.........."42. Had it been so, the appellant could be held liable for failure on his part to remove the stones and allowed them to remain in the Gall Bladder for such a long time. There was no medical evidence adduced by respondent No.1 to prove this fact.43. In our opinion, no medical evidence of any expert was adduced by respondent No.1 to prove any specific kind of negligence on the part of the appellant in performing the surgery (conventional surgery) of Gall Bladder except raising the issue of "nongiving of express consent". This issue we have already dealt with above and found no merit therein. In our view, respondent No.1 was under legal obligation to prove a specific kind of negligence on the part of the appellant in performing the surgery and also was required to prove that any subsequent ailment which she suffered on her return to home such as, jaundice, dysentery, fever, loss of weight etc. were suffered by her only due to improper performance of conventional surgery by the appellant and if the surgery had been successful, she would not have suffered any kind of these ailments.44. In our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient.45. In our considered opinion, respondent No. 1 was not able to prove that the ailments which she suffered after she returned home from the Hospital on 08.08.1996 were as a result of faulty surgery performed by the appellant.46. Learned counsel for respondent No.1 (complainant) vehemently argued that respondent No.1 suffered immensely due to the surgery performed by the appellant and that she was rightly, therefore, awarded the compensation by the National Commission.47. Learned counsel for respondent No.1 also placed reliance on the Discharge Certificate which, according to her, mentions that Laparoscopy surgery was performed on respondent No.1. On this basis, learned counsel contended that respondent No.1 had not given her consent for performing general surgery.48. In the light of the detailed discussion made above on the issues arising in the case including the issue of grant of consent, we are unable to accept the aforesaid submissions of learned counsel for respondent No.1.49. It is apt to remember the words of the then Chief Justice of India when he said in Jacob Mathews case (supra) which reads as under:"The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctors contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an indepth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability."50. In the light of what we have held above, we cannot concur with the reasoning and the conclusion arrived at by the National Commission. | 1[ds]24. In our view, the facts of the case at hand has to be examined in the light of the aforesaid principle of law with a view to find out as to whether thedoctor by profession and who treated respondent No.1 and performed surgery on her could be held negligent in performing the general surgery of her Gall Bladder on 08.08.1996.These undisputed facts, in our opinion, clearly prove that the appellant is a qualified senior doctor with an experience in the field and had also possessed the requisite knowledge and skill in the subject to perform the surgery of Gall Bladder.The State Commission did not accept the aforementioned submission of respondent No.1 but this submission found favour to the National Commission for holding the appellant guilty of negligence in performance of his duty in performing the surgery. We do not agree with the reasoning of the National Commission on this issue for more than one reason mentioned below.In other words, we are of the view that there was no need to have another Consent Form to do the conventional surgery in the light of authorization contained in clause 4 itself because the substitute operation was of a same organ for which the former one was advised except with a difference of another well known method known in medical subject to get rid of the malady.Third, there is an evidence on record and we are inclined to accept the evidence that the appellant having noticed while performing laparoscopy that there was some inflammation, adhesion and swelling on Gall Bladder, he came out of operation theater and informed respondent No.1s husband who was sitting outside the operation theater about what the condition of respondent No.1s gall bladder and sought his consent to perform the substitute operation. It is only after the consent given by the husband of respondent No.1, the appellant proceeded to do conventional surgery.In our opinion, there is no reason to disbelieve this fact stated by the appellant in his evidence. It is, in our opinion, a natural conduct and the behavior of any prudent doctor, who is performing the operation to apprise the attending persons of what he noticed in the patient and then go ahead accordingly to complete the operation.It is not the case of respondent No.1 that her husband was neither present in the hospital on that day nor he was not sitting outside the Operation Theater and nor he ever met the appellant on that day.In our opinion, a clear case of grant of consent to the appellant to perform the substituted operation of Gall Bladder of respondent No.1 was, therefore, made out to enable the appellant to perform the conventional surgery, which he actually performed.In our opinion, the case of the appellant also falls in the excepted category mentioned by this Court because the appellant having noticed the abnormalities in the Gall Bladder while performing laparoscopy surgery proceeded to perform the conventional surgery and that too after obtaining fresh consent of respondenthusband. In other words, it was not an unauthorized act of the appellant and he could legally perform on the basis of original consent (clause 4) of respondent No.1 as also on the basis of the further consent given by the respondent. That apart, we also find that respondent No.1 never raised the objection ofto the appellant or/and opposite party respondent No.2Hospital and it was for the first time in the complaint, she raised this issue and made a foundation to claim compensation from the appellant. Nothing prevented her or her husband to raise the issue of consent immediately after performance the surgery while she was in hospital as an indoor patient and even after discharge that being the natural conduct of any patient. It was, however, not done.In our opinion, no medical evidence of any expert was adduced by respondent No.1 to prove any specific kind of negligence on the part of the appellant in performing the surgery (conventionalsurgery) of Gall Bladder except raising the issue ofThis issue we have already dealt with above and found no merit therein. In our view, respondent No.1 was under legal obligation to prove a specific kind of negligence on the part of the appellant in performing the surgery and also was required to prove that any subsequent ailment which she suffered on her return to home such as, jaundice, dysentery, fever, loss of weight etc. were suffered by her only due to improper performance of conventional surgery by the appellant and if the surgery had been successful, she would not have suffered any kind of these ailments.In our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient.In our considered opinion, respondent No. 1 was not able to prove that the ailments which she suffered after she returned home from the Hospital on 08.08.1996 were as a result of faulty surgery performed by the appellant.In the light of the detailed discussion made above on the issues arising in the case including the issue of grant of consent, we are unable to accept the aforesaid submissions of learned counsel for respondent No.1.It is apt to remember the words of the then Chief Justice of India when he said in Jacobcase (supra) which reads assubject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution.For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which thecontribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life.The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body andmedical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires anunderstanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.In the light of what we have held above, we cannot concur with the reasoning and the conclusion arrived at by the National Commission. | 1 | 4,880 | 1,409 | ### Instruction:
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remained inside. In other words, respondent No.1 failed to prove with the aid of any medical evidence that the stones, which were noticed in the second surgery performed after 11 months, were the same stones which the appellant failed to remove from the Gall Bladder. It is apposite to note the finding of the National Commission in para 19 hereinbelow.".........We have already found that from the material placed on record that it is not possible to hold with certainty that any of the calculi which were removed from the bile duct of the complainant at Sir Ganga Ram Hospital was the same for which she had undergone Cholecystectomy at the hands of the surgeon and, therefore, the only lapse which we can find on the part of the surgeon is that he did not care to bestow the kind of attention which the problem of complainant required when she consulted him after the procedure of Cholecystectomy, more particularly during AprilMay 1997.........."42. Had it been so, the appellant could be held liable for failure on his part to remove the stones and allowed them to remain in the Gall Bladder for such a long time. There was no medical evidence adduced by respondent No.1 to prove this fact.43. In our opinion, no medical evidence of any expert was adduced by respondent No.1 to prove any specific kind of negligence on the part of the appellant in performing the surgery (conventional surgery) of Gall Bladder except raising the issue of "nongiving of express consent". This issue we have already dealt with above and found no merit therein. In our view, respondent No.1 was under legal obligation to prove a specific kind of negligence on the part of the appellant in performing the surgery and also was required to prove that any subsequent ailment which she suffered on her return to home such as, jaundice, dysentery, fever, loss of weight etc. were suffered by her only due to improper performance of conventional surgery by the appellant and if the surgery had been successful, she would not have suffered any kind of these ailments.44. In our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient.45. In our considered opinion, respondent No. 1 was not able to prove that the ailments which she suffered after she returned home from the Hospital on 08.08.1996 were as a result of faulty surgery performed by the appellant.46. Learned counsel for respondent No.1 (complainant) vehemently argued that respondent No.1 suffered immensely due to the surgery performed by the appellant and that she was rightly, therefore, awarded the compensation by the National Commission.47. Learned counsel for respondent No.1 also placed reliance on the Discharge Certificate which, according to her, mentions that Laparoscopy surgery was performed on respondent No.1. On this basis, learned counsel contended that respondent No.1 had not given her consent for performing general surgery.48. In the light of the detailed discussion made above on the issues arising in the case including the issue of grant of consent, we are unable to accept the aforesaid submissions of learned counsel for respondent No.1.49. It is apt to remember the words of the then Chief Justice of India when he said in Jacob Mathews case (supra) which reads as under:"The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctors contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an indepth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability."50. In the light of what we have held above, we cannot concur with the reasoning and the conclusion arrived at by the National Commission.
### Response:
1
### Explanation:
no reason to disbelieve this fact stated by the appellant in his evidence. It is, in our opinion, a natural conduct and the behavior of any prudent doctor, who is performing the operation to apprise the attending persons of what he noticed in the patient and then go ahead accordingly to complete the operation.It is not the case of respondent No.1 that her husband was neither present in the hospital on that day nor he was not sitting outside the Operation Theater and nor he ever met the appellant on that day.In our opinion, a clear case of grant of consent to the appellant to perform the substituted operation of Gall Bladder of respondent No.1 was, therefore, made out to enable the appellant to perform the conventional surgery, which he actually performed.In our opinion, the case of the appellant also falls in the excepted category mentioned by this Court because the appellant having noticed the abnormalities in the Gall Bladder while performing laparoscopy surgery proceeded to perform the conventional surgery and that too after obtaining fresh consent of respondenthusband. In other words, it was not an unauthorized act of the appellant and he could legally perform on the basis of original consent (clause 4) of respondent No.1 as also on the basis of the further consent given by the respondent. That apart, we also find that respondent No.1 never raised the objection ofto the appellant or/and opposite party respondent No.2Hospital and it was for the first time in the complaint, she raised this issue and made a foundation to claim compensation from the appellant. Nothing prevented her or her husband to raise the issue of consent immediately after performance the surgery while she was in hospital as an indoor patient and even after discharge that being the natural conduct of any patient. It was, however, not done.In our opinion, no medical evidence of any expert was adduced by respondent No.1 to prove any specific kind of negligence on the part of the appellant in performing the surgery (conventionalsurgery) of Gall Bladder except raising the issue ofThis issue we have already dealt with above and found no merit therein. In our view, respondent No.1 was under legal obligation to prove a specific kind of negligence on the part of the appellant in performing the surgery and also was required to prove that any subsequent ailment which she suffered on her return to home such as, jaundice, dysentery, fever, loss of weight etc. were suffered by her only due to improper performance of conventional surgery by the appellant and if the surgery had been successful, she would not have suffered any kind of these ailments.In our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient.In our considered opinion, respondent No. 1 was not able to prove that the ailments which she suffered after she returned home from the Hospital on 08.08.1996 were as a result of faulty surgery performed by the appellant.In the light of the detailed discussion made above on the issues arising in the case including the issue of grant of consent, we are unable to accept the aforesaid submissions of learned counsel for respondent No.1.It is apt to remember the words of the then Chief Justice of India when he said in Jacobcase (supra) which reads assubject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution.For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which thecontribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life.The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body andmedical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires anunderstanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.In the light of what we have held above, we cannot concur with the reasoning and the conclusion arrived at by the National Commission.
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M/S:Modi Food Products Co. Limited Vs. Shri Faqir Chand Sharma & Others | an employer is laid-off, he shall be paid by the employer for all days during which he is so laid-off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty per cent. of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid-off:Provided that -(a) the compensation payable to a workman during any period of twelve months shall not be for more than forty-five days except in the case specified in clause (b);(b) if during any period of twelve months, a workman has been paid compensation for forty-five days and during the same period of twelve months he is again laid-off for further continuous periods of more than one week at a time, he shall, unless there is any agreement to the contrary between him and the employer, be paid for all the days during such subsequent periods of lay-off compensation at the rate specified in this section."The appellant does not dispute the right of the respondents to compensation, and, in fact, they were informed by the very notice dated 12-7-1954 under which they were laid off, that compensation would be paid to them in accordance with S. 25-C. It is as regards the quantum of compensation payable under that section that the parties are disagreed. It will be remembered that the lay off commenced on 14-7-1954 and was to continue until the next groundnut season and that the workers were actually absorbed in batches from September, and that by the first week of December, they had all of them been employed. There was thus one continuous lay off for periods varying from 57 to 121 days. The contention of the appellant is that, on these facts, the workmen were entitled to compensation only in accordance with proviso (a) to S. 25-C, and that they would therefore be entitled to 50 per cent. of the basic wages and dearness allowance for the first 45 days and for the rest of the period, no compensation was payable. The respondents agree that proviso (a) to S. 25-C applies to the first period of 45 days; but they contend that for the remaining period of the lay off, the governing provision is proviso (b) S. 25-C, and that under that proviso, they would be entitled to compensation as provided in the body of the section i.e., 50 per cent. of the basic wages and dearness allowance, for the remaining period also. This contention was accepted by the Tribunal, and holding that the compensation awarded by the appellant was not in accordance with S.25-C, it decided, as already mentioned, that there was an alteration of conditions of service, and accordingly awarded compensation under S.23 of the Act.9. It is contended for the appellant that the construction which the Tribunal has put on S. 25-C is erroneous, and that the amount of compensation offered by the appellant was the correct amount payable under that section. As already stated, there is no dispute that the compensation payable for the first 45 days has to be determined in accordance with proviso (a) to S. 25-C. The dispute is only as to whether for the rest of the period of lay off the workmen are entitled to compensation under proviso (b) to S. 25-C. That proviso would apply only if the workmen had been paid compensation for 45 days, are were again laid off for further periods of more than one week at a time. On the wording of the section, it is clear that the lay off which falls within proviso (b) to S. 25-C must be distinct from that for which compensation had been paid in accordance with proviso (a) to S.25-C and subsequent thereto in point of time. And as, in the present case there was one continuous lay off for the entire period, proviso (b) could have no application.10. Counsel for the respondents contends that though there was only one lay off, it should notionally be split up into two, the first period being the 45 days covered by proviso (a) to the section and the rest of the period, by proviso (b). It is arguable that there could be a second and distinct lay off following the first without a break, as for example, when the management first notifys lay off for a period of 45 days and pays compensation therefor, and again issues a fresh notificaiton at the end of the period declaring a further lay off for a period exceeding seven days in continuation of the notified lay off, and that would fall within proviso (b). But, in the present case, there was only one notification, and the period specified therein was up to the next season.By no straining of the language of proviso (b) to S. 25-C can such a lay off be brought within its purview. These respondents rely in support of their contention on the decision inAutomobile Products of India Ltd. v. Their Workmen,(1955) 1 Lab L J 67 (Bom) (A).But that decision gives no effect whatever to the words "again laid off", and moreover, if the construction adopted therein is correct, there would be no need for the provisos (a) and (b), as what would be payable under them, according to the respondents, would become payable under the body of the section itself. If, as observed in the above decision, this conclusion leads to an anomalous position, it is for the legislature, if it thinks fit, to amend the section and not for the Tribunal to construe it otherwise than what it plainly means.We are accordingly of opinion that the respondents are entitled to compensation only for the 45 days as provided in proviso (a), and that as the appellant had offered to pay the same by its notice dated 12-7-1954, there was no alteration of the conditions of the service within S.22 of the Act, and that, in consequence, the petition of the respondents was liable to be rejected. | 1[ds]We are of opinion that both these contentions arecontention rests on the supposition that the conditions under which workmen could be laid off are conditions as to their service, and that when the employer lays off workmen without proper grounds therefor, it is a violation of the conditions of service within S. 22 (a) of thequestion is one of some importance, but it is unnecessary to express any opinion onmust, therefore, decide the question on the footing that the only condition which the parties might be taken to have agreed to is that the lay-off should be for adequate grounds and for a reasonable period. On this question, there is a clear finding in favour of the appellant. TheTribunal has found that groundnut and neem seeds were not available at parity prices, and that for that reason, the work had to beis not likely that businessmen would cut their profits to spite the workmen. The period of the lay-off was expressed to be until the next groundnut season, and we have been told that the season for groundnut begins sometime in November-December. In fact, all the respondents have been re-employed in relays from September onwards, and by the first week of December all of them had been absorbed. On the Finding of the Tribunal that the lay-off was justified, it follows that the application of the respondents under S. 23 of the Act was liable to be dismissed on the ground that there had been no contravention of S.22appellant does not dispute the right of the respondents to compensation, and, in fact, they were informed by the very notice dated 12-7-1954 under which they were laid off, that compensation would be paid to them in accordance with S. 25-C. It is as regards the quantum of compensation payable under that section that the parties are disagreed. It will be remembered that the lay off commenced on 14-7-1954 and was to continue until the next groundnut season and that the workers were actually absorbed in batches from September, and that by the first week of December, they had all of them been employed. There was thus one continuous lay off for periods varying from 57 to 121already stated, there is no dispute that the compensation payable for the first 45 days has to be determined in accordance with proviso (a) to S.proviso would apply only if the workmen had been paid compensation for 45 days, are were again laid off for further periods of more than one week at a time. On the wording of the section, it is clear that the lay off which falls within proviso (b) to S. 25-C must be distinct from that for which compensation had been paid in accordance with proviso (a) to S.25-C and subsequent thereto in point of time. And as, in the present case there was one continuous lay off for the entire period, proviso (b) could have nois arguable that there could be a second and distinct lay off following the first without a break, as for example, when the management first notifys lay off for a period of 45 days and pays compensation therefor, and again issues a fresh notificaiton at the end of the period declaring a further lay off for a period exceeding seven days in continuation of the notified lay off, and that would fall within provisoin the present case, there was only one notification, and the period specified therein was up to the next season.By no straining of the language of proviso (b) to S. 25-C can such a lay off be brought within its purview. These respondents rely in support of their contention on the decision inAutomobile Products of India Ltd. v. Their Workmen,(1955) 1 Lab L J 67 (Bom) (A).But that decision gives no effect whatever to the words "again laid off", and moreover, if the construction adopted therein is correct, there would be no need for the provisos (a) and (b), as what would be payable under them, according to the respondents, would become payable under the body of the sectionas observed in the above decision, this conclusion leads to an anomalous position, it is for the legislature, if it thinks fit, to amend the section and not for the Tribunal to construe it otherwise than what it plainly means.We are accordingly of opinion that the respondents are entitled to compensation only for the 45 days as provided in proviso (a), and that as the appellant had offered to pay the same by its notice dated 12-7-1954, there was no alteration of the conditions of the service within S.22 of the Act, and that, in consequence, the petition of the respondents was liable to be rejected. | 1 | 3,142 | 872 | ### Instruction:
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an employer is laid-off, he shall be paid by the employer for all days during which he is so laid-off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty per cent. of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid-off:Provided that -(a) the compensation payable to a workman during any period of twelve months shall not be for more than forty-five days except in the case specified in clause (b);(b) if during any period of twelve months, a workman has been paid compensation for forty-five days and during the same period of twelve months he is again laid-off for further continuous periods of more than one week at a time, he shall, unless there is any agreement to the contrary between him and the employer, be paid for all the days during such subsequent periods of lay-off compensation at the rate specified in this section."The appellant does not dispute the right of the respondents to compensation, and, in fact, they were informed by the very notice dated 12-7-1954 under which they were laid off, that compensation would be paid to them in accordance with S. 25-C. It is as regards the quantum of compensation payable under that section that the parties are disagreed. It will be remembered that the lay off commenced on 14-7-1954 and was to continue until the next groundnut season and that the workers were actually absorbed in batches from September, and that by the first week of December, they had all of them been employed. There was thus one continuous lay off for periods varying from 57 to 121 days. The contention of the appellant is that, on these facts, the workmen were entitled to compensation only in accordance with proviso (a) to S. 25-C, and that they would therefore be entitled to 50 per cent. of the basic wages and dearness allowance for the first 45 days and for the rest of the period, no compensation was payable. The respondents agree that proviso (a) to S. 25-C applies to the first period of 45 days; but they contend that for the remaining period of the lay off, the governing provision is proviso (b) S. 25-C, and that under that proviso, they would be entitled to compensation as provided in the body of the section i.e., 50 per cent. of the basic wages and dearness allowance, for the remaining period also. This contention was accepted by the Tribunal, and holding that the compensation awarded by the appellant was not in accordance with S.25-C, it decided, as already mentioned, that there was an alteration of conditions of service, and accordingly awarded compensation under S.23 of the Act.9. It is contended for the appellant that the construction which the Tribunal has put on S. 25-C is erroneous, and that the amount of compensation offered by the appellant was the correct amount payable under that section. As already stated, there is no dispute that the compensation payable for the first 45 days has to be determined in accordance with proviso (a) to S. 25-C. The dispute is only as to whether for the rest of the period of lay off the workmen are entitled to compensation under proviso (b) to S. 25-C. That proviso would apply only if the workmen had been paid compensation for 45 days, are were again laid off for further periods of more than one week at a time. On the wording of the section, it is clear that the lay off which falls within proviso (b) to S. 25-C must be distinct from that for which compensation had been paid in accordance with proviso (a) to S.25-C and subsequent thereto in point of time. And as, in the present case there was one continuous lay off for the entire period, proviso (b) could have no application.10. Counsel for the respondents contends that though there was only one lay off, it should notionally be split up into two, the first period being the 45 days covered by proviso (a) to the section and the rest of the period, by proviso (b). It is arguable that there could be a second and distinct lay off following the first without a break, as for example, when the management first notifys lay off for a period of 45 days and pays compensation therefor, and again issues a fresh notificaiton at the end of the period declaring a further lay off for a period exceeding seven days in continuation of the notified lay off, and that would fall within proviso (b). But, in the present case, there was only one notification, and the period specified therein was up to the next season.By no straining of the language of proviso (b) to S. 25-C can such a lay off be brought within its purview. These respondents rely in support of their contention on the decision inAutomobile Products of India Ltd. v. Their Workmen,(1955) 1 Lab L J 67 (Bom) (A).But that decision gives no effect whatever to the words "again laid off", and moreover, if the construction adopted therein is correct, there would be no need for the provisos (a) and (b), as what would be payable under them, according to the respondents, would become payable under the body of the section itself. If, as observed in the above decision, this conclusion leads to an anomalous position, it is for the legislature, if it thinks fit, to amend the section and not for the Tribunal to construe it otherwise than what it plainly means.We are accordingly of opinion that the respondents are entitled to compensation only for the 45 days as provided in proviso (a), and that as the appellant had offered to pay the same by its notice dated 12-7-1954, there was no alteration of the conditions of the service within S.22 of the Act, and that, in consequence, the petition of the respondents was liable to be rejected.
### Response:
1
### Explanation:
We are of opinion that both these contentions arecontention rests on the supposition that the conditions under which workmen could be laid off are conditions as to their service, and that when the employer lays off workmen without proper grounds therefor, it is a violation of the conditions of service within S. 22 (a) of thequestion is one of some importance, but it is unnecessary to express any opinion onmust, therefore, decide the question on the footing that the only condition which the parties might be taken to have agreed to is that the lay-off should be for adequate grounds and for a reasonable period. On this question, there is a clear finding in favour of the appellant. TheTribunal has found that groundnut and neem seeds were not available at parity prices, and that for that reason, the work had to beis not likely that businessmen would cut their profits to spite the workmen. The period of the lay-off was expressed to be until the next groundnut season, and we have been told that the season for groundnut begins sometime in November-December. In fact, all the respondents have been re-employed in relays from September onwards, and by the first week of December all of them had been absorbed. On the Finding of the Tribunal that the lay-off was justified, it follows that the application of the respondents under S. 23 of the Act was liable to be dismissed on the ground that there had been no contravention of S.22appellant does not dispute the right of the respondents to compensation, and, in fact, they were informed by the very notice dated 12-7-1954 under which they were laid off, that compensation would be paid to them in accordance with S. 25-C. It is as regards the quantum of compensation payable under that section that the parties are disagreed. It will be remembered that the lay off commenced on 14-7-1954 and was to continue until the next groundnut season and that the workers were actually absorbed in batches from September, and that by the first week of December, they had all of them been employed. There was thus one continuous lay off for periods varying from 57 to 121already stated, there is no dispute that the compensation payable for the first 45 days has to be determined in accordance with proviso (a) to S.proviso would apply only if the workmen had been paid compensation for 45 days, are were again laid off for further periods of more than one week at a time. On the wording of the section, it is clear that the lay off which falls within proviso (b) to S. 25-C must be distinct from that for which compensation had been paid in accordance with proviso (a) to S.25-C and subsequent thereto in point of time. And as, in the present case there was one continuous lay off for the entire period, proviso (b) could have nois arguable that there could be a second and distinct lay off following the first without a break, as for example, when the management first notifys lay off for a period of 45 days and pays compensation therefor, and again issues a fresh notificaiton at the end of the period declaring a further lay off for a period exceeding seven days in continuation of the notified lay off, and that would fall within provisoin the present case, there was only one notification, and the period specified therein was up to the next season.By no straining of the language of proviso (b) to S. 25-C can such a lay off be brought within its purview. These respondents rely in support of their contention on the decision inAutomobile Products of India Ltd. v. Their Workmen,(1955) 1 Lab L J 67 (Bom) (A).But that decision gives no effect whatever to the words "again laid off", and moreover, if the construction adopted therein is correct, there would be no need for the provisos (a) and (b), as what would be payable under them, according to the respondents, would become payable under the body of the sectionas observed in the above decision, this conclusion leads to an anomalous position, it is for the legislature, if it thinks fit, to amend the section and not for the Tribunal to construe it otherwise than what it plainly means.We are accordingly of opinion that the respondents are entitled to compensation only for the 45 days as provided in proviso (a), and that as the appellant had offered to pay the same by its notice dated 12-7-1954, there was no alteration of the conditions of the service within S.22 of the Act, and that, in consequence, the petition of the respondents was liable to be rejected.
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Northern Plastics Ltd Vs. Hindustan Photo Films Mfg. Co. Ltd.&Ors | duty and obligation under the statute to see that the residential area is not spoiled by unauthorised construction. Under these circumstances it was held that the aggrieved party had sufficient locus standi under Article 226 of the Constitution of India to move the High Court against the violation of the statutory scheme by the Municipal Authorities. It is easy to visualise that in that case this Court was concerned with the locus standi of an ‘aggrieved party’ under Article 226 of the Constitution of India which is of a wider nature as compared to the statutory right of appeal under a given statutory scheme before a Statutory Authority created by that very statute. The said decision is, therefore, of no avail to HPF. 11. As a result of the aforesaid discussion it must be held that the High Court had committed a patent error of law in taking the view that the concerned writ petitioners before it had sufficient locus standi to prefer appeals before CEGAT. The decision of CEGAT holding that they had no such locus standi was perfectly justified on the scheme of the Act and it was wrongly set aside by the High Court. Consequently the appeals will be required to be allowed.12. However a further question survives for our consideration. As the High Court has noted in the impugned judgment, the other contentions in the writ petitions filed by the contesting respondents were not considered by it in view of its decision on the right of appeal which was made available to the concerned writ petitioners before the CEGAT. We have, however, to observe in this connection that the High Court was not at all justified in presuming what it should do in case the appellant’s appeal succeeded before this Court. Proper direction in that connection should have been left to be given by this Court in such an eventuality. High Court could not have been pre-empted the same by the impugned judgment. However in view of the fact that other contentions in the writ petitions were not examined by the High Court in any case they will now have to be examined by it. As the decision on the right to appeal to CEGAT made available to the contesting respondents by the High Court is being set aside by us, the question remains as to what further appropriate orders can be passed in this connection. So far as this question is concerned it may be noted that two writ petitions were moved, one by Union of India being Civil Writ Petition No. 3023 of 1989 and another by HPF being Civil Writ Petition No. 2286 of 1989. As we have taken the view that HPF being a business rival of the appellant had no right to challenge the order of Additional Collector of Customs, Bombay passed in favour of the appellant its writ petition being Civil Writ Petition No. 2286 of 1989 filed before the High Court will stand dismissed. However writ petition filed by the Union of India being Civil Writ Petition No. 3023 of 1989 will have to be permitted to proceed further on remaining controversy before the High Court insofar as Union of India seeks to challenge the order of Collector of Customs, Bombay dated 1st/5th June, 1989. As we have taken the view that Union of India could legitimately challenge the said order before appropriate forum in public interest and as it has wider locus standi at least in proceedings under Article 226 of the Constitution of India if not before CECAT, its challenge in the writ petition under Article 226 against the said order cannot be told off the gates. That challenge will have to be examined by the High Court under Article 226 on its own merits. It is obvious that it will be open to the appellant as contesting respondent to try to support the impugned order of the Assistant Collector /Collector of Customs on all legally permissible grounds. In short the said controversy between the Union of India on the one hand and the appellant on the other in Union of Indias Writ Petition No. 3023 of 1989 will have to be examined by the Division Bench of the High Court on its own merits. As the proceedings are pending since long before the High Court so far as the aforesaid challenge is concerned it would be in the interest of justice to request the High Court to decide the said writ petition on the merits of the question regarding the legality and propriety of the order of Collector/Assistant Collector of Customs dated 5th June, 1989 as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this order at its end.13. Now remains the last question as to what is to be done about the amount fetched in auction of the goods pursuant to the interim order of this Court dated 24th September, 1990. We cannot accede to the request of the learned Counsel for the appellant that the said invested amount with accrued interest may be permitted to be withdrawn by the appellant at this stage by furnishing bank guarantee. In our view as the amount is lying deposited and invested by this Court since more than six and half years by now and as we are requesting the High Court to decide the pending writ petition of Union of India on the surviving question as aforesaid within four months from the date of receipt of copy of the present order it would be in the interest of all concerned to continue the investment of the deposited amount of the auction price by this Court and to direct that the withdrawal of that amount shall abide by the final result of the writ petition of the Union of India before the High Court and shall also remain subject to the result of further appeal, if any, against the High Courts judgment in the said writ petition. | 1[ds]So far as the Union of India is concerned we may proceed on the basis that it may have to subserve a larger public interest by raising the present dispute and may legitimately feel aggrieved by the order of the Additional Collector of Customs. But even if it is so, the statutory procedure laid down by the Parliament in its wisdom for enabling the challenge to the adjudication order of the Collector of Customs by way of appeals or revisions as per the aforesaid relevant statutory provisions, to which we have made a mention, has got to be followed in such an eventuality. Bypassing the said statutory procedure a direct frog leap to CEGAT is contra-indicated by the statutory scheme of the Act. If such direct appeals are permitted the very scheme of Section 129-A(1) would get stultified. It must, therefore, be held that direct appeal filed by the Union of India through Industries Ministry to CEGAT under Section 129-A(1) was clearly incompetent. It may be added that the Union of India could have used the mode set out in Section 129-D, but it did not do so.As a result of the aforesaid discussion it must be held that the High Court had committed a patent error of law in taking the view that the concerned writ petitioners before it had sufficient locus standi to prefer appeals before CEGAT. The decision of CEGAT holding that they had no such locus standi was perfectly justified on the scheme of the Act and it was wrongly set aside by the High Court. Consequently the appeals will be required to be allowed.12. However a further question survives for our consideration. Asthe High Court has noted in the impugned judgment, the other contentions in the writ petitions filed by the contesting respondents were not considered by it in view of its decision on the right of appeal which was made available to the concerned writ petitioners before theCEGAT. We have, however, to observe in this connection that the High Court was not at all justified in presuming what it should do in case theappeal succeeded before this Court. Proper direction in that connection should have been left to be given by this Court in such an eventuality. High Court could not have been pre-empted the same by the impugned judgment. However in view of the fact that other contentions in the writ petitions were not examined by the High Court in any case they will now have to be examined by it. As the decision on the right to appeal to CEGAT made available to the contesting respondents by the High Court is being set aside by us, the question remains as to what further appropriate orders can be passed in this connection. So far as this question is concerned it may be noted that two writ petitions were moved, one by Union of India being Civil Writ Petition No. 3023 of 1989 and another by HPF being Civil Writ Petition No. 2286 of 1989. As we have taken the view that HPF being a business rival of the appellant had no right to challenge the order of Additional Collector of Customs, Bombay passed in favour of the appellant its writ petition being Civil Writ Petition No. 2286 of 1989 filed before the High Court will stand dismissed. However writ petition filed by the Union of India being Civil Writ Petition No. 3023 of 1989 will have to be permitted to proceed further on remaining controversy before the High Court insofar as Union of India seeks to challenge the order of Collector of Customs, Bombay dated 1st/5th June, 1989. As we have taken the view that Union of India could legitimately challenge the said order before appropriate forum in public interest and as it has wider locus standi at least in proceedings under Article 226 of the Constitution of India if not before CECAT, its challenge in the writ petition under Article 226 against the said order cannot be told off the gates. That challenge will have to be examined by the High Court under Article 226 on its own merits. It is obvious that it will be open to the appellant as contesting respondent to try to support the impugned order of the Assistant Collector /Collector of Customs on all legally permissible grounds. In short the said controversy between the Union of India on the one hand and the appellant on the other in Union of Indias Writ Petition No. 3023 of 1989 will have to be examined by the Division Bench of the High Court on its own merits. As the proceedings are pending since long before the High Court so far as the aforesaid challenge is concerned it would be in the interest of justice to request the High Court to decide the said writ petition on the merits of the question regarding the legality and propriety of the order of Collector/Assistant Collector of Customs dated 5th June, 1989 as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this order at its end.13. Now remains the last question as to whatis to be done about the amount fetched in auction of the goods pursuant to the interim order of this Court dated 24th September,1990. We cannot accede to the request of the learned Counsel for the appellant that the said invested amount with accrued interest may be permitted to be withdrawn by the appellant at this stage by furnishing bank guarantee. In our view as the amount is lying deposited and invested by this Court since more than six and half years by now and as we are requesting the High Court to decide the pending writ petition of Union of India on the surviving question as aforesaid within four months from the date of receipt of copy of the present order it would be in the interest of all concerned to continue the investment of the deposited amount of the auction price by this Court and to direct that the withdrawal of that amount shall abide by the final result of the writ petition of the Union of India before the High Court and shall also remain subject to the result of further appeal, if any, against the High Courts judgment in the said writ petition. | 1 | 9,471 | 1,118 | ### Instruction:
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duty and obligation under the statute to see that the residential area is not spoiled by unauthorised construction. Under these circumstances it was held that the aggrieved party had sufficient locus standi under Article 226 of the Constitution of India to move the High Court against the violation of the statutory scheme by the Municipal Authorities. It is easy to visualise that in that case this Court was concerned with the locus standi of an ‘aggrieved party’ under Article 226 of the Constitution of India which is of a wider nature as compared to the statutory right of appeal under a given statutory scheme before a Statutory Authority created by that very statute. The said decision is, therefore, of no avail to HPF. 11. As a result of the aforesaid discussion it must be held that the High Court had committed a patent error of law in taking the view that the concerned writ petitioners before it had sufficient locus standi to prefer appeals before CEGAT. The decision of CEGAT holding that they had no such locus standi was perfectly justified on the scheme of the Act and it was wrongly set aside by the High Court. Consequently the appeals will be required to be allowed.12. However a further question survives for our consideration. As the High Court has noted in the impugned judgment, the other contentions in the writ petitions filed by the contesting respondents were not considered by it in view of its decision on the right of appeal which was made available to the concerned writ petitioners before the CEGAT. We have, however, to observe in this connection that the High Court was not at all justified in presuming what it should do in case the appellant’s appeal succeeded before this Court. Proper direction in that connection should have been left to be given by this Court in such an eventuality. High Court could not have been pre-empted the same by the impugned judgment. However in view of the fact that other contentions in the writ petitions were not examined by the High Court in any case they will now have to be examined by it. As the decision on the right to appeal to CEGAT made available to the contesting respondents by the High Court is being set aside by us, the question remains as to what further appropriate orders can be passed in this connection. So far as this question is concerned it may be noted that two writ petitions were moved, one by Union of India being Civil Writ Petition No. 3023 of 1989 and another by HPF being Civil Writ Petition No. 2286 of 1989. As we have taken the view that HPF being a business rival of the appellant had no right to challenge the order of Additional Collector of Customs, Bombay passed in favour of the appellant its writ petition being Civil Writ Petition No. 2286 of 1989 filed before the High Court will stand dismissed. However writ petition filed by the Union of India being Civil Writ Petition No. 3023 of 1989 will have to be permitted to proceed further on remaining controversy before the High Court insofar as Union of India seeks to challenge the order of Collector of Customs, Bombay dated 1st/5th June, 1989. As we have taken the view that Union of India could legitimately challenge the said order before appropriate forum in public interest and as it has wider locus standi at least in proceedings under Article 226 of the Constitution of India if not before CECAT, its challenge in the writ petition under Article 226 against the said order cannot be told off the gates. That challenge will have to be examined by the High Court under Article 226 on its own merits. It is obvious that it will be open to the appellant as contesting respondent to try to support the impugned order of the Assistant Collector /Collector of Customs on all legally permissible grounds. In short the said controversy between the Union of India on the one hand and the appellant on the other in Union of Indias Writ Petition No. 3023 of 1989 will have to be examined by the Division Bench of the High Court on its own merits. As the proceedings are pending since long before the High Court so far as the aforesaid challenge is concerned it would be in the interest of justice to request the High Court to decide the said writ petition on the merits of the question regarding the legality and propriety of the order of Collector/Assistant Collector of Customs dated 5th June, 1989 as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this order at its end.13. Now remains the last question as to what is to be done about the amount fetched in auction of the goods pursuant to the interim order of this Court dated 24th September, 1990. We cannot accede to the request of the learned Counsel for the appellant that the said invested amount with accrued interest may be permitted to be withdrawn by the appellant at this stage by furnishing bank guarantee. In our view as the amount is lying deposited and invested by this Court since more than six and half years by now and as we are requesting the High Court to decide the pending writ petition of Union of India on the surviving question as aforesaid within four months from the date of receipt of copy of the present order it would be in the interest of all concerned to continue the investment of the deposited amount of the auction price by this Court and to direct that the withdrawal of that amount shall abide by the final result of the writ petition of the Union of India before the High Court and shall also remain subject to the result of further appeal, if any, against the High Courts judgment in the said writ petition.
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Parliament in its wisdom for enabling the challenge to the adjudication order of the Collector of Customs by way of appeals or revisions as per the aforesaid relevant statutory provisions, to which we have made a mention, has got to be followed in such an eventuality. Bypassing the said statutory procedure a direct frog leap to CEGAT is contra-indicated by the statutory scheme of the Act. If such direct appeals are permitted the very scheme of Section 129-A(1) would get stultified. It must, therefore, be held that direct appeal filed by the Union of India through Industries Ministry to CEGAT under Section 129-A(1) was clearly incompetent. It may be added that the Union of India could have used the mode set out in Section 129-D, but it did not do so.As a result of the aforesaid discussion it must be held that the High Court had committed a patent error of law in taking the view that the concerned writ petitioners before it had sufficient locus standi to prefer appeals before CEGAT. The decision of CEGAT holding that they had no such locus standi was perfectly justified on the scheme of the Act and it was wrongly set aside by the High Court. Consequently the appeals will be required to be allowed.12. However a further question survives for our consideration. Asthe High Court has noted in the impugned judgment, the other contentions in the writ petitions filed by the contesting respondents were not considered by it in view of its decision on the right of appeal which was made available to the concerned writ petitioners before theCEGAT. We have, however, to observe in this connection that the High Court was not at all justified in presuming what it should do in case theappeal succeeded before this Court. Proper direction in that connection should have been left to be given by this Court in such an eventuality. High Court could not have been pre-empted the same by the impugned judgment. However in view of the fact that other contentions in the writ petitions were not examined by the High Court in any case they will now have to be examined by it. As the decision on the right to appeal to CEGAT made available to the contesting respondents by the High Court is being set aside by us, the question remains as to what further appropriate orders can be passed in this connection. So far as this question is concerned it may be noted that two writ petitions were moved, one by Union of India being Civil Writ Petition No. 3023 of 1989 and another by HPF being Civil Writ Petition No. 2286 of 1989. As we have taken the view that HPF being a business rival of the appellant had no right to challenge the order of Additional Collector of Customs, Bombay passed in favour of the appellant its writ petition being Civil Writ Petition No. 2286 of 1989 filed before the High Court will stand dismissed. However writ petition filed by the Union of India being Civil Writ Petition No. 3023 of 1989 will have to be permitted to proceed further on remaining controversy before the High Court insofar as Union of India seeks to challenge the order of Collector of Customs, Bombay dated 1st/5th June, 1989. As we have taken the view that Union of India could legitimately challenge the said order before appropriate forum in public interest and as it has wider locus standi at least in proceedings under Article 226 of the Constitution of India if not before CECAT, its challenge in the writ petition under Article 226 against the said order cannot be told off the gates. That challenge will have to be examined by the High Court under Article 226 on its own merits. It is obvious that it will be open to the appellant as contesting respondent to try to support the impugned order of the Assistant Collector /Collector of Customs on all legally permissible grounds. In short the said controversy between the Union of India on the one hand and the appellant on the other in Union of Indias Writ Petition No. 3023 of 1989 will have to be examined by the Division Bench of the High Court on its own merits. As the proceedings are pending since long before the High Court so far as the aforesaid challenge is concerned it would be in the interest of justice to request the High Court to decide the said writ petition on the merits of the question regarding the legality and propriety of the order of Collector/Assistant Collector of Customs dated 5th June, 1989 as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this order at its end.13. Now remains the last question as to whatis to be done about the amount fetched in auction of the goods pursuant to the interim order of this Court dated 24th September,1990. We cannot accede to the request of the learned Counsel for the appellant that the said invested amount with accrued interest may be permitted to be withdrawn by the appellant at this stage by furnishing bank guarantee. In our view as the amount is lying deposited and invested by this Court since more than six and half years by now and as we are requesting the High Court to decide the pending writ petition of Union of India on the surviving question as aforesaid within four months from the date of receipt of copy of the present order it would be in the interest of all concerned to continue the investment of the deposited amount of the auction price by this Court and to direct that the withdrawal of that amount shall abide by the final result of the writ petition of the Union of India before the High Court and shall also remain subject to the result of further appeal, if any, against the High Courts judgment in the said writ petition.
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V. Dhanapal Chettiar Vs. Yesodai Ammal | taken. This is exactly the reason why we have thought it fit to review all the decisions and lay down a uniform law for all the States. Section 10(1) of the Andhra Pradesh Act provided that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13. A special provision in the Andhra Act was contained in Section 10(7) which says:“Where an application under Sub-section (2) or Sub-section (3) for evicting a tenant has been rejected by the Controller, the tenancy shall, subject to the provision of this Act, be deemed to continue on the same terms and conditions as before and shall not be terminable by the landlord except on one or more of the grounds mentioned in Sub-section (2) or Sub-section (3).”This special provision is provided by way of abundant presumption, only. Even without this a tenant continuing in possession after the termination of the contractual tenancy and until an eviction order is passed against him continues on the same terms and conditions as before and he cannot be evicted unless a ground is made out for his eviction according to the State Rent Act. The said provision by itself did not justify a departure from the view expressed by the Court in Mangilal’s case. Beg J., followed the decision of this Court in Raval’s case and of the Punjab High Court in Hem Chand’s case. For the reasons stated by us, we approve of his view not on the ground that the Andhra Pradesh State Act is a different one but because in respect of any State Act that is the correct view to take.20. Lastly our attention was drawn to the decision of this Court in firm Sardarilal Vishwanath and Ors. v. Pritam Singh32 The lease in that case had come to an end by efflux of time. A tenant continued in possession and become a so-called statutory tenant. The argument put forward before this Court that a fresh notice under Section 106 of the Transfer of Property Act was necessary was rejected on the ground:“Having examined the matter on authority and precedent it must be frankly confessed that no other conclusion is possible on the first principle. Lease of Urban immoveable property represents a contract between the lessor and the lessee. If the contract is to be put to an end it has to be terminated by a notice to quit as envisaged under Section 106 of the Transfer of Property Act. But it is equally clear as provided by Section 111 of the Transfer of Property Act that the lease of immoveable property determines by various modes therein prescribed. Now, if the lease of immovable property determining in any one of the modes prescribed under Section 111 the contract of lease comes to an end, and the landlord can exercise his right of re-entry. This right of re-entry is further restricted and fettered by the provisions of the Rent Restriction Act. Nonetheless the contract of lessee had expired and the tenant lessee continues in possession under the protective wing of the Rent Restriction Act until the lessee loses protection. But there is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed under Section 111. There is, therefore, no question of giving a notice to quit to such a lessee who continued in possession after the determination of the lease, i.e. after the contract came to an end under the protection of the Rent Restriction Act. If the contract once came to an end there was no question of terminating the contract over again by the fresh notice.”21. If we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a preceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite incorrect because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even Othereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.22. For the reasons stated above we held that the High Court was right in its view that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the landlady-respondent to get an order of the eviction against the tenant-appellant. But we were told by learned Counsel for the appellant that he had come more points to urge before the High Court to challenge the order of eviction. We do not find from the judgment of the High Court that the appellant was prevented from supporting the orders of the courts below in his favour by urging any other point. No point of substance could be indicated before us which was worth consideration after a clear and definite finding by the Appellate Court that the respondent required the premises bona fide for a personal necessity. We do not think it advisable to delay the proceeding any further and send back the case to the High Court on this account. We accordingly dismiss the appeal but in the circumstances direct the parties to bear their own costs throughout. | 0[ds]A lease of immovable property determines under clausethe expiration of a notice to determine the lease, or to quit, or of intention to quit, the property lease, duly given by one party to theis this clause, which brings into operation the requirement of Section 106 of the Transfer of Property Act. Without adverting to the effect and the details of waiver of forfeiture, waiver of notice to quit, relief against forfeiture for non-payment of rent etc. as provided for in Section 112 to 114A of the Transfer of Property Act, suffice it to say that under the said Act on ground of eviction of a tenant has to be made out once a contractual tenancy is put to an end by service of a valid notice under Section 106 of the Transfer of Property Act. Until and unless the lease is determined, the lease is entitled to continue in possession. Once it is determined it becomes open to the lessor to enforce his right of recovery of possession of the property against him. In such a situation it was plain and clear that if the lease of the immovable property did not stand determined under any of the clauses (a) to (g) of Section 111, a notice to determine it under Section 106 wasthe State Rent Act requires the giving of a particular type notice in order to get a particular kind of relief, such a notice will have to be given. Or, it may be, that a landlord will be well advised by way of abundant precaution and in order to land additional support to his case, to give a notice to his tenant intimating that the intended to file a suit against him for his eviction on the ground mentioned in the notice. But that is not to say that such a notice is compulsory or obligatory or that it must fulfil all the technical requirements of Section 106 of the Transfer of Property Act. Once the liability to be evicted is incurred by the tenant, he cannot turn round and say that the contractual lease has not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tentamount to an expression of his intention that he does not want the tenant to continue as his leasee and the jural relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of the wordunder the various State Rent Act, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving of a valid notice under Section 106 of the Transfer of Property Act. In many cases the distinction between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular case. That laid to the criticism of that expression in some of the decision. Without detaining ourselves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law.It is true that the Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive rents or for evicting tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction. As we have pointed out above, this was necessary under the Transfer of Property Act as mere termination of the lease entitled the landlord to recover possession. But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy. It is of no practical use after so many restrictions of his right to evict the tenant have been put. The restricted area under the various State Rent Acts has done away to a large extent with the requirement of the law of contract and the Transfer of Property Act. If this be so why unnecessarily, illogically and unjustifiably a formality of terminating the contractual lease should be insisted upon? In Bhaiyacase, if we may say so with very great respect, the principle of law laid down by this Court in Rai Brijcase (supra) and by the Punjab High Court in Hemcase was wrongly distinguished. After quoting the passage from the former it was said at pagethe present case, Section 12 of the Act is differently worded and cannot, therefore, be said to be a complete Code in itself. There is nothing in it which overrides the provisions of the Transfer of Propertydifference in the wordings of Section 11 of the Bihar Act and section 12 of the Bombay Act does not justify the conclusion that the provisions of the Transfer of Property Act have not been overridden by Section 12 of the Bombay Act reading it with Section 13, etc. This was the ground given for distinguishing Hemcase also by erroneously pointing out the distinction between Section 13(1) of the Delhi and Ajmer Merwara Rent Control Act, 1952 and the Bombay Act. In our considered judgment Bhaiyacase was not correctlyour opinion the majority decision with regard to Section 4 was undoubtedly correct and the minority stretched the law, if we may say so with respect, too far to hold that Section 4 was not available to the landlord. It should be remembered, as we have said shows, that the field of freedom of contract was encroached upon to a very large extent by the State Rent Acts. The encroachment was not entirely and wholly one sided. Some encroachment was envisaged in the interest of the landlord also and equity and justice demanded a fair play on the part of the Legislature not to completely ignore the helpless situation of many landlords who are also compared to some big tenants sometimes weaker Section of the society. As for example a widom or minor lets out a family house in a helpless situation to tide over the financial difficulty and later wants a fair rent to be determined. Again suppose for instance in a city there is an apprehension of external aggression, severe internal disturbances or spread of epidemics. A man in possession of his house may go to another town letting out his premises to a tenant financially strong and of strong serves at a rate comparatively much lower than the prevailing market rates. Later on, on the normalisation of the situation as against the agreed rate of rent he approaches the Building Controller for fixing a fair rent in accordance with a particular State Rent Act. Why should she or he be debarred from doing so. The statute gives him the protection and enables the Controller to intervene to fix a fair rent as against the term of contract between the parties. In a large number of cases it is tenant who gets this protection. But in some as in the case of Raval the landlord needs and gets the protection. But this is not a direct authority on the point ofa careful consideration and approach of the matter in the instant case we think that we cannot approve of the view expressed in the passage extracted above. In Ratan Lal v. Vardesh Chander & Ors. Krishna Iyer J. delivered the judgment on behalf of a Bench of this Court consisting of himself Chandrachud J. as he then was and Gupta J. The case related to a building in Delhi. The Court was concerned with clause (g) of Section 111 of the Transfer of Property Act. Tracing the history of the legislation it was pointed out by the Court at page 918 that the requirement as to written notice provided in Section 111(g) cannot be said to be based on any general rule of equity and ,therefore, forfeiture of lease brought about terms of Section 111(g) of the Transfer of Property Act not by notice but on the application of justice, equity and good conscience was held to be good determination of the lease, quoting fromcase it was said at pageare inclined to hold that the landlord in the present case cannot secure an order for eviction without first establishing that he has validly determined the lease under T.P.this dual requirement? Even if the lease is determined by a forfeitures under the Transfer of Property Act the tenant continues to be a tenant, that is to say,is no forfeitures in the eyes of law. The tenant becomes liable to be evicted and forfeitures comes into play only if he had incurred the liability to be evicted under the State Rent Act, not otherwise. In many State Statutes different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. Some provisions overlap those of the Transfer of Property Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also. That being so the dictum of this Court in Rajcase comes into play and one had to look to the provisions of law contained in the four corners of any State Rent Act to find out whether a tenant can be evicted or not. The theory of double protection or additional protection, it seems to us, has been streched too far and without a proper and due consideration of all its ramifications.19. Beg J., as he then was, speaking for the Court in the case of Puwada Venkateswara Rao. v. Chidamana vnkata Ramana30 had to deal with the question as to whether a notice to quit was necessary for seeking an order for eviction under the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960. The Andhra Pradesh High Court had relied upon the decision of that Court in Ulligamma & Ors. v. S. Mohan Rao & Ors. for taking the view that a notice under Section 106 of the Transfer of Property Act was not necessary. Gopal Rao Ekbota J., delivering the judgment on behalf of a Bench of the Andhra Pradesh High Court incase reviewed several decisions of the High Courts and this Court and considered the special provisions of the Andhra Pradesh Rent Act. The view expressed by him that no notice was necessary under Section 106 of the Transfer of Property Act was approved by this Court. We find no justification for saying that because of some special provisions contained in the Andhra Act a different view was possible to be taken. This is exactly the reason why we have thought it fit to review all the decisions and lay down a uniform law for all the States. Section 10(1) of the Andhra Pradesh Act provided that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13. A special provision in the Andhra Act was contained in Section 10(7) whichan application under Sub-section (2) or Sub-section (3) for evicting a tenant has been rejected by the Controller, the tenancy shall, subject to the provision of this Act, be deemed to continue on the same terms and conditions as before and shall not be terminable by the landlord except on one or more of the grounds mentioned in Sub-section (2) or Sub-sectionspecial provision is provided by way of abundant presumption, only. Even without this a tenant continuing in possession after the termination of the contractual tenancy and until an eviction order is passed against him continues on the same terms and conditions as before and he cannot be evicted unless a ground is made out for his eviction according to the State Rent Act. The said provision by itself did not justify a departure from the view expressed by the Court incase. Beg J., followed the decision of this Court incase and of the Punjab High Court in Hemcase. For the reasons stated by us, we approve of his view not on the ground that the Andhra Pradesh State Act is a different one but because in respect of any State Act that is the correct view to take.If we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a preceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite incorrect because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even Othereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.22. For the reasons stated above we held that the High Court was right in its view that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the landlady-respondent to get an order of the eviction against the tenant-appellant. But we were told by learned Counsel for the appellant that he had come more points to urge before the High Court to challenge the order of eviction. We do not find from the judgment of the High Court that the appellant was prevented from supporting the orders of the courts below in his favour by urging any other point. No point of substance could be indicated before us which was worth consideration after a clear and definite finding by the Appellate Court that the respondent required the premises bona fide for a personal necessity. We do not think it advisable to delay the proceeding any further and send back the case to the High Court on this account. We accordingly dismiss the appeal but in the circumstances direct the parties to bear their own costs. Lastly our attention was drawn to the decision of this Court in firm Sardarilal Vishwanath and Ors. v. Pritam Singh32 The lease in that case had come to an end by efflux of time. A tenant continued in possession and become a so-called statutory tenant. The argument put forward before this Court that a fresh notice under Section 106 of the Transfer of Property Act was necessary was rejected on theexamined the matter on authority and precedent it must be frankly confessed that no other conclusion is possible on the first principle. Lease of Urban immoveable property represents a contract between the lessor and the lessee. If the contract is to be put to an end it has to be terminated by a notice to quit as envisaged under Section 106 of the Transfer of Property Act. But it is equally clear as provided by Section 111 of the Transfer of Property Act that the lease of immoveable property determines by various modes therein prescribed. Now, if the lease of immovable property determining in any one of the modes prescribed under Section 111 the contract of lease comes to an end, and the landlord can exercise his right of re-entry. This right of re-entry is further restricted and fettered by the provisions of the Rent Restriction Act. Nonetheless the contract of lessee had expired and the tenant lessee continues in possession under the protective wing of the Rent Restriction Act until the lessee loses protection. But there is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed under Section 111. There is, therefore, no question of giving a notice to quit to such a lessee who continued in possession after the determination of the lease, i.e. after the contract came to an end under the protection of the Rent Restriction Act. If the contract once came to an end there was no question of terminating the contract over again by the fresh notice.f we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a preceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite incorrect because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even Othereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.case (supra) the question for consideration was whether Section 4 of the Tamil Nadu Rent Act providing for an application for fixation of fair rent was available both to the tenant and the landlord. The majority speaking though Alagiriswami J. took the view that it was so. A contrary view was expressed by Bhagwati J. speaking for the minority. While discussing this question the relevant passage from the decision of this Court in Rai Brijcase quoted at page 634 and reference was made to the decision of the Punjab High Court in Hemcase. Thereafter the observation of this Court in Bhaiyato the effect thatActs are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no now rights of action but restricting rights either under the contract or under the generalwere held not to apply to all Rent Acts irrespective of the scheme of those Acts and their provisions. This observation given by with reference to the dictum of this Court in Bhaiyacase concerned with the question of notice under Section 106. It enabled certain High Courts to make a firm departure and take the view with reference to the scheme of their respective State Acts to say that a notice was not necessary. This happened in Madras, Andhra Pradesh, Kerala, Karnataka and Punjab & Haryana. Alagiriswami J. at page 635 after having made that observation with reference to Bhaiyathat as it may, we are now concerned with the question of fixation of a fair | 0 | 8,074 | 3,517 | ### Instruction:
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taken. This is exactly the reason why we have thought it fit to review all the decisions and lay down a uniform law for all the States. Section 10(1) of the Andhra Pradesh Act provided that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13. A special provision in the Andhra Act was contained in Section 10(7) which says:“Where an application under Sub-section (2) or Sub-section (3) for evicting a tenant has been rejected by the Controller, the tenancy shall, subject to the provision of this Act, be deemed to continue on the same terms and conditions as before and shall not be terminable by the landlord except on one or more of the grounds mentioned in Sub-section (2) or Sub-section (3).”This special provision is provided by way of abundant presumption, only. Even without this a tenant continuing in possession after the termination of the contractual tenancy and until an eviction order is passed against him continues on the same terms and conditions as before and he cannot be evicted unless a ground is made out for his eviction according to the State Rent Act. The said provision by itself did not justify a departure from the view expressed by the Court in Mangilal’s case. Beg J., followed the decision of this Court in Raval’s case and of the Punjab High Court in Hem Chand’s case. For the reasons stated by us, we approve of his view not on the ground that the Andhra Pradesh State Act is a different one but because in respect of any State Act that is the correct view to take.20. Lastly our attention was drawn to the decision of this Court in firm Sardarilal Vishwanath and Ors. v. Pritam Singh32 The lease in that case had come to an end by efflux of time. A tenant continued in possession and become a so-called statutory tenant. The argument put forward before this Court that a fresh notice under Section 106 of the Transfer of Property Act was necessary was rejected on the ground:“Having examined the matter on authority and precedent it must be frankly confessed that no other conclusion is possible on the first principle. Lease of Urban immoveable property represents a contract between the lessor and the lessee. If the contract is to be put to an end it has to be terminated by a notice to quit as envisaged under Section 106 of the Transfer of Property Act. But it is equally clear as provided by Section 111 of the Transfer of Property Act that the lease of immoveable property determines by various modes therein prescribed. Now, if the lease of immovable property determining in any one of the modes prescribed under Section 111 the contract of lease comes to an end, and the landlord can exercise his right of re-entry. This right of re-entry is further restricted and fettered by the provisions of the Rent Restriction Act. Nonetheless the contract of lessee had expired and the tenant lessee continues in possession under the protective wing of the Rent Restriction Act until the lessee loses protection. But there is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed under Section 111. There is, therefore, no question of giving a notice to quit to such a lessee who continued in possession after the determination of the lease, i.e. after the contract came to an end under the protection of the Rent Restriction Act. If the contract once came to an end there was no question of terminating the contract over again by the fresh notice.”21. If we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a preceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite incorrect because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even Othereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.22. For the reasons stated above we held that the High Court was right in its view that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the landlady-respondent to get an order of the eviction against the tenant-appellant. But we were told by learned Counsel for the appellant that he had come more points to urge before the High Court to challenge the order of eviction. We do not find from the judgment of the High Court that the appellant was prevented from supporting the orders of the courts below in his favour by urging any other point. No point of substance could be indicated before us which was worth consideration after a clear and definite finding by the Appellate Court that the respondent required the premises bona fide for a personal necessity. We do not think it advisable to delay the proceeding any further and send back the case to the High Court on this account. We accordingly dismiss the appeal but in the circumstances direct the parties to bear their own costs throughout.
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is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.22. For the reasons stated above we held that the High Court was right in its view that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the landlady-respondent to get an order of the eviction against the tenant-appellant. But we were told by learned Counsel for the appellant that he had come more points to urge before the High Court to challenge the order of eviction. We do not find from the judgment of the High Court that the appellant was prevented from supporting the orders of the courts below in his favour by urging any other point. No point of substance could be indicated before us which was worth consideration after a clear and definite finding by the Appellate Court that the respondent required the premises bona fide for a personal necessity. We do not think it advisable to delay the proceeding any further and send back the case to the High Court on this account. We accordingly dismiss the appeal but in the circumstances direct the parties to bear their own costs. Lastly our attention was drawn to the decision of this Court in firm Sardarilal Vishwanath and Ors. v. Pritam Singh32 The lease in that case had come to an end by efflux of time. A tenant continued in possession and become a so-called statutory tenant. The argument put forward before this Court that a fresh notice under Section 106 of the Transfer of Property Act was necessary was rejected on theexamined the matter on authority and precedent it must be frankly confessed that no other conclusion is possible on the first principle. Lease of Urban immoveable property represents a contract between the lessor and the lessee. If the contract is to be put to an end it has to be terminated by a notice to quit as envisaged under Section 106 of the Transfer of Property Act. But it is equally clear as provided by Section 111 of the Transfer of Property Act that the lease of immoveable property determines by various modes therein prescribed. Now, if the lease of immovable property determining in any one of the modes prescribed under Section 111 the contract of lease comes to an end, and the landlord can exercise his right of re-entry. This right of re-entry is further restricted and fettered by the provisions of the Rent Restriction Act. Nonetheless the contract of lessee had expired and the tenant lessee continues in possession under the protective wing of the Rent Restriction Act until the lessee loses protection. But there is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed under Section 111. There is, therefore, no question of giving a notice to quit to such a lessee who continued in possession after the determination of the lease, i.e. after the contract came to an end under the protection of the Rent Restriction Act. If the contract once came to an end there was no question of terminating the contract over again by the fresh notice.f we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a preceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite incorrect because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even Othereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.case (supra) the question for consideration was whether Section 4 of the Tamil Nadu Rent Act providing for an application for fixation of fair rent was available both to the tenant and the landlord. The majority speaking though Alagiriswami J. took the view that it was so. A contrary view was expressed by Bhagwati J. speaking for the minority. While discussing this question the relevant passage from the decision of this Court in Rai Brijcase quoted at page 634 and reference was made to the decision of the Punjab High Court in Hemcase. Thereafter the observation of this Court in Bhaiyato the effect thatActs are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no now rights of action but restricting rights either under the contract or under the generalwere held not to apply to all Rent Acts irrespective of the scheme of those Acts and their provisions. This observation given by with reference to the dictum of this Court in Bhaiyacase concerned with the question of notice under Section 106. It enabled certain High Courts to make a firm departure and take the view with reference to the scheme of their respective State Acts to say that a notice was not necessary. This happened in Madras, Andhra Pradesh, Kerala, Karnataka and Punjab & Haryana. Alagiriswami J. at page 635 after having made that observation with reference to Bhaiyathat as it may, we are now concerned with the question of fixation of a fair
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Paramsivam Vs. State Tr.Insp.Of Police | Later at the request of Investigating Officer, body was exhumed in the presence of PW21-Tahsildar. After the body was exhumed, PW34-Dr.Vallinayagam collected the blood for DNA test. Blood samples of PW14-Manickammal and PW15-Subramani (mother and brother of the deceased) were also collected. After conducting DNA test and upon analysis of results of DNA typing for the samples, PW40-Asst. Director gave Ext.P32-Report and opined that "bone pieces etc. described belong to a human male individual". PW40 further opined that "the person Mani alias Paraimani to whom the bone pieces etc. belong is the biological offspring of Ms. A. Manickammal.". Evidence of PW40 would amply establish identity of body recovered from the railway track as that of the deceased Mani alias Parai Mani who is the son of PW14-Manickammal. 15. When deceased is shown to be abducted, it is for the abductors to explain how they dealt with the abducted victim. In the absence of explanation, Court is to draw inference that abductors are the murderers. 16. In State of W.B. v. Mir Mohammad Omar and others (2000) 8 SCC 382 , this Court held: “34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody.” 17. In Sucha Singh v. State of Punjab (2001) 4 SCC 375 , this Court held: “15. The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased.”“19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.”“21. We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle is to be laid down that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others.” 18. In the present case, the prosecution brought on record the evidences that accused no.1 to 3 had abducted the deceased. Therefore, it is accused nos.1 to 3 alone knew what happened to him as the deceased was found murdered within a short time after abduction. The accused nos.1 to 3 have failed to give any explanation and the Court rightly draw presumption that the accused have murdered the deceased Mani alias Parai Mani.19. The prosecution relied upon the statement of accused persons leading to discovery of facts as envisaged u/s 27 of Indian Evidence Act. Accused Nos. 1, 2 and 5 were arrested on 28.1.2004 at different times. Confession statement of accused no.1 led to recovery of Voter ID Card of Mani (MO9) and other articles i.e. MOs.4 and 5. Confession statement recorded from accused no.2-Selvaraj alias Selvan] led to recovery of Pocket Diary (MO2), Money purse (MO3) with photo of deceased and other articles-MOs.10 to 12. Confession statement of accused no.5 Driver Lingasamy led to seizure of Taxi MO1-Maruthi Omni Van (TN-23 E 5951). Accused no.3-Nirmal and accused no.4-Sureshkumar alias Suresh alias Pambatti were surrendered before the Court and on application, PW41-Investigating Officer took them for police custody. Confession statement recorded from accused no.3 led to recovery of Torch light(MO6) which was handed over to the deceased by PW2 at the time when he left the house. PW2 also identified MO6 as the torch light handed over by her at the time when the deceased left the house. Recovery of various articles of the deceased from accused nos.1 to 3 is a strong incriminating circumstance connecting the appellants with the crime. 20. Section 27 of the Evidence Act reads as under: “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 21. In Anil alias Raju Namdev Patil v. Administration of Daman & Diu, Daman and another, (2006) 13 SCC 36 , this Court held: “23.The information disclosed by the evidences leading to the discovery of a fact which is based on mental state of affair of the accused is, thus, admissible in evidence.” 22. This Court in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370 opined that when an object is discovered from an isolated place pointed out by the accused, the same would be admissible in evidence. 23. We have noticed the confessional statement of the appellants, on the basis of which the discovery of material evidence took place. 24. Fro | 1[ds]Evidence of PWs.3 and 6 also strengthens prosecution version about the grant of lease.8. Filing of suit on 02.1.2004 about two weeks prior to the occurrence heightens the probability of prosecution case. In cases of circumstantial evidence proof of motive is material consideration and a strongThe evidence of PWs.1 and 2 is cogent and consistent which clearly brings home the circumstance that deceased went along with accused nos. 2 and 3. In the Test Identification Parade conducted by PW38-Judicial Magistrate, PWs.1 and 2 have also identified accused nos. 2 and 3 which would strengthen the stand of thefrom the evidence Ext.P1- complaint we find that PW1 has clearly stated that two persons had come to their house and took the deceased in Maruthi Omni Van. In Ext.P1-Complaint, though PW1 had expressed suspicion about accused nos. 1, 6 and 7, PW1 has clearly expressed his doubts that accused nos. 1, 6 and 7 might have engaged men for abducting the deceased. Such doubts expressed in Ext.P1-Complaint is sufficient incriminating circumstance against the accused nos. 2 and 3. Credibility of PWs.1 and 2 cannot be doubted on the ground of non-mention of name of accused no.2 in Ext.P1-Complaint. The evidence of PW9 also established that the deceased was last seen alive with accused no.1-Paramasivam in Maruthi Omni Van (TN-23 E 5951) near Kinathukadavu Checkpost. In his evidence, PW9 has stated that after taking petrol for TVS-50 in a Petrol Pump near the Checkpost while he was proceeding along with PW8-Sivakumar, he saw the deceased along with accused no.1-Paramasivam in Maruthi Omni Van (MO1) and saw the others inside the Van. Since, deceased and accused no.1-Paramasivam were in inimical terms, PW9 wondered as to why accused no.1 and deceased are seen together and he asked PW8-Sivakumar about the same. Though, PW8-Sivakumar turned hostile, evidence of PW9 is trustworthy and we do not find any reason to take a different view.12. Another circumstances relied upon by the prosecution is evidence of PW15-Subramani (brother of the deceased) that accused no. 1 and another person came to the quarry to see stones. When they were crushing the stones, deceased went with them to see the stones. No doubt evidence of PW15 as to how deceased went with the accused might appear to be slightly different but due to variation of time narrating the events cannot be said in manner the PW15 narrated his statement. We are of the view that evidence of PW15 does not make any dent upon the consistent version of PWs.1 and 2 and the case of prosecution.When deceased is shown to be abducted, it is for the abductors to explain how they dealt with the abducted victim. In the absence of explanation, Court is to draw inference that abductors are theFrom the evidence on record, we find that the Prosecution was successful in bringing on record the circumstantial evidences i.e. existence of motive; the circumstances in which the deceased was last seen alive in the company of appellants-accused nos.1 to 3; death was homicidal and body was found on the railway track mutilated; the body of the deceased was identified through DNA test; on arrest of accused incriminating articles were recovered.In the present case, the prosecution brought on record the evidences that accused no.1 to 3 had abducted the deceased. Therefore, it is accused nos.1 to 3 alone knew what happened to him as the deceased was found murdered within a short time after abduction. The accused nos.1 to 3 have failed to give any explanation and the Court rightly draw presumption that the accused have murdered the deceased Mani alias Parai Mani.19. The prosecution relied upon the statement of accused persons leading to discovery of facts as envisaged u/s 27 of Indian Evidence Act. Accused Nos. 1, 2 and 5 were arrested on 28.1.2004 at different times. Confession statement of accused no.1 led to recovery of Voter ID Card of Mani (MO9) and other articles i.e. MOs.4 and 5. Confession statement recorded from accused no.2-Selvaraj alias Selvan] led to recovery of Pocket Diary (MO2), Money purse (MO3) with photo of deceased and other articles-MOs.10 to 12. Confession statement of accused no.5 Driver Lingasamy led to seizure of Taxi MO1-Maruthi Omni Van (TN-23 E 5951). Accused no.3-Nirmal and accused no.4-Sureshkumar alias Suresh alias Pambatti were surrendered before the Court and on application, PW41-Investigating Officer took them for police custody. Confession statement recorded from accused no.3 led to recovery of Torch light(MO6) which was handed over to the deceased by PW2 at the time when he left the house. PW2 also identified MO6 as the torch light handed over by her at the time when the deceased left the house. Recovery of various articles of the deceased from accused nos.1 to 3 is a strong incriminating circumstance connecting the appellants with the crime.This Court in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370 opined that when an object is discovered from an isolated place pointed out by the accused, the same would be admissible in evidence. | 1 | 3,806 | 924 | ### 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:
Later at the request of Investigating Officer, body was exhumed in the presence of PW21-Tahsildar. After the body was exhumed, PW34-Dr.Vallinayagam collected the blood for DNA test. Blood samples of PW14-Manickammal and PW15-Subramani (mother and brother of the deceased) were also collected. After conducting DNA test and upon analysis of results of DNA typing for the samples, PW40-Asst. Director gave Ext.P32-Report and opined that "bone pieces etc. described belong to a human male individual". PW40 further opined that "the person Mani alias Paraimani to whom the bone pieces etc. belong is the biological offspring of Ms. A. Manickammal.". Evidence of PW40 would amply establish identity of body recovered from the railway track as that of the deceased Mani alias Parai Mani who is the son of PW14-Manickammal. 15. When deceased is shown to be abducted, it is for the abductors to explain how they dealt with the abducted victim. In the absence of explanation, Court is to draw inference that abductors are the murderers. 16. In State of W.B. v. Mir Mohammad Omar and others (2000) 8 SCC 382 , this Court held: “34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody.” 17. In Sucha Singh v. State of Punjab (2001) 4 SCC 375 , this Court held: “15. The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased.”“19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.”“21. We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle is to be laid down that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others.” 18. In the present case, the prosecution brought on record the evidences that accused no.1 to 3 had abducted the deceased. Therefore, it is accused nos.1 to 3 alone knew what happened to him as the deceased was found murdered within a short time after abduction. The accused nos.1 to 3 have failed to give any explanation and the Court rightly draw presumption that the accused have murdered the deceased Mani alias Parai Mani.19. The prosecution relied upon the statement of accused persons leading to discovery of facts as envisaged u/s 27 of Indian Evidence Act. Accused Nos. 1, 2 and 5 were arrested on 28.1.2004 at different times. Confession statement of accused no.1 led to recovery of Voter ID Card of Mani (MO9) and other articles i.e. MOs.4 and 5. Confession statement recorded from accused no.2-Selvaraj alias Selvan] led to recovery of Pocket Diary (MO2), Money purse (MO3) with photo of deceased and other articles-MOs.10 to 12. Confession statement of accused no.5 Driver Lingasamy led to seizure of Taxi MO1-Maruthi Omni Van (TN-23 E 5951). Accused no.3-Nirmal and accused no.4-Sureshkumar alias Suresh alias Pambatti were surrendered before the Court and on application, PW41-Investigating Officer took them for police custody. Confession statement recorded from accused no.3 led to recovery of Torch light(MO6) which was handed over to the deceased by PW2 at the time when he left the house. PW2 also identified MO6 as the torch light handed over by her at the time when the deceased left the house. Recovery of various articles of the deceased from accused nos.1 to 3 is a strong incriminating circumstance connecting the appellants with the crime. 20. Section 27 of the Evidence Act reads as under: “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 21. In Anil alias Raju Namdev Patil v. Administration of Daman & Diu, Daman and another, (2006) 13 SCC 36 , this Court held: “23.The information disclosed by the evidences leading to the discovery of a fact which is based on mental state of affair of the accused is, thus, admissible in evidence.” 22. This Court in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370 opined that when an object is discovered from an isolated place pointed out by the accused, the same would be admissible in evidence. 23. We have noticed the confessional statement of the appellants, on the basis of which the discovery of material evidence took place. 24. Fro
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Evidence of PWs.3 and 6 also strengthens prosecution version about the grant of lease.8. Filing of suit on 02.1.2004 about two weeks prior to the occurrence heightens the probability of prosecution case. In cases of circumstantial evidence proof of motive is material consideration and a strongThe evidence of PWs.1 and 2 is cogent and consistent which clearly brings home the circumstance that deceased went along with accused nos. 2 and 3. In the Test Identification Parade conducted by PW38-Judicial Magistrate, PWs.1 and 2 have also identified accused nos. 2 and 3 which would strengthen the stand of thefrom the evidence Ext.P1- complaint we find that PW1 has clearly stated that two persons had come to their house and took the deceased in Maruthi Omni Van. In Ext.P1-Complaint, though PW1 had expressed suspicion about accused nos. 1, 6 and 7, PW1 has clearly expressed his doubts that accused nos. 1, 6 and 7 might have engaged men for abducting the deceased. Such doubts expressed in Ext.P1-Complaint is sufficient incriminating circumstance against the accused nos. 2 and 3. Credibility of PWs.1 and 2 cannot be doubted on the ground of non-mention of name of accused no.2 in Ext.P1-Complaint. The evidence of PW9 also established that the deceased was last seen alive with accused no.1-Paramasivam in Maruthi Omni Van (TN-23 E 5951) near Kinathukadavu Checkpost. In his evidence, PW9 has stated that after taking petrol for TVS-50 in a Petrol Pump near the Checkpost while he was proceeding along with PW8-Sivakumar, he saw the deceased along with accused no.1-Paramasivam in Maruthi Omni Van (MO1) and saw the others inside the Van. Since, deceased and accused no.1-Paramasivam were in inimical terms, PW9 wondered as to why accused no.1 and deceased are seen together and he asked PW8-Sivakumar about the same. Though, PW8-Sivakumar turned hostile, evidence of PW9 is trustworthy and we do not find any reason to take a different view.12. Another circumstances relied upon by the prosecution is evidence of PW15-Subramani (brother of the deceased) that accused no. 1 and another person came to the quarry to see stones. When they were crushing the stones, deceased went with them to see the stones. No doubt evidence of PW15 as to how deceased went with the accused might appear to be slightly different but due to variation of time narrating the events cannot be said in manner the PW15 narrated his statement. We are of the view that evidence of PW15 does not make any dent upon the consistent version of PWs.1 and 2 and the case of prosecution.When deceased is shown to be abducted, it is for the abductors to explain how they dealt with the abducted victim. In the absence of explanation, Court is to draw inference that abductors are theFrom the evidence on record, we find that the Prosecution was successful in bringing on record the circumstantial evidences i.e. existence of motive; the circumstances in which the deceased was last seen alive in the company of appellants-accused nos.1 to 3; death was homicidal and body was found on the railway track mutilated; the body of the deceased was identified through DNA test; on arrest of accused incriminating articles were recovered.In the present case, the prosecution brought on record the evidences that accused no.1 to 3 had abducted the deceased. Therefore, it is accused nos.1 to 3 alone knew what happened to him as the deceased was found murdered within a short time after abduction. The accused nos.1 to 3 have failed to give any explanation and the Court rightly draw presumption that the accused have murdered the deceased Mani alias Parai Mani.19. The prosecution relied upon the statement of accused persons leading to discovery of facts as envisaged u/s 27 of Indian Evidence Act. Accused Nos. 1, 2 and 5 were arrested on 28.1.2004 at different times. Confession statement of accused no.1 led to recovery of Voter ID Card of Mani (MO9) and other articles i.e. MOs.4 and 5. Confession statement recorded from accused no.2-Selvaraj alias Selvan] led to recovery of Pocket Diary (MO2), Money purse (MO3) with photo of deceased and other articles-MOs.10 to 12. Confession statement of accused no.5 Driver Lingasamy led to seizure of Taxi MO1-Maruthi Omni Van (TN-23 E 5951). Accused no.3-Nirmal and accused no.4-Sureshkumar alias Suresh alias Pambatti were surrendered before the Court and on application, PW41-Investigating Officer took them for police custody. Confession statement recorded from accused no.3 led to recovery of Torch light(MO6) which was handed over to the deceased by PW2 at the time when he left the house. PW2 also identified MO6 as the torch light handed over by her at the time when the deceased left the house. Recovery of various articles of the deceased from accused nos.1 to 3 is a strong incriminating circumstance connecting the appellants with the crime.This Court in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370 opined that when an object is discovered from an isolated place pointed out by the accused, the same would be admissible in evidence.
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COMMISSIONER OF CUSTOMS, MUMBAI Vs. TEX-AGE | 1. The respondents are engaged in the export of ready made garments. It has been making those exports from time to time. These exports were made after fulfilling all the legal requirements. It is also not in dispute that against those exports entire remittance was received by the respondents. The respondents have been claiming duty drawback and other benefits in respect of these exports which were also released to the respondents. 2. However, on the basis of the alleged intelligence received in the Bombay Zonal Unit of Directorate of Revenue Intelligence that the exporter was engaged in the fraudulent exports of low quality ready made garments from Nhava Sheva Sea Port by resorting to overvaluations in order to claim undue export benefits, investigations were carried out and on that basis, show cause notice was issued to the respondents which resulted in imposition of penalty etc. The respondents filed appeal there against before the Customs Excise and Service Tax Appellate Tribunal (CESTAT). The CESTAT allowed this appeal thereby quashing the deduction and the penalties etc. [2008 (221) E.L.T. 395 (Tri. - Mumbai)]. This judgment of CESTAT is under challenge in these appeals. 3. A perusal of the judgment of the CESTAT shows that the entire material placed before it has been discussed and on that basis, a finding of fact is arrived at to the extent that the allegations of flow back of the remittances by way of Hawala could not be proved by the Department. It is further recorded by the CESTAT that the invoices etc. which were raised of particular amounts were duly checked by the Department at the time when the exports were being made. However, the entire amount as reflected in the said invoices was received by the respondents. 4. In view of the aforesaid finding of fact and in the absence of any evidence to show that the money was remitted by way of Hawala, we are of the opinion that the case of over-invoicing has not been established by the Department. | 0[ds]3. A perusal of the judgment of the CESTAT shows that the entire material placed before it has been discussed and on that basis, a finding of fact is arrived at to the extent that the allegations of flow back of the remittances by way of Hawala could not be proved by the Department. It is further recorded by the CESTAT that the invoices etc. which were raised of particular amounts were duly checked by the Department at the time when the exports were being made. However, the entire amount as reflected in the said invoices was received by the respondents.4. In view of the aforesaid finding of fact and in the absence of any evidence to show that the money was remitted by way of Hawala, we are of the opinion that the case of over-invoicing has not been established by the Department. | 0 | 371 | 157 | ### 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:
1. The respondents are engaged in the export of ready made garments. It has been making those exports from time to time. These exports were made after fulfilling all the legal requirements. It is also not in dispute that against those exports entire remittance was received by the respondents. The respondents have been claiming duty drawback and other benefits in respect of these exports which were also released to the respondents. 2. However, on the basis of the alleged intelligence received in the Bombay Zonal Unit of Directorate of Revenue Intelligence that the exporter was engaged in the fraudulent exports of low quality ready made garments from Nhava Sheva Sea Port by resorting to overvaluations in order to claim undue export benefits, investigations were carried out and on that basis, show cause notice was issued to the respondents which resulted in imposition of penalty etc. The respondents filed appeal there against before the Customs Excise and Service Tax Appellate Tribunal (CESTAT). The CESTAT allowed this appeal thereby quashing the deduction and the penalties etc. [2008 (221) E.L.T. 395 (Tri. - Mumbai)]. This judgment of CESTAT is under challenge in these appeals. 3. A perusal of the judgment of the CESTAT shows that the entire material placed before it has been discussed and on that basis, a finding of fact is arrived at to the extent that the allegations of flow back of the remittances by way of Hawala could not be proved by the Department. It is further recorded by the CESTAT that the invoices etc. which were raised of particular amounts were duly checked by the Department at the time when the exports were being made. However, the entire amount as reflected in the said invoices was received by the respondents. 4. In view of the aforesaid finding of fact and in the absence of any evidence to show that the money was remitted by way of Hawala, we are of the opinion that the case of over-invoicing has not been established by the Department.
### Response:
0
### Explanation:
3. A perusal of the judgment of the CESTAT shows that the entire material placed before it has been discussed and on that basis, a finding of fact is arrived at to the extent that the allegations of flow back of the remittances by way of Hawala could not be proved by the Department. It is further recorded by the CESTAT that the invoices etc. which were raised of particular amounts were duly checked by the Department at the time when the exports were being made. However, the entire amount as reflected in the said invoices was received by the respondents.4. In view of the aforesaid finding of fact and in the absence of any evidence to show that the money was remitted by way of Hawala, we are of the opinion that the case of over-invoicing has not been established by the Department.
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Inspecting Assistant Commissioner Agricultural Income Tax Vs. Poomuilli Manakkal Parameswaran Namboodripad | a registered deed. The genuineness as well as the validity of the deed is not in dispute. (ii) On January 18, 1960 on behalf of the Agricultural Income-tax Officer, it was conceded before the High Court that the respondent was liable to be taxed only as an "individual". The implication of this concession was that the respondents family was a divided family, (iii) Various attempts made by the Department to assess the respondent as karta of his family even after the decision of the High Court on January 18, 1960 were frustrated by the orders of the High Court referred to earlier and (iv) The respondent and the other members of his quondam family were assessed as "individuals" from 1958-1964. Those assessments had become final and tax levied on them had been paid. 14. Section 3 (1) is the charging section in the Act. That section reads:"Agricultural Income-tax at the rate or rates specified in the Schedule of this Act shall be charged for each financial year in accordance with and subject to the provisions of this Act on the total agricultural income of the previous year of every person." 15. "Person" is defined in Section 2 (m) as follows:-""person" means any individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for another, either as owner trustee, receiver, common manager, administrator, or executor or in any capacity recognised by law and includes, a firm, or a company, an association of individuals, whether incorporated or not, and any institution capable of holding property." 16. Hindu undivided family as defined in Section 2 (kk) includes a family governed by Madras Nambudiri Act. 1932. 17. Under the Act what is brought to tax in an assessment year is the income of the assessee in the previous year. The scheme of taxation under the Act is similar to that under the Indian Income-tax Act, 1922. The liability to pay tax under the Act in respect of any income is incurred as and when the income is earned and the total income on which the tax is payable in any particular previous year gets settled at the end of the previous year. Section 29 is only a machinery section. This Court has held that Section 25-A of the Indian Income-tax Act, 1922 is only a machinery section. The same must be the position in regard to Section 29 of the Act. 18. Section 29 is attracted to an assessment proceedings only if one of the two conditions prescribed in Section 29 (1) is established. Either the family in question was being assessed as an undivided family in the previous assessment year or that family is being assessed for the first time. If neither of these conditions exist, Section 29 has no application whatsoever. The deeming provision contained in Section 29 (3) can have application only in cases where one or the other condition prescribed in S. 29(1) is satisfied and not otherwise. As seen earlier, every attempt made by the assessing authority to assess the quondam family of the respondent was set aside by the High Court. The High Court has repeatedly held that, that family is a divided family. Again the assessing authority itself in the previous years had proceeded on the basis that the family in question is a divided family. It had not only not assessed that family as an undivided family but had assessed the individual members of that family as divided members of that family. Hence the question whether that family was divided or undivided had been gone into in the earlier years and decided. That being so, it cannot be said that the family was "hitherto assessed as a Hindu undivided family." Nor can it be said that the family was "being assessed for the first time as a Hindu undivided family". As seen earlier that family was sought to be assessed as Hindu undivided family earlier but ultimately the assessing authority had to assess the members of that family as members of a divided family. In other words it had held the family to be divided one. Such a family cannot be considered as being "assessed for the first time as a Hindu undivided family". The expression "which (meaning family) is being assessed for the first time as a Hindu undivided family" presupposes the existence of the family. That is a condition precedent. Section 29 (1) does not permit the assessing authority to create a family by rejoining the divided parts or otherwise. If that is not so, families which had been divided years back can be again resurrected by the assessing authorities for the purpose of the Act. The family referred to in Section 29 (1) is a family known to law and not a deemed family. The amendment of Section 29 has introduced considerable confusion into that section. At the time of the assessment either there is a family or there is no family. If there is a family its liability has to be judged on the basis of the Act. If the family has ceased to exist even before the assessment proceedings started then there can be no family which is being assessed to tax for the first time. Possibly the intention of the legislature was to bring in the cases of undivided families not taxed in the previous years which were in existence during the whole or part of the previous year but were divided before the assessment proceedings commenced. It is not necessary for us in this case to decide whether that intention has been expressed with sufficient clarity so as to make it enforceable. Suffice it to say that in this case, the family sought to be taxed was non-existing in the concerned previous years and hence cannot be considered as a Hindu undivided family "being assessed for the first time". That being so there is no room for application of the "deeming" provision in Section 29 (3). | 0[ds]13. Before proceeding to examine the scope of Section 29, let us recapitulate the events that had taken place.-(i) As long back as March 30, 1958, there was a partition in the family of the respondent; that partition is evidenced by a registered deed. The genuineness as well as the validity of the deed is not in dispute. (ii) On January 18, 1960 on behalf of the Agricultural Income-tax Officer, it was conceded before the High Court that the respondent was liable to be taxed only as an "individual". The implication of this concession was that the respondents family was a divided family, (iii) Various attempts made by the Department to assess the respondent as karta of his family even after the decision of the High Court on January 18, 1960 were frustrated by the orders of the High Court referred to earlier and (iv) The respondent and the other members of his quondam family were assessed as "individuals" from 1958-1964. Those assessments had become final and tax levied on them had been paid17. Under the Act what is brought to tax in an assessment year is the income of the assessee in the previous year. The scheme of taxation under the Act is similar to that under the Indian Income-tax Act, 1922. The liability to pay tax under the Act in respect of any income is incurred as and when the income is earned and the total income on which the tax is payable in any particular previous year gets settled at the end of the previous year. Section 29 is only a machinery section. This Court has held that Section 25-A of the Indian Income-tax Act, 1922 is only a machinery section. The same must be the position in regard to Section 29 of the Act18. Section 29 is attracted to an assessment proceedings only if one of the two conditions prescribed in Section 29 (1) is established. Either the family in question was being assessed as an undivided family in the previous assessment year or that family is being assessed for the first time. If neither of these conditions exist, Section 29 has no application whatsoever. The deeming provision contained in Section 29 (3) can have application only in cases where one or the other condition prescribed in S. 29(1) is satisfied and not otherwise. As seen earlier, every attempt made by the assessing authority to assess the quondam family of the respondent was set aside by the High Court. The High Court has repeatedly held that, that family is a divided family. Again the assessing authority itself in the previous years had proceeded on the basis that the family in question is a divided family. It had not only not assessed that family as an undivided family but had assessed the individual members of that family as divided members of that family. Hence the question whether that family was divided or undivided had been gone into in the earlier years and decided. That being so, it cannot be said that the family was "hitherto assessed as a Hindu undivided family." Nor can it be said that the family was "being assessed for the first time as a Hindu undivided family". As seen earlier that family was sought to be assessed as Hindu undivided family earlier but ultimately the assessing authority had to assess the members of that family as members of a divided family. In other words it had held the family to be divided one. Such a family cannot be considered as being "assessed for the first time as a Hindu undivided family". The expression "which (meaning family) is being assessed for the first time as a Hindu undivided family" presupposes the existence of the family. That is a condition precedent. Section 29 (1) does not permit the assessing authority to create a family by rejoining the divided parts or otherwise. If that is not so, families which had been divided years back can be again resurrected by the assessing authorities for the purpose of the Act. The family referred to in Section 29 (1) is a family known to law and not a deemed family. The amendment of Section 29 has introduced considerable confusion into that section. At the time of the assessment either there is a family or there is no family. If there is a family its liability has to be judged on the basis of the Act. If the family has ceased to exist even before the assessment proceedings started then there can be no family which is being assessed to tax for the first time. Possibly the intention of the legislature was to bring in the cases of undivided families not taxed in the previous years which were in existence during the whole or part of the previous year but were divided before the assessment proceedings commenced. It is not necessary for us in this case to decide whether that intention has been expressed with sufficient clarity so as to make it enforceable. Suffice it to say that in this case, the family sought to be taxed was non-existing in the concerned previous years and hence cannot be considered as a Hindu undivided family "being assessed for the first time". That being so there is no room for application of the "deeming" provision in Section 29 (3)8. The amended provision was given retrospective effect with effect from April 1, 1958. Taking advantage of the amendment of Section 29, the Department again issued a notice to the respondent on June 1, 1964 under Section 35 of the Act calling upon him to show cause why he should not be assessed as the karta of his H. U. F. for the period from November 1, 1956 to March 31, 1958. It may be noted thatl that date the respondent and other members of his former family were being assessed as "individuals" and the tax so levied had been paid. In other words for the earlier assessment years, the Department had proceeded on the basis that the family was a divided family. | 0 | 3,909 | 1,124 | ### 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:
a registered deed. The genuineness as well as the validity of the deed is not in dispute. (ii) On January 18, 1960 on behalf of the Agricultural Income-tax Officer, it was conceded before the High Court that the respondent was liable to be taxed only as an "individual". The implication of this concession was that the respondents family was a divided family, (iii) Various attempts made by the Department to assess the respondent as karta of his family even after the decision of the High Court on January 18, 1960 were frustrated by the orders of the High Court referred to earlier and (iv) The respondent and the other members of his quondam family were assessed as "individuals" from 1958-1964. Those assessments had become final and tax levied on them had been paid. 14. Section 3 (1) is the charging section in the Act. That section reads:"Agricultural Income-tax at the rate or rates specified in the Schedule of this Act shall be charged for each financial year in accordance with and subject to the provisions of this Act on the total agricultural income of the previous year of every person." 15. "Person" is defined in Section 2 (m) as follows:-""person" means any individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for another, either as owner trustee, receiver, common manager, administrator, or executor or in any capacity recognised by law and includes, a firm, or a company, an association of individuals, whether incorporated or not, and any institution capable of holding property." 16. Hindu undivided family as defined in Section 2 (kk) includes a family governed by Madras Nambudiri Act. 1932. 17. Under the Act what is brought to tax in an assessment year is the income of the assessee in the previous year. The scheme of taxation under the Act is similar to that under the Indian Income-tax Act, 1922. The liability to pay tax under the Act in respect of any income is incurred as and when the income is earned and the total income on which the tax is payable in any particular previous year gets settled at the end of the previous year. Section 29 is only a machinery section. This Court has held that Section 25-A of the Indian Income-tax Act, 1922 is only a machinery section. The same must be the position in regard to Section 29 of the Act. 18. Section 29 is attracted to an assessment proceedings only if one of the two conditions prescribed in Section 29 (1) is established. Either the family in question was being assessed as an undivided family in the previous assessment year or that family is being assessed for the first time. If neither of these conditions exist, Section 29 has no application whatsoever. The deeming provision contained in Section 29 (3) can have application only in cases where one or the other condition prescribed in S. 29(1) is satisfied and not otherwise. As seen earlier, every attempt made by the assessing authority to assess the quondam family of the respondent was set aside by the High Court. The High Court has repeatedly held that, that family is a divided family. Again the assessing authority itself in the previous years had proceeded on the basis that the family in question is a divided family. It had not only not assessed that family as an undivided family but had assessed the individual members of that family as divided members of that family. Hence the question whether that family was divided or undivided had been gone into in the earlier years and decided. That being so, it cannot be said that the family was "hitherto assessed as a Hindu undivided family." Nor can it be said that the family was "being assessed for the first time as a Hindu undivided family". As seen earlier that family was sought to be assessed as Hindu undivided family earlier but ultimately the assessing authority had to assess the members of that family as members of a divided family. In other words it had held the family to be divided one. Such a family cannot be considered as being "assessed for the first time as a Hindu undivided family". The expression "which (meaning family) is being assessed for the first time as a Hindu undivided family" presupposes the existence of the family. That is a condition precedent. Section 29 (1) does not permit the assessing authority to create a family by rejoining the divided parts or otherwise. If that is not so, families which had been divided years back can be again resurrected by the assessing authorities for the purpose of the Act. The family referred to in Section 29 (1) is a family known to law and not a deemed family. The amendment of Section 29 has introduced considerable confusion into that section. At the time of the assessment either there is a family or there is no family. If there is a family its liability has to be judged on the basis of the Act. If the family has ceased to exist even before the assessment proceedings started then there can be no family which is being assessed to tax for the first time. Possibly the intention of the legislature was to bring in the cases of undivided families not taxed in the previous years which were in existence during the whole or part of the previous year but were divided before the assessment proceedings commenced. It is not necessary for us in this case to decide whether that intention has been expressed with sufficient clarity so as to make it enforceable. Suffice it to say that in this case, the family sought to be taxed was non-existing in the concerned previous years and hence cannot be considered as a Hindu undivided family "being assessed for the first time". That being so there is no room for application of the "deeming" provision in Section 29 (3).
### Response:
0
### Explanation:
29, let us recapitulate the events that had taken place.-(i) As long back as March 30, 1958, there was a partition in the family of the respondent; that partition is evidenced by a registered deed. The genuineness as well as the validity of the deed is not in dispute. (ii) On January 18, 1960 on behalf of the Agricultural Income-tax Officer, it was conceded before the High Court that the respondent was liable to be taxed only as an "individual". The implication of this concession was that the respondents family was a divided family, (iii) Various attempts made by the Department to assess the respondent as karta of his family even after the decision of the High Court on January 18, 1960 were frustrated by the orders of the High Court referred to earlier and (iv) The respondent and the other members of his quondam family were assessed as "individuals" from 1958-1964. Those assessments had become final and tax levied on them had been paid17. Under the Act what is brought to tax in an assessment year is the income of the assessee in the previous year. The scheme of taxation under the Act is similar to that under the Indian Income-tax Act, 1922. The liability to pay tax under the Act in respect of any income is incurred as and when the income is earned and the total income on which the tax is payable in any particular previous year gets settled at the end of the previous year. Section 29 is only a machinery section. This Court has held that Section 25-A of the Indian Income-tax Act, 1922 is only a machinery section. The same must be the position in regard to Section 29 of the Act18. Section 29 is attracted to an assessment proceedings only if one of the two conditions prescribed in Section 29 (1) is established. Either the family in question was being assessed as an undivided family in the previous assessment year or that family is being assessed for the first time. If neither of these conditions exist, Section 29 has no application whatsoever. The deeming provision contained in Section 29 (3) can have application only in cases where one or the other condition prescribed in S. 29(1) is satisfied and not otherwise. As seen earlier, every attempt made by the assessing authority to assess the quondam family of the respondent was set aside by the High Court. The High Court has repeatedly held that, that family is a divided family. Again the assessing authority itself in the previous years had proceeded on the basis that the family in question is a divided family. It had not only not assessed that family as an undivided family but had assessed the individual members of that family as divided members of that family. Hence the question whether that family was divided or undivided had been gone into in the earlier years and decided. That being so, it cannot be said that the family was "hitherto assessed as a Hindu undivided family." Nor can it be said that the family was "being assessed for the first time as a Hindu undivided family". As seen earlier that family was sought to be assessed as Hindu undivided family earlier but ultimately the assessing authority had to assess the members of that family as members of a divided family. In other words it had held the family to be divided one. Such a family cannot be considered as being "assessed for the first time as a Hindu undivided family". The expression "which (meaning family) is being assessed for the first time as a Hindu undivided family" presupposes the existence of the family. That is a condition precedent. Section 29 (1) does not permit the assessing authority to create a family by rejoining the divided parts or otherwise. If that is not so, families which had been divided years back can be again resurrected by the assessing authorities for the purpose of the Act. The family referred to in Section 29 (1) is a family known to law and not a deemed family. The amendment of Section 29 has introduced considerable confusion into that section. At the time of the assessment either there is a family or there is no family. If there is a family its liability has to be judged on the basis of the Act. If the family has ceased to exist even before the assessment proceedings started then there can be no family which is being assessed to tax for the first time. Possibly the intention of the legislature was to bring in the cases of undivided families not taxed in the previous years which were in existence during the whole or part of the previous year but were divided before the assessment proceedings commenced. It is not necessary for us in this case to decide whether that intention has been expressed with sufficient clarity so as to make it enforceable. Suffice it to say that in this case, the family sought to be taxed was non-existing in the concerned previous years and hence cannot be considered as a Hindu undivided family "being assessed for the first time". That being so there is no room for application of the "deeming" provision in Section 29 (3)8. The amended provision was given retrospective effect with effect from April 1, 1958. Taking advantage of the amendment of Section 29, the Department again issued a notice to the respondent on June 1, 1964 under Section 35 of the Act calling upon him to show cause why he should not be assessed as the karta of his H. U. F. for the period from November 1, 1956 to March 31, 1958. It may be noted thatl that date the respondent and other members of his former family were being assessed as "individuals" and the tax so levied had been paid. In other words for the earlier assessment years, the Department had proceeded on the basis that the family was a divided family.
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Kathiawar Industries Limited Vs. Jaffrabad Municipality | which gives a list of items which are exempt from octroi duty contains in item No. 6, a sub-item in Gujarat which means "Salt". Thus under item 23 "Salt for Factory" is liable to octroi duty. The octroi duty may be imposed under section 3 on "animals or goods, or both, within the o ctroi limits brought for consumption or use therein". Oh the facts found, namely that uncrushed salt was brought into the factory situate within the octroi limits and crushed salt taken away for export from the octroi limits can it be said t hat the salt thus brought are goods for consumption or use therein. It is the common case that the uncrushed salt as brought into the octroi limits is crushed and in the crushed form sent to the jetty for export. The finding of the High Court is that the crushing of the uncrushed salt and sending the crushed salt to the jetty within the octroi limits will be used therein as required under section 3.In this appeal it is necessary for us to consider the scope of the I words "consumption" and "use". The precise meaning to be given to the words "consumption" and "use will depend upon the context in which they are used. These words are of wide import. In the Constitution of India, Entry 52 in List II in Seventh Schedule a right to impose tax "on entry of goods into the local area for consumption, use or sale" is conferred. In Burmah Shell oil Storage &Distributing Co. India Ltd. v. The Belgaum Borough Municipality this Court after tracing the history of octroi and terminal tax observed that while terminal tax is a kind or octroi which is concerned only with the entry of goods in a local area irrespective of whether they would be used there or not, octrois were taxes on goods brought into the area for consumption. use or sale. They were leviable in respect of the goods put to some use or the other in the area but only if they were meant for such user. 4. In considering the meaning of the words "consumption" and "use" this Court observed in Burmah Shell case (supra) that the word consumption; its primary sense means the act of consuming and in ordinary parlance means the use of an article in a way which destroys, wastes or uses up that article. But in some legal contexts, the word "consumption? has a wider meaning. It is not necessary that by the act of consumption the commodity must be destroyed or used up. n M/s. Anwarkhat Mahboob Co. v. The State of Bombay (now Maharashtra) and others, the question that arose was whether conversion of one commodity into another commercially different article would amount to consumption. The facts of the case were that tobacco was purchased and in the Bombay State the stem and dust from the tobacco was removed. It was contended that removing the stem and dust from the tobacco did not amount to consumption of tobacco or had the effect of converting tobacco into an article commercially different. The Court held that when the tobacco was delivered in the State of Bombay for the purchase of changing it into a commercially different article, viz., biddipatti the delivery was for the purpose of consumption. This Court followed the decision in State of Travancore Cochin and ors. v Sanmugha Vilas Cashew Nut Factory and Ors. wherein it was held that the raw cashew nuts were put through a process and new articles of commerce, namely cashew nut oil and edible cashew nut kernels were obtained. The Court expressed the view t hat the raw cashew nut is consumed in the process. On the facts the High Court found alter referring to the different processes of baking or roasting. Shelling pressing, pealing etc. that although most of the process is done by hand, part of it is also done mechanically by drums. Oil is extracted out of the outer shells as a result of roasting.. After roasting the outer shells are broken and the nuts are obtained. The i J poison is eliminated by pealing oil the inner skin. By this process of manufacture. the respondents really consume the raw cashew and produce new commodities. This Court accepted this finding and observed at p. 113 that the raw cashew nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew-nut oil and edible cashew nut kernels, are obtained. In Anwarkhan Mahboob Co. (supra) this Court gave the example of the process through which cotton is put through before ultimately the final product t he wearing apparel is consumed by men, women and children. The Court observed: "But before cotton has become a wearing apparel, it passes, through the hands of different producers, each of whom adds some utility to the commodity received by him. There is first the act of ginning; ginned Cotton is spun into yarn by the spinner; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor." At each of these stages distinct utilities are produced and what is produced is at the next stage consumed. It is usual, and correct to speak of raw cotton being consumed in ginning.Applying this test the conclusion is irresistible that when uncrushed salt is crushed in the factory it is commercially a different article and the uncrushed salt must be held to have been consumed. The word "use" is of wider import than "consumption". It cannot be denied that the uncrushed salt has been used and by the user a new product crushed salt has com e into existence. 5. On a consideration of the facts and circumstances of the case we are satisfied that octroi is leviable on the uncrushed salt which is brought-to the octroi area and crushed as the activity would amount to both consumption and use of the uncrushed salt. | 0[ds]The precise meaning to be given to the words "consumption" and "use will depend upon the context in which they are used. These words are of wide import. In the Constitution of India, Entry 52 in List II in Seventh Schedule a right to impose tax "on entry of goods into the local area for consumption, use or sale" is conferred. In Burmah Shell oil Storage &Distributing Co. India Ltd. v. The Belgaum Borough Municipality this Court after tracing the history of octroi and terminal tax observed that while terminal tax is a kind or octroi which is concerned only with the entry of goods in a local area irrespective of whether they would be used there or not, octrois were taxes on goods brought into the area for consumption. use or sale. They were leviable in respect of the goods put to some use or the other in the area but only if they were meant for such userIn considering the meaning of the words "consumption" and "use" this Court observed in Burmah Shell case (supra) that the word consumption; its primary sense means the act of consuming and in ordinary parlance means the use of an article in a way which destroys, wastes or uses up that article. But in some legal contexts, the word "consumption? has a wider meaning. It is not necessary that by the act of consumption the commodity must be destroyed or used up. n M/s. Anwarkhat Mahboob Co. v. The State of Bombay (now Maharashtra) and others, the question that arose was whether conversion of one commodity into another commercially different article would amount to consumption. The facts of the case were that tobacco was purchased and in the Bombay State the stem and dust from the tobacco was removed. It was contended that removing the stem and dust from the tobacco did not amount to consumption of tobacco or had the effect of converting tobacco into an article commercially different. The Court held that when the tobacco was delivered in the State of Bombay for the purchase of changing it into a commercially different article, viz., biddipatti the delivery was for the purpose of consumption. This Court followed the decision in State of Travancore Cochin and ors. v Sanmugha Vilas Cashew Nut Factory and Ors. wherein it was held that the raw cashew nuts were put through a process and new articles of commerce, namely cashew nut oil and edible cashew nut kernels were obtained. The Court expressed the view t hat the raw cashew nut is consumed in the process. On the facts the High Court found alter referring to the different processes of baking or roasting. Shelling pressing, pealing etc. that although most of the process is done by hand, part of it is also done mechanically by drums. Oil is extracted out of the outer shells as a result of roasting.. After roasting the outer shells are broken and the nuts are obtained. The i J poison is eliminated by pealing oil the inner skin. By this process of manufacture. the respondents really consume the raw cashew and produce new commodities. This Court accepted this finding and observed at p. 113 that the raw cashew nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew-nut oil and edible cashew nut kernels, are obtained. In Anwarkhan Mahboob Co. (supra) this Court gave the example of the process through which cotton is put through before ultimately the final product t he wearing apparel is consumed by men, women and children. The Court observed: "But before cotton has become a wearing apparel, it passes, through the hands of different producers, each of whom adds some utility to the commodity received by him. There is first the act of ginning; ginned Cotton is spun into yarn by the spinner; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor." At each of these stages distinct utilities are produced and what is produced is at the next stage consumed. It is usual, and correct to speak of raw cotton being consumed in ginning.Applying this test the conclusion is irresistible that when uncrushed salt is crushed in the factory it is commercially a different article and the uncrushed salt must be held to have been consumed. The word "use" is of wider import than "consumption". It cannot be denied that the uncrushed salt has been used and by the user a new product crushed salt has com e into existenceOn a consideration of the facts and circumstances of the case we are satisfied that octroi is leviable on the uncrushed salt which is brought-to the octroi area and crushed as the activity would amount to both consumption and use of the uncrushed salt. | 0 | 2,253 | 895 | ### 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:
which gives a list of items which are exempt from octroi duty contains in item No. 6, a sub-item in Gujarat which means "Salt". Thus under item 23 "Salt for Factory" is liable to octroi duty. The octroi duty may be imposed under section 3 on "animals or goods, or both, within the o ctroi limits brought for consumption or use therein". Oh the facts found, namely that uncrushed salt was brought into the factory situate within the octroi limits and crushed salt taken away for export from the octroi limits can it be said t hat the salt thus brought are goods for consumption or use therein. It is the common case that the uncrushed salt as brought into the octroi limits is crushed and in the crushed form sent to the jetty for export. The finding of the High Court is that the crushing of the uncrushed salt and sending the crushed salt to the jetty within the octroi limits will be used therein as required under section 3.In this appeal it is necessary for us to consider the scope of the I words "consumption" and "use". The precise meaning to be given to the words "consumption" and "use will depend upon the context in which they are used. These words are of wide import. In the Constitution of India, Entry 52 in List II in Seventh Schedule a right to impose tax "on entry of goods into the local area for consumption, use or sale" is conferred. In Burmah Shell oil Storage &Distributing Co. India Ltd. v. The Belgaum Borough Municipality this Court after tracing the history of octroi and terminal tax observed that while terminal tax is a kind or octroi which is concerned only with the entry of goods in a local area irrespective of whether they would be used there or not, octrois were taxes on goods brought into the area for consumption. use or sale. They were leviable in respect of the goods put to some use or the other in the area but only if they were meant for such user. 4. In considering the meaning of the words "consumption" and "use" this Court observed in Burmah Shell case (supra) that the word consumption; its primary sense means the act of consuming and in ordinary parlance means the use of an article in a way which destroys, wastes or uses up that article. But in some legal contexts, the word "consumption? has a wider meaning. It is not necessary that by the act of consumption the commodity must be destroyed or used up. n M/s. Anwarkhat Mahboob Co. v. The State of Bombay (now Maharashtra) and others, the question that arose was whether conversion of one commodity into another commercially different article would amount to consumption. The facts of the case were that tobacco was purchased and in the Bombay State the stem and dust from the tobacco was removed. It was contended that removing the stem and dust from the tobacco did not amount to consumption of tobacco or had the effect of converting tobacco into an article commercially different. The Court held that when the tobacco was delivered in the State of Bombay for the purchase of changing it into a commercially different article, viz., biddipatti the delivery was for the purpose of consumption. This Court followed the decision in State of Travancore Cochin and ors. v Sanmugha Vilas Cashew Nut Factory and Ors. wherein it was held that the raw cashew nuts were put through a process and new articles of commerce, namely cashew nut oil and edible cashew nut kernels were obtained. The Court expressed the view t hat the raw cashew nut is consumed in the process. On the facts the High Court found alter referring to the different processes of baking or roasting. Shelling pressing, pealing etc. that although most of the process is done by hand, part of it is also done mechanically by drums. Oil is extracted out of the outer shells as a result of roasting.. After roasting the outer shells are broken and the nuts are obtained. The i J poison is eliminated by pealing oil the inner skin. By this process of manufacture. the respondents really consume the raw cashew and produce new commodities. This Court accepted this finding and observed at p. 113 that the raw cashew nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew-nut oil and edible cashew nut kernels, are obtained. In Anwarkhan Mahboob Co. (supra) this Court gave the example of the process through which cotton is put through before ultimately the final product t he wearing apparel is consumed by men, women and children. The Court observed: "But before cotton has become a wearing apparel, it passes, through the hands of different producers, each of whom adds some utility to the commodity received by him. There is first the act of ginning; ginned Cotton is spun into yarn by the spinner; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor." At each of these stages distinct utilities are produced and what is produced is at the next stage consumed. It is usual, and correct to speak of raw cotton being consumed in ginning.Applying this test the conclusion is irresistible that when uncrushed salt is crushed in the factory it is commercially a different article and the uncrushed salt must be held to have been consumed. The word "use" is of wider import than "consumption". It cannot be denied that the uncrushed salt has been used and by the user a new product crushed salt has com e into existence. 5. On a consideration of the facts and circumstances of the case we are satisfied that octroi is leviable on the uncrushed salt which is brought-to the octroi area and crushed as the activity would amount to both consumption and use of the uncrushed salt.
### Response:
0
### Explanation:
The precise meaning to be given to the words "consumption" and "use will depend upon the context in which they are used. These words are of wide import. In the Constitution of India, Entry 52 in List II in Seventh Schedule a right to impose tax "on entry of goods into the local area for consumption, use or sale" is conferred. In Burmah Shell oil Storage &Distributing Co. India Ltd. v. The Belgaum Borough Municipality this Court after tracing the history of octroi and terminal tax observed that while terminal tax is a kind or octroi which is concerned only with the entry of goods in a local area irrespective of whether they would be used there or not, octrois were taxes on goods brought into the area for consumption. use or sale. They were leviable in respect of the goods put to some use or the other in the area but only if they were meant for such userIn considering the meaning of the words "consumption" and "use" this Court observed in Burmah Shell case (supra) that the word consumption; its primary sense means the act of consuming and in ordinary parlance means the use of an article in a way which destroys, wastes or uses up that article. But in some legal contexts, the word "consumption? has a wider meaning. It is not necessary that by the act of consumption the commodity must be destroyed or used up. n M/s. Anwarkhat Mahboob Co. v. The State of Bombay (now Maharashtra) and others, the question that arose was whether conversion of one commodity into another commercially different article would amount to consumption. The facts of the case were that tobacco was purchased and in the Bombay State the stem and dust from the tobacco was removed. It was contended that removing the stem and dust from the tobacco did not amount to consumption of tobacco or had the effect of converting tobacco into an article commercially different. The Court held that when the tobacco was delivered in the State of Bombay for the purchase of changing it into a commercially different article, viz., biddipatti the delivery was for the purpose of consumption. This Court followed the decision in State of Travancore Cochin and ors. v Sanmugha Vilas Cashew Nut Factory and Ors. wherein it was held that the raw cashew nuts were put through a process and new articles of commerce, namely cashew nut oil and edible cashew nut kernels were obtained. The Court expressed the view t hat the raw cashew nut is consumed in the process. On the facts the High Court found alter referring to the different processes of baking or roasting. Shelling pressing, pealing etc. that although most of the process is done by hand, part of it is also done mechanically by drums. Oil is extracted out of the outer shells as a result of roasting.. After roasting the outer shells are broken and the nuts are obtained. The i J poison is eliminated by pealing oil the inner skin. By this process of manufacture. the respondents really consume the raw cashew and produce new commodities. This Court accepted this finding and observed at p. 113 that the raw cashew nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew-nut oil and edible cashew nut kernels, are obtained. In Anwarkhan Mahboob Co. (supra) this Court gave the example of the process through which cotton is put through before ultimately the final product t he wearing apparel is consumed by men, women and children. The Court observed: "But before cotton has become a wearing apparel, it passes, through the hands of different producers, each of whom adds some utility to the commodity received by him. There is first the act of ginning; ginned Cotton is spun into yarn by the spinner; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor." At each of these stages distinct utilities are produced and what is produced is at the next stage consumed. It is usual, and correct to speak of raw cotton being consumed in ginning.Applying this test the conclusion is irresistible that when uncrushed salt is crushed in the factory it is commercially a different article and the uncrushed salt must be held to have been consumed. The word "use" is of wider import than "consumption". It cannot be denied that the uncrushed salt has been used and by the user a new product crushed salt has com e into existenceOn a consideration of the facts and circumstances of the case we are satisfied that octroi is leviable on the uncrushed salt which is brought-to the octroi area and crushed as the activity would amount to both consumption and use of the uncrushed salt.
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Punjab University, Chandigarh Vs. Vijay Singh Lamba Etc. Etc | notice of the meetings has to go to all the members of the committee and it is left to each individual member whether or not to attend a particular meeting. Every member has thus the choice and the opportunity to attend every meeting of the committee. If any member considers the matter which is to be discussed or determined in a particular meeting as of such importance that he must make his voice heard and cast his vote, it is open to him and indeed he is entitled to attend the meeting and make his presence felt. Though a faint attempt was made in these appeals for the first time to suggest that the notice of the meetings of the Standing Committee was not served on all the 3 members of the committee we are satisfied that such a notice was in fact given and someone or the other of the 3 members chose to remain absent at the meetings of the Standing Committee. There is, therefore, no warrant for the hypothesis that had the third member attended the meetings he would have dissented from the decision of the 2 other members so as to necessitate a reference to the Vice-Chancellor under Regulation 32.1.Apart from this consideration, we are unable to agree that anything contained in Regulation 32.1 can affect the power of the Syndicate to fix the quorum for the meetings of the Standing Committee. If the quorum consists of 2 members, any 2 out of the 3 members can perform the functions of the Standing Committee, though the committee may be composed of 3 members. When Regulation 32.1 speaks of the committee being unanimous, it refers to the unanimity of the members who for the time being are sitting as the committee and who, by forming the quorum can validly and lawfully discharge the functions of the committee and transact all business on behalf of the committee. If only 2 members out of the 3 who compose the Standing Committee have participated in the business of any particular meeting, the question to ask under Regulation 32.1 is whether there is unanimity amongst those two members. If they are unanimous their decision is final. If they differ, the matter has to be referred to the Vice-Chancellor. Thus, the fixation of quorum neither makes Regulation 32.1 a dead letter nor does it affect its application or utility. With respect , we are unable to appreciate the reasoning of the majority that "The manner in which Regulation 32.1 has been framed leaves no doubt that the consideration of the question of students misconduct and the use of unfair means in examination by the m has been placed at a high pedestal" and that therefore "there is no escape from the conclusion that the consideration of the case of a student against whom there are allegations of misconduct or of use unfair means in an examination, has to b e by all the members of the Standing Committee and not by some of them and that any decision of the Syndicate to the contrary would he violative of the letter and spirit of Regulation 32.1." The fixation of quorum by the Syndicate violates neither the letter nor the spirit of that Regulation.The majority Judges were therefore in error in holding that Regulation 32.1 "clearly negatives the fixation of a quorum and makes it incumbent that the decision must be taken by the full Committee" for the reason that "In a way, this regulation fixes the quorum at the number of members originally appointed". The learned Judges read far more into Regulation 32.1 than there is in it and we see no warrant for construing that regulation as fixing the quorum at the number of members originally appointed to the committee. Regulation 32.1 is aimed at conferring finally on decision of the committee if they are unanimous and at leaving the validity and propriety of a dissenting decision to the judgment of the Vice-Chancellor who can deal with the matter himself or refer it to the decision of the Syndicate. Regulation 3 2.1 does not even remotely attempt to fix the quorum. That is not its purpose, and it sounds strange that the Regulation, by a circuitous method, should fix the quorum at the full complement of members. Quorums are seldom so fixed and were it intended that the entire committee must decide every case, Regulation 31 could appropriately have said so.6. We share the deep concern voiced in the dissenting opinion of Sandhawalia J. that there was no justification for ignoring the stream of precedents which had consistently recognised the validity of decisions taken by 2 members of the Standing Committee. In Bharat Indu v. The Punjab University and another(1), Regulation 19 which was the precursor of and was identical with Regulation 32.1 came before the Punjab High Court. By a closely considered judgment, Dua J. who spoke for the Bench specifically rejected the argument accepted by the two learned Judges in the instant case. In Miss Manjinder Kaur v. The Punjab University (Civil Writ No. 3516 of 1972, decided on March 30, 1973), the same contention was repeated on behalf of the students and once again it was considered and rejected. It is quite true that judicial consistency is not the highest state of legal bliss. Law must grow, it cannot afford to be static and therefore Judges ought to employ an intelligent technique in the use of precedents. Precedents, as observed by Lord Macmillan, should be "stepping stones and not halting places".(2) But, Justice Cardozos caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings. The language of the Regulations called for no review of established precedents. Nor indeed is there any fear of unfairness if only 2 members decided the cases of students accused of adopting unfair practices in the examinations. In such cases it is so much better that the law is certain. | 1[ds]It is urged on behalf of the respondents that the possible dissent of the 3rd member, were he present, would have necessitated a reference to the Vice-Chancellor who might not agree with the majority opinion, which shows that no sanctity can attach to a decision rendered by less than the whole body of 3 members of the Standingshare the deep concern voiced in the dissenting opinion of Sandhawalia J. that there was no justification for ignoring the stream of precedents which had consistently recognised the validity of decisions taken by 2 members of the Standing Committee. In Bharat Indu v. The Punjab University and another(1), Regulation 19 which was the precursor of and was identical with Regulation 32.1 came before the Punjab High Court. By a closely considered judgment, Dua J. who spoke for the Bench specifically rejected the argument accepted by the two learned Judges in the instant case. In Miss Manjinder Kaur v. The Punjab University (Civil Writ No. 3516 of 1972, decided on March 30, 1973), the same contention was repeated on behalf of the students and once again it was considered and rejected. It is quite true that judicial consistency is not the highest state of legal bliss. Law must grow, it cannot afford to be static and therefore Judges ought to employ an intelligent technique in the use of precedents. Precedents, as observed by Lord Macmillan, should be "stepping stones and not halting places".(2) But, Justice Cardozos caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings. The language of the Regulations called for no review of established precedents. Nor indeed is there any fear of unfairness if only 2 members decided the cases of students accused of adopting unfair practices in the examinations. In such cases it is so much better that the law is certain. | 1 | 2,786 | 356 | ### 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:
notice of the meetings has to go to all the members of the committee and it is left to each individual member whether or not to attend a particular meeting. Every member has thus the choice and the opportunity to attend every meeting of the committee. If any member considers the matter which is to be discussed or determined in a particular meeting as of such importance that he must make his voice heard and cast his vote, it is open to him and indeed he is entitled to attend the meeting and make his presence felt. Though a faint attempt was made in these appeals for the first time to suggest that the notice of the meetings of the Standing Committee was not served on all the 3 members of the committee we are satisfied that such a notice was in fact given and someone or the other of the 3 members chose to remain absent at the meetings of the Standing Committee. There is, therefore, no warrant for the hypothesis that had the third member attended the meetings he would have dissented from the decision of the 2 other members so as to necessitate a reference to the Vice-Chancellor under Regulation 32.1.Apart from this consideration, we are unable to agree that anything contained in Regulation 32.1 can affect the power of the Syndicate to fix the quorum for the meetings of the Standing Committee. If the quorum consists of 2 members, any 2 out of the 3 members can perform the functions of the Standing Committee, though the committee may be composed of 3 members. When Regulation 32.1 speaks of the committee being unanimous, it refers to the unanimity of the members who for the time being are sitting as the committee and who, by forming the quorum can validly and lawfully discharge the functions of the committee and transact all business on behalf of the committee. If only 2 members out of the 3 who compose the Standing Committee have participated in the business of any particular meeting, the question to ask under Regulation 32.1 is whether there is unanimity amongst those two members. If they are unanimous their decision is final. If they differ, the matter has to be referred to the Vice-Chancellor. Thus, the fixation of quorum neither makes Regulation 32.1 a dead letter nor does it affect its application or utility. With respect , we are unable to appreciate the reasoning of the majority that "The manner in which Regulation 32.1 has been framed leaves no doubt that the consideration of the question of students misconduct and the use of unfair means in examination by the m has been placed at a high pedestal" and that therefore "there is no escape from the conclusion that the consideration of the case of a student against whom there are allegations of misconduct or of use unfair means in an examination, has to b e by all the members of the Standing Committee and not by some of them and that any decision of the Syndicate to the contrary would he violative of the letter and spirit of Regulation 32.1." The fixation of quorum by the Syndicate violates neither the letter nor the spirit of that Regulation.The majority Judges were therefore in error in holding that Regulation 32.1 "clearly negatives the fixation of a quorum and makes it incumbent that the decision must be taken by the full Committee" for the reason that "In a way, this regulation fixes the quorum at the number of members originally appointed". The learned Judges read far more into Regulation 32.1 than there is in it and we see no warrant for construing that regulation as fixing the quorum at the number of members originally appointed to the committee. Regulation 32.1 is aimed at conferring finally on decision of the committee if they are unanimous and at leaving the validity and propriety of a dissenting decision to the judgment of the Vice-Chancellor who can deal with the matter himself or refer it to the decision of the Syndicate. Regulation 3 2.1 does not even remotely attempt to fix the quorum. That is not its purpose, and it sounds strange that the Regulation, by a circuitous method, should fix the quorum at the full complement of members. Quorums are seldom so fixed and were it intended that the entire committee must decide every case, Regulation 31 could appropriately have said so.6. We share the deep concern voiced in the dissenting opinion of Sandhawalia J. that there was no justification for ignoring the stream of precedents which had consistently recognised the validity of decisions taken by 2 members of the Standing Committee. In Bharat Indu v. The Punjab University and another(1), Regulation 19 which was the precursor of and was identical with Regulation 32.1 came before the Punjab High Court. By a closely considered judgment, Dua J. who spoke for the Bench specifically rejected the argument accepted by the two learned Judges in the instant case. In Miss Manjinder Kaur v. The Punjab University (Civil Writ No. 3516 of 1972, decided on March 30, 1973), the same contention was repeated on behalf of the students and once again it was considered and rejected. It is quite true that judicial consistency is not the highest state of legal bliss. Law must grow, it cannot afford to be static and therefore Judges ought to employ an intelligent technique in the use of precedents. Precedents, as observed by Lord Macmillan, should be "stepping stones and not halting places".(2) But, Justice Cardozos caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings. The language of the Regulations called for no review of established precedents. Nor indeed is there any fear of unfairness if only 2 members decided the cases of students accused of adopting unfair practices in the examinations. In such cases it is so much better that the law is certain.
### Response:
1
### Explanation:
It is urged on behalf of the respondents that the possible dissent of the 3rd member, were he present, would have necessitated a reference to the Vice-Chancellor who might not agree with the majority opinion, which shows that no sanctity can attach to a decision rendered by less than the whole body of 3 members of the Standingshare the deep concern voiced in the dissenting opinion of Sandhawalia J. that there was no justification for ignoring the stream of precedents which had consistently recognised the validity of decisions taken by 2 members of the Standing Committee. In Bharat Indu v. The Punjab University and another(1), Regulation 19 which was the precursor of and was identical with Regulation 32.1 came before the Punjab High Court. By a closely considered judgment, Dua J. who spoke for the Bench specifically rejected the argument accepted by the two learned Judges in the instant case. In Miss Manjinder Kaur v. The Punjab University (Civil Writ No. 3516 of 1972, decided on March 30, 1973), the same contention was repeated on behalf of the students and once again it was considered and rejected. It is quite true that judicial consistency is not the highest state of legal bliss. Law must grow, it cannot afford to be static and therefore Judges ought to employ an intelligent technique in the use of precedents. Precedents, as observed by Lord Macmillan, should be "stepping stones and not halting places".(2) But, Justice Cardozos caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings. The language of the Regulations called for no review of established precedents. Nor indeed is there any fear of unfairness if only 2 members decided the cases of students accused of adopting unfair practices in the examinations. In such cases it is so much better that the law is certain.
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M.K. Prasad Vs. P. Arumugam | that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that "within such period" means "the period of the delay between the last day for filing the appeal and the date on which the appeal was actually filed" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words "within such period" is erroneous. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 Mad 269, "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant." Again in The State of West Bengal v. The Administrator, Howrah Municipality & Ors., 1972(1) SCC 366 and G. Ramegowda, Major & Ors. v. Special Land Acquisition Officer, Bangalore, 1988(2) SCC 142, this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation has been acted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy, 1999(2) RCR(Civil) 578 (SC) : 1998(7) SCC 123, this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing malafide or deliberate delay as a dilatory tactics, the court should normally condone the delay. However, in such a case the court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the court observed : "It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Some times delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower Court." 8. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex-parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex-parte decree as well. | 1[ds]6. In any case in which a decree is passedthe defendant can apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the court regarding the existence of circumstances which prevented him from approaching the court within the limitation prescribed by the statute.In the instant case, the appellant tried to explain the delay in filing the application for setting aside thedecree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside thedecree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting asidedecree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside thedecree as well. | 1 | 2,073 | 397 | ### 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:
that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that "within such period" means "the period of the delay between the last day for filing the appeal and the date on which the appeal was actually filed" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words "within such period" is erroneous. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 Mad 269, "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant." Again in The State of West Bengal v. The Administrator, Howrah Municipality & Ors., 1972(1) SCC 366 and G. Ramegowda, Major & Ors. v. Special Land Acquisition Officer, Bangalore, 1988(2) SCC 142, this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation has been acted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy, 1999(2) RCR(Civil) 578 (SC) : 1998(7) SCC 123, this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing malafide or deliberate delay as a dilatory tactics, the court should normally condone the delay. However, in such a case the court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the court observed : "It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Some times delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower Court." 8. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex-parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex-parte decree as well.
### Response:
1
### Explanation:
6. In any case in which a decree is passedthe defendant can apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the court regarding the existence of circumstances which prevented him from approaching the court within the limitation prescribed by the statute.In the instant case, the appellant tried to explain the delay in filing the application for setting aside thedecree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside thedecree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting asidedecree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside thedecree as well.
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Vallabh Das Vs. Dr. Madan Lal & Ors | brought on November 29, 1951 even before the costs of Vallabh Das (the appellant herein) in the previous suit had been paid. Vallabh Das resisted the suit on various grounds. He contended that Dr. Madan Lal was not adopted by Prem Sukh; even if he had been adopted, that adoption was not valid under the Benaras School of Hindu law by which the parties were governed as Madan Lal was a married man on July 12, 1943 and lastly the suit as brought is not maintainable as Dr. Madan Lal had not paid the costs due to him under the order in the previous suit before instituting the present suit. Both the trial Court as well as the High Court in appeal rejected every one of the contentions taken by Vallabh Das and decreed the suit as prayed for. Thereafter this appeal was brought after obtaining special leave from this Court. 2. The factum of the adoption has been upheld both by the Trial Court as well as by the High Court. There is evidence to support that finding. No convincing circumstances was brought to our notice requiring us to review the evidence over again. This Court ordinarily does not interfere with concurrent findings of fact. We see no justification to disturb the concurrent finding of fact arrived at by the Trial Court and the High Court. 3. As regards the validity of the adoption, the contention of Vallabh Das that the adoption was invalid rests on the plea that on July 12, 1943, Dr. Madan Lal was a married man. This plea has been negatived by the Trial Court as well as by the High Court. They have come to the conclusion that Dr. Madan Lal was not a married man on that date and that he was married subsequently. Here again there is no good ground for us to interfere with the finding of fact reached by those Courts. 4. The only contention that was seriously pressed before us on behalf of the appellant was that the suit under appeal is not maintainable as the condition precedent imposed by the Court in the earlier suit, namely the payment of defendants costs by the plaintiff before bringing a fresh suit on the same cause of action has not been complied with. We do not think that his contention is well founded. 5. Rule 1, Order 23, Code of Civil Procedure entitles Courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject-matter that was in litigation in the previous suit. The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit.Now coming to the case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possession of the suit properties from a trespasser on the basis of his title.In the first suit the cause of action was the division of the status between Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff is seeking possession of the suit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the present suit.It was merely an antecedent event which conferred certain rights on him. Merely identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits.As observed in Rukma Bai v. Mahadeo Narayan, ILR 42 Bom 155= (AIR 1917 Bom 10 (1)) the expression "subject-matter" in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed.In other words "subject-matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis, C. J., in Singa Reddi v. Subba Reddi, ILR 39 Mad 987 = (AIR 1918 Mad 512 (2)) (FB) that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit. | 0[ds]4. The only contention that was seriously pressed before us on behalf of the appellant was that the suit under appeal is not maintainable as the condition precedent imposed by the Court in the earlier suit, namely the payment of defendants costs by the plaintiff before bringing a fresh suit on the same cause of action has not been complied with.We do not think that his contention is well founded5. Rule 1, Order 23, Code of Civil Procedure entitles Courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of thesubject-matter ofthat suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the presentsuit.For deciding that question we have to seewhether the suit from which this appeal arises is in respect of the samesubject-matterthat was in litigation in the previoussuit.The expression" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that thesubject-matterof thesecond suit is the same as that in the previousw coming to the case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possessionof thesuit properties from a trespasser on the basis of his title.In the first suit the cause of action was the divisionof thestatus between Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff is seeking possessionof thesuit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the presentt was merely an antecedent event which conferred certain rights on him. Merely identity of someof theissues in the two suits do not bring about an identityof thesubject-matterin the two suits.As observed in Rukma Bai v. Mahadeo Narayan, ILR 42 Bom 155= (AIR 1917 Bom 10 (1)) the expression" in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed.In other words" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis, C. J., in Singa Reddi v. Subba Reddi, ILR 39 Mad 987 = (AIR 1918 Mad 512 (2)) (FB) that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respectof thesame subject matter as the first | 0 | 1,331 | 696 | ### 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:
brought on November 29, 1951 even before the costs of Vallabh Das (the appellant herein) in the previous suit had been paid. Vallabh Das resisted the suit on various grounds. He contended that Dr. Madan Lal was not adopted by Prem Sukh; even if he had been adopted, that adoption was not valid under the Benaras School of Hindu law by which the parties were governed as Madan Lal was a married man on July 12, 1943 and lastly the suit as brought is not maintainable as Dr. Madan Lal had not paid the costs due to him under the order in the previous suit before instituting the present suit. Both the trial Court as well as the High Court in appeal rejected every one of the contentions taken by Vallabh Das and decreed the suit as prayed for. Thereafter this appeal was brought after obtaining special leave from this Court. 2. The factum of the adoption has been upheld both by the Trial Court as well as by the High Court. There is evidence to support that finding. No convincing circumstances was brought to our notice requiring us to review the evidence over again. This Court ordinarily does not interfere with concurrent findings of fact. We see no justification to disturb the concurrent finding of fact arrived at by the Trial Court and the High Court. 3. As regards the validity of the adoption, the contention of Vallabh Das that the adoption was invalid rests on the plea that on July 12, 1943, Dr. Madan Lal was a married man. This plea has been negatived by the Trial Court as well as by the High Court. They have come to the conclusion that Dr. Madan Lal was not a married man on that date and that he was married subsequently. Here again there is no good ground for us to interfere with the finding of fact reached by those Courts. 4. The only contention that was seriously pressed before us on behalf of the appellant was that the suit under appeal is not maintainable as the condition precedent imposed by the Court in the earlier suit, namely the payment of defendants costs by the plaintiff before bringing a fresh suit on the same cause of action has not been complied with. We do not think that his contention is well founded. 5. Rule 1, Order 23, Code of Civil Procedure entitles Courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject-matter that was in litigation in the previous suit. The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit.Now coming to the case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possession of the suit properties from a trespasser on the basis of his title.In the first suit the cause of action was the division of the status between Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff is seeking possession of the suit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the present suit.It was merely an antecedent event which conferred certain rights on him. Merely identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits.As observed in Rukma Bai v. Mahadeo Narayan, ILR 42 Bom 155= (AIR 1917 Bom 10 (1)) the expression "subject-matter" in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed.In other words "subject-matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis, C. J., in Singa Reddi v. Subba Reddi, ILR 39 Mad 987 = (AIR 1918 Mad 512 (2)) (FB) that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit.
### Response:
0
### Explanation:
4. The only contention that was seriously pressed before us on behalf of the appellant was that the suit under appeal is not maintainable as the condition precedent imposed by the Court in the earlier suit, namely the payment of defendants costs by the plaintiff before bringing a fresh suit on the same cause of action has not been complied with.We do not think that his contention is well founded5. Rule 1, Order 23, Code of Civil Procedure entitles Courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of thesubject-matter ofthat suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the presentsuit.For deciding that question we have to seewhether the suit from which this appeal arises is in respect of the samesubject-matterthat was in litigation in the previoussuit.The expression" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that thesubject-matterof thesecond suit is the same as that in the previousw coming to the case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possessionof thesuit properties from a trespasser on the basis of his title.In the first suit the cause of action was the divisionof thestatus between Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff is seeking possessionof thesuit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the presentt was merely an antecedent event which conferred certain rights on him. Merely identity of someof theissues in the two suits do not bring about an identityof thesubject-matterin the two suits.As observed in Rukma Bai v. Mahadeo Narayan, ILR 42 Bom 155= (AIR 1917 Bom 10 (1)) the expression" in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed.In other words" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis, C. J., in Singa Reddi v. Subba Reddi, ILR 39 Mad 987 = (AIR 1918 Mad 512 (2)) (FB) that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respectof thesame subject matter as the first
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Devi Cine Projector Manufacturing Company Vs. Commissioner of Income Tax (And Others Appeals) | VENKATACHALIAH J. 1. These four petitions for grant of special leave arise out of the orders of the High Court of Judicature at Madras in the corresponding four tax case petitions, rejecting the assessee applications under section 256(2) of the Income-tax Act, 1961, and the reference of question of law whether the disallowance under section 40(b) of the Income-tax Act, 1961 ("the Act") of the interest paid by a firm to its partner should be the gross amount of such interest or should be confined to the net amount after setting off the interest, in turn, paid by the partner to the firm on his borrowings from the firm In each of these cases, the Income-tax Appellate Tribunal had, in substance, held that what was disallowable was the entirety of the interest paid by the firm to the partner-without reference to any interest that may, in turn, have been paid by the partner to the firm. The Tribunal, in the appeals preferred by the Revenue before it, allowed the appeals and reversed the view to the contrary taken in favour of the assessees by the first appellate authority. The Tribunal also declined to state a case and refer a question of law under section 256(1) of the Act to the High Court ; whereupon the assessees moved the aforesaid tax case petitions before the High Court under section 256(2). The High Court rejected these applications on the view that there was no referable question of law arising out of the appellate orders of the Tribunal, having regard to the earlier pronouncement of the Madras High Court in CIT v. 0. M. S. S. Sankaralinga Nadar and Co. [1984] 147 ITR 332, on which the Tribunal had relied. 2. The correctness of the decision of the Madras High Court in the said Sankaralinga Nadars case [1984] 147 ITR 332 has come to be examined by this court in Keshavji Ravji and Co. v. CIT (Special Leave Petition No. 14291 of 1985 and connected cases) and by the judgment dated February 5, 1990, [1990] 183 ITR 1 , this court has taken a view in the light of which Sankaralinga Nadar and Co.s case [1984] 147 ITR 332 (Mad) cannot be held to have laid down the law correctly in all respects. The pronouncement of this court in the said Keshavji Ravji and Co.s case [1990] 183 ITR 1 covers the point raised in these special leave petitionsHowever, as the present special leave petitions arise out of the orders of the High Court rejecting the tax case petitions under section 256(2) of the Act, we should, in the normal course, grant special leave, register the corresponding civil appeals and, after setting aside the orders of the High Court, remit the corresponding tax case petitions to the High Court with direction to allow the petitions and to direct the Income-tax Appellate Tribunal to state a case and refer a question of law for the opinion of the High Court and thereafter to dispose of the references in the light of the pronouncement of this court in the said Keshavji Ravji and Co.s case [1990] 183 ITR 1. This procedure would, indeed, be an idle, time-consuming and wholly avoidable formality in the circumstances of the present cases. As the position is now settled, we are of the opinion that the interests of justice would be served by treating the present special leave petition as directed against and arising from the main appellate orders of the Income-tax Appellate Tribunal, Madras, and after granting special leave, set aside that part of the appellate orders as pertain to the extent of disallowance of the interest under section 40(b) of the Act and direct the Tribunal to dispose of the appeals on the point afresh in the light of the aforesaid pronouncement of this court. | 1[ds]However, as the present special leave petitions arise out of the orders of the High Court rejecting the tax case petitions under section 256(2) of the Act, we should, in the normal course, grant special leave, register the corresponding civil appeals and, after setting aside the orders of the High Court, remit the corresponding tax case petitions to the High Court with direction to allow the petitions and to direct theAppellate Tribunal to state a case and refer a question of law for the opinion of the High Court and thereafter to dispose of the references in the light of the pronouncement of this court in the said Keshavji Ravji and Co.s case [1990] 183 ITR 1. This procedure would, indeed, be an idle,and wholly avoidable formality in the circumstances of the present cases. As the position is now settled, we are of the opinion that the interests of justice would be served by treating the present special leave petition as directed against and arising from the main appellate orders of theAppellate Tribunal, Madras, and after granting special leave, set aside that part of the appellate orders as pertain to the extent of disallowance of the interest under section 40(b) of the Act and direct the Tribunal to dispose of the appeals on the point afresh in the light of the aforesaid pronouncement of this court. | 1 | 720 | 256 | ### 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:
VENKATACHALIAH J. 1. These four petitions for grant of special leave arise out of the orders of the High Court of Judicature at Madras in the corresponding four tax case petitions, rejecting the assessee applications under section 256(2) of the Income-tax Act, 1961, and the reference of question of law whether the disallowance under section 40(b) of the Income-tax Act, 1961 ("the Act") of the interest paid by a firm to its partner should be the gross amount of such interest or should be confined to the net amount after setting off the interest, in turn, paid by the partner to the firm on his borrowings from the firm In each of these cases, the Income-tax Appellate Tribunal had, in substance, held that what was disallowable was the entirety of the interest paid by the firm to the partner-without reference to any interest that may, in turn, have been paid by the partner to the firm. The Tribunal, in the appeals preferred by the Revenue before it, allowed the appeals and reversed the view to the contrary taken in favour of the assessees by the first appellate authority. The Tribunal also declined to state a case and refer a question of law under section 256(1) of the Act to the High Court ; whereupon the assessees moved the aforesaid tax case petitions before the High Court under section 256(2). The High Court rejected these applications on the view that there was no referable question of law arising out of the appellate orders of the Tribunal, having regard to the earlier pronouncement of the Madras High Court in CIT v. 0. M. S. S. Sankaralinga Nadar and Co. [1984] 147 ITR 332, on which the Tribunal had relied. 2. The correctness of the decision of the Madras High Court in the said Sankaralinga Nadars case [1984] 147 ITR 332 has come to be examined by this court in Keshavji Ravji and Co. v. CIT (Special Leave Petition No. 14291 of 1985 and connected cases) and by the judgment dated February 5, 1990, [1990] 183 ITR 1 , this court has taken a view in the light of which Sankaralinga Nadar and Co.s case [1984] 147 ITR 332 (Mad) cannot be held to have laid down the law correctly in all respects. The pronouncement of this court in the said Keshavji Ravji and Co.s case [1990] 183 ITR 1 covers the point raised in these special leave petitionsHowever, as the present special leave petitions arise out of the orders of the High Court rejecting the tax case petitions under section 256(2) of the Act, we should, in the normal course, grant special leave, register the corresponding civil appeals and, after setting aside the orders of the High Court, remit the corresponding tax case petitions to the High Court with direction to allow the petitions and to direct the Income-tax Appellate Tribunal to state a case and refer a question of law for the opinion of the High Court and thereafter to dispose of the references in the light of the pronouncement of this court in the said Keshavji Ravji and Co.s case [1990] 183 ITR 1. This procedure would, indeed, be an idle, time-consuming and wholly avoidable formality in the circumstances of the present cases. As the position is now settled, we are of the opinion that the interests of justice would be served by treating the present special leave petition as directed against and arising from the main appellate orders of the Income-tax Appellate Tribunal, Madras, and after granting special leave, set aside that part of the appellate orders as pertain to the extent of disallowance of the interest under section 40(b) of the Act and direct the Tribunal to dispose of the appeals on the point afresh in the light of the aforesaid pronouncement of this court.
### Response:
1
### Explanation:
However, as the present special leave petitions arise out of the orders of the High Court rejecting the tax case petitions under section 256(2) of the Act, we should, in the normal course, grant special leave, register the corresponding civil appeals and, after setting aside the orders of the High Court, remit the corresponding tax case petitions to the High Court with direction to allow the petitions and to direct theAppellate Tribunal to state a case and refer a question of law for the opinion of the High Court and thereafter to dispose of the references in the light of the pronouncement of this court in the said Keshavji Ravji and Co.s case [1990] 183 ITR 1. This procedure would, indeed, be an idle,and wholly avoidable formality in the circumstances of the present cases. As the position is now settled, we are of the opinion that the interests of justice would be served by treating the present special leave petition as directed against and arising from the main appellate orders of theAppellate Tribunal, Madras, and after granting special leave, set aside that part of the appellate orders as pertain to the extent of disallowance of the interest under section 40(b) of the Act and direct the Tribunal to dispose of the appeals on the point afresh in the light of the aforesaid pronouncement of this court.
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Collector of Central Excise, Kanpur Vs. Krishna Carbon Paper Co | treatments such as coating, impregnating) stated in that context. In that context, it cannot be said that carbon paper cannot be coated paper as such. Shri Kapil submitted that if carbon paper was there then there was no purpose for introducing two sub-items by the Finance Act of 1982. The Finance Minister, however, observed in his speech (extract of para 123 at pages 38-39 of Part B dated 27th February. 1982 as follows: 123. I also propose to rationalise and restructure the tariff relating to paper and paper boards, the primary objective being to exempt small scale paper converters from payment of excise duty and to release them from excise control. In order to recoup the consequent loss in revenue. I propose to raise the basic excise duty on industrial varieties of paper and paper boards by a small margin of 2 1/2 per cent ad valorem. However, certain converted papers of high value-added categories are proposed to be subject to basic excise duty at 32 1/2 per cent ad valorem. Similarly, specified articles made of paper and paper board are proposed to be brought within the purview of the tariff item but effectively restricting the levy to printed cartons and printed boxes. 16. It appears that the Finance Minister was adding two items, one was 17(3) carbon and other copying papers and the second was 17(4) boxes, cartons, bags and other packing containers. He mentioned in his speech that in order to recoup the consequent loss in revenue, he proposed to raise the basic excise duty on industrial varieties of paper and paper boards by a small margin of 2 1/2 per cent ad valorem. Tariff Advice No. 5/76 contained the following statement : TARIFF ADVICE NO. 5/76- (BOARDS LETTER F. NO. 61/2/73-CX.2 dt. 12-2-76). Sub: Paper-Carbon Paper and Stencil Paper Whether excisable under Item No. 17 of. A doubt has been raised whether carbon/stencil paper, produced by conversion of duty paid base paper, should be treated as paper falling under tariff item 17(4) of Central Excise Tariff or as an item of stationery, outside the scope of item No. 17 of C.E. Tariff. 2. The matter was considered in the Central Excise Tariff Conference held at Cochin on the 13th to 15th November, 1975. It was reported that carbon paper/stencil paper is sold in the market mostly cut to size by retail stationers. The Indian Customs Tariff Guide has also treated carbon paper as an item of stationery and not as paper. The Conference was therefore, of the view that carbon paper/stencil paper, were commercially recognised only as articles of stationery. 3. The Board is accordingly advised that carbon paper and stencil paper should be treated as articles of stationery, and therefore outside the purview of item No. 17-C.Ex. Tariff. 4- Receipt of this letter may kindly be acknowledged. 17. These are relevant or proper materials to apply to construe the meaning of the Tariff Items. Moreover, in proper light these do not militate against the view that carbon paper in 1976, was included in the special type of paper, as defined at that time. 18. In the aforesaid view of the matter, we are of the opinion that as at the relevant time the definition of paper being paper board and all kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating and impregnating and in the light of the I.S. specifications as noted hereinbefore and there being no other reliable evidence as to how coated paper is understood in the market, except the opinion of the Indian Standard Institute in its specifications, in our opinion, the Tribunal was not right in the view it took. 19. The Tribunal in Kores (India) Ltd., Thane v. Collector of Central Excise. Thane 1987 (29) ELT 627 (supra) expressed the view that carbon would fall under item 17(2) of the Tariff Items relying on ISI specifications. There was authority of the Indian Standards Institutes publication Glossary of Terms used in Paper Trade and Industry IS 4661. In view of the facts as appeared in paragraph 14 of the Tribunals judgment in Kores (India) Ltd. Thane v. Collector of Central Excise. Thane (supra), where the basis of the classifications of ISI in its specifications is explained, we are of the opinion that the carbon paper fell under item 17(2) as it stood at the relevant period germane for this appeal, before 1982, and not in residuary item No. 68 of C.E.T. 20. Learned Solicitor General submitted that this amendment so far as item 17(3) was concerned was mere clarificatory and was introduced ex abundanti cautela. Our attention was drawn to the decision of this Court in Md. Qasim Larry v. Muhammad Samsuddin (1964) 7 SCR 419 : AIR 1964 SC 1699 , where the Court was concerned with the question whether the term wages as defined by Section 2(vi) of the Payment of Wages Act. 1936 including wages fixed in an industrial dispute between the employer and the employee. The question had to be answered in the light of the definition prescribed by Section 2(vi) before it was amended in 1958. The subsequent amendment expressly provided by Section 2(vi)(a) that any remuneration payable under any award or settlement between the parties or order of a Court, would be included in the main definition under Section 2(vi). In the view we have taken on the construction of the expression as it stood in the relevant time, it is not necessary to rest our decision on the question whether the amendment was clarificatory or not. 21. In the light of the evidence referred to by the Tribunal in Kores (India) Ltd., Thane v. Collector of Central Excise. Thane (1987 (29) ELT 627) (supra) and in the light of the definition of paper in C.E.T. Item 17(2) as it stood at the relevant time, it is sufficient to hold that it was covered by item 17(2) of C.E.T. and would not fall into the residuary entry. | 1[ds]Following its previous decision in the case of Sai Giridhara Supply Co. v. Collector of Central Excise, Bombay (1987) 28 ELT 438 (Tri), the Tribunal upheld the contention of the Respondent and held that for the period before the amendment of Central Excise Budget, in 1982, carbon paper fell under Tariff Item 68 and not under Tariff Item 17(2), as it then was. The Tribunal did not go into the question of the limitation, namely, whether the claim was barred in any event by the lapse of time in view of Section 11A of the Act. The Tribunal came to the finding that the carbon paper in question fell under Tariff Item 68 of the Central Excise Tariff.5. The Tribunal followed a previous decision in Sai Giridhara Supply Co. v. Collector of Central Excise Bombay, (1987 (28) ELT 438) (supra). There, the Tribunal had discussed the various aspects of the matter and felt itself bound by the decision of the Karnataka High Court to which reference will be made later. The Tribunal has referred to the observations of Buckley L.J. where the Lord Justice observed that once a precedent was held to be a binding one, then no deviation therefrom was permissible within the judicial polity except in the well accepted categories of cases enumerated in the judgment. Those contingencies, the Tribunal found, were not applicable to the facts of this case.6. It is well settled that in order to ascertain the correct meaning of a fiscal entry reference to a dictionary is apt to be a somewhat delusive guide, as it gives all the different shades of meaning.9. It is well settled, as mentioned before, that where no definition is provided in the statute itself, as in this case, for ascertaining the correct meaning of a fiscal entry reference to a dictionary is not always safe. The correct guide, it appears in such a case, is the context and the trade meaning. In this connection reference may be made to the observations of this Court in Commr. of Sales Tax, U.P. v. M/s. S.N. Brothers, Kanpur. AIR 1973 SC 78 at page 80, para 5.10. The trade meaning is one which is prevalent in that particular trade where that goods is known or traded. If special type of goods is subject matter of a fiscal entry then that entry must be understood in the context of that particular trade, bearing in mind that particular word. Where, however, there is no evidence either way then the definition given and the meaning following from particular statute at particular time would be the decisive test.It must be emphasised in view of the arguments advanced in this case that the meaning should be as understood in the particular trade. In this case, we are construing not paper as such but a particular brand of paper with a meaning attributed to it. Sub-item (2) of item 17 as was the position in 1976 paper referred to all kinds of paper including paper or paper boards which have been subjected to various treatments such as coating, impregnating. So, therefore, if all kinds of paper including coated paper is the goods, we have to find out the meaning attributed to those goods in the trade of those kinds of paper where transactions of those goods take place.12. It is a well settled principle of construction, as mentioned before, that where the word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the legislature.This principle is well settled by a long line of decisions of Canadian, American, Australian and Indian cases. Pollock J. pointed out in Grenfell v. I.R.C., (1876) 1 Ex D 242 at P. 248, that if a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words Popular sense that which people conversant with the subject matter with which the statute is dealing would attribute to it. The ordinary words in every day use are, therefore, to be construed according to their popular sense. The same view was reiterated by Story, J. in 200 Chests of Tea, (1824) 9 Wheaton US 435 at 438, where he observed that the legislature does not suppose our merchants to be naturalists, or geologists, or botanists. See the observations of Bhagwati, J. as the learned Chief Justice then was, in Porritts and Spencer (Asia) Ltd. v. State of Haryana (1979) 1 SCC 82 : AIR 1979 SC 300 . But there is a word of caution that has to be borne in mind in this connection, the words must be understood in popular sense, that is to say, these must be confined to the words used in a particular Statute and then if in respect of that particular items, an artificial definition is given in the sense that a special meaning is attached to particular words in the Statute then the ordinary sense or dictionary meaning would not be applicable but the meaning of that type of goods dealt with by that type of goods in that type of market, should be searched. In the instant case, we have all kinds of papers including papers subjected to coating, impregnating etc.. If there is a market meaning or trade meaning of that kind of a paper that should be adhered to. In this case, there is no direct evidence how these peculiar goods are dealt with in the particular market dealing with those goods. But there is evidence how these are to be understood in the light of the specifications of the Indian Standard Institute which we have mentioned before. It is instructive to refer in this connection a passage of the Tribunals decision in Kores (India) Ltd., Thane v. Collector of Central Excise Thane (1987) 29 ELT 627, where the Tribunal observed that on the point whether carbon paper is understood as a coated paper in trade, there is authority of the Indian Standards Institutes publication Glossary of Terms used in Paper Trade and: 4661. Therefore, understood in the accepted notion of construing entries of fiscal Statute not from a technical or scientific point of view but from the point of view of the people in the trade dealing with that particular type of goods and having regard to the evidence of the Indian Standard Institute and in the absence of any other evidence to the contrary, the Tribunal was justified in holding that on the basis of the definition of paper as it was in the year 1976 carbon paper would come within item 17(2) of the Tariff Items.13. Learned counsel for the Respondent placed reliance on the observations of this Court in State of U.P. v. Kores (India) Ltd. (1977) 1 SCR 837 : AIR 1977 SC 132 , where this Court was concerned with a notification under Section 3A of the U.P. Sales Tax Act, 1948.The question fell for consideration before this Court in that case was whether carbon paper was taxable as paper and further whether ribbon was accessory or part of typewriter. This Court reiterated that a word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs. The word has to be understood according to the well established canon of construction in the sense in which persons dealing with and using the article understand it. For this principle this Court relied on the observations of Lord Tenterden in Attorney-General v. Winstanley (1831) 6 ER 740 and the observations of Pollock, J. in Grenfell v. Commissioners of Inland Revenue, (1876) 1 Ex D 242 at P. 248. Pollock, J. was construing the Stamp Act, where he correctly emphasised that the words should be construed in popular sense meaning thereby the sense in which people conversant with the subject matter with which the Statute is dealing, would attribute to it. That is the correct test. This Court observed further at page 839 of the report that in popular parlance, the word; paper is understood as meaning a substance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or covering the walls. Carbon paper is not commonly understood as paper. This Court thus held that paper simpliciter cannot include carbon paper because that would not be in consonance with the popular understanding of the expression paper. But where paper of a special type defined in the particular statute as one including paper which have been subjected to various treatments such as coating, impregnating, how that paper be understood, there must be evidence of that understanding. In the absence of that evidence, the natural meaning following from the expression used in the statute should be adhered to. In that light, it appears to us that in view of the facts of this case and in the principles of law as prevailing in 1976 papers of all kinds including paper with coating and impregnating and the views of the Indian Standard Institute, would include carbon papers.We are concerned here not with paper simpliciter or how it is understood in common parlance but paper with a particular definition at the relevant time, namely, all kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating, impregnating) stated in that context. In that context, it cannot be said that carbon paper cannot be coated paper as such.16. It appears that the Finance Minister was adding two items, one was 17(3) carbon and other copying papers and the second was 17(4) boxes, cartons, bags and other packing containers. He mentioned in his speech that in order to recoup the consequent loss in revenue, he proposed to raise the basic excise duty on industrial varieties of paper and paper boards by a small margin of 2 1/2 per cent ad valorem.17. These are relevant or proper materials to apply to construe the meaning of the Tariff Items. Moreover, in proper light these do not militate against the view that carbon paper in 1976, was included in the special type of paper, as defined at that time.18. In the aforesaid view of the matter, we are of the opinion that as at the relevant time the definition of paper being paper board and all kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating and impregnating and in the light of the I.S. specifications as noted hereinbefore and there being no other reliable evidence as to how coated paper is understood in the market, except the opinion of the Indian Standard Institute in its specifications, in our opinion, the Tribunal was not right in the view it took.19. The Tribunal in Kores (India) Ltd., Thane v. Collector of Central Excise. Thane 1987 (29) ELT 627 (supra) expressed the view that carbon would fall under item 17(2) of the Tariff Items relying on ISI specifications. There was authority of the Indian Standards Institutes publication Glossary of Terms used in Paper Trade and IndustryIS 4661. In view of the facts as appeared in paragraph 14 of the Tribunals judgment in Kores (India) Ltd. Thane v. Collector of Central Excise. Thane (supra), where the basis of the classifications of ISI in its specifications is explained, we are of the opinion that the carbon paper fell under item 17(2) as it stood at the relevant period germane for this appeal, before 1982, and not in residuary item No. 68 of C.E.T.In the view we have taken on the construction of the expression as it stood in the relevant time, it is not necessary to rest our decision on the question whether the amendment was clarificatory or not.21. In the light of the evidence referred to by the Tribunal in Kores (India) Ltd., Thane v. Collector of Central Excise. Thane (1987 (29) ELT 627) (supra) and in the light of the definition of paper in C.E.T. Item 17(2) as it stood at the relevant time, it is sufficient to hold that it was covered by item 17(2) of C.E.T. and would not fall into the residuary entry. | 1 | 5,797 | 2,341 | ### Instruction:
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treatments such as coating, impregnating) stated in that context. In that context, it cannot be said that carbon paper cannot be coated paper as such. Shri Kapil submitted that if carbon paper was there then there was no purpose for introducing two sub-items by the Finance Act of 1982. The Finance Minister, however, observed in his speech (extract of para 123 at pages 38-39 of Part B dated 27th February. 1982 as follows: 123. I also propose to rationalise and restructure the tariff relating to paper and paper boards, the primary objective being to exempt small scale paper converters from payment of excise duty and to release them from excise control. In order to recoup the consequent loss in revenue. I propose to raise the basic excise duty on industrial varieties of paper and paper boards by a small margin of 2 1/2 per cent ad valorem. However, certain converted papers of high value-added categories are proposed to be subject to basic excise duty at 32 1/2 per cent ad valorem. Similarly, specified articles made of paper and paper board are proposed to be brought within the purview of the tariff item but effectively restricting the levy to printed cartons and printed boxes. 16. It appears that the Finance Minister was adding two items, one was 17(3) carbon and other copying papers and the second was 17(4) boxes, cartons, bags and other packing containers. He mentioned in his speech that in order to recoup the consequent loss in revenue, he proposed to raise the basic excise duty on industrial varieties of paper and paper boards by a small margin of 2 1/2 per cent ad valorem. Tariff Advice No. 5/76 contained the following statement : TARIFF ADVICE NO. 5/76- (BOARDS LETTER F. NO. 61/2/73-CX.2 dt. 12-2-76). Sub: Paper-Carbon Paper and Stencil Paper Whether excisable under Item No. 17 of. A doubt has been raised whether carbon/stencil paper, produced by conversion of duty paid base paper, should be treated as paper falling under tariff item 17(4) of Central Excise Tariff or as an item of stationery, outside the scope of item No. 17 of C.E. Tariff. 2. The matter was considered in the Central Excise Tariff Conference held at Cochin on the 13th to 15th November, 1975. It was reported that carbon paper/stencil paper is sold in the market mostly cut to size by retail stationers. The Indian Customs Tariff Guide has also treated carbon paper as an item of stationery and not as paper. The Conference was therefore, of the view that carbon paper/stencil paper, were commercially recognised only as articles of stationery. 3. The Board is accordingly advised that carbon paper and stencil paper should be treated as articles of stationery, and therefore outside the purview of item No. 17-C.Ex. Tariff. 4- Receipt of this letter may kindly be acknowledged. 17. These are relevant or proper materials to apply to construe the meaning of the Tariff Items. Moreover, in proper light these do not militate against the view that carbon paper in 1976, was included in the special type of paper, as defined at that time. 18. In the aforesaid view of the matter, we are of the opinion that as at the relevant time the definition of paper being paper board and all kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating and impregnating and in the light of the I.S. specifications as noted hereinbefore and there being no other reliable evidence as to how coated paper is understood in the market, except the opinion of the Indian Standard Institute in its specifications, in our opinion, the Tribunal was not right in the view it took. 19. The Tribunal in Kores (India) Ltd., Thane v. Collector of Central Excise. Thane 1987 (29) ELT 627 (supra) expressed the view that carbon would fall under item 17(2) of the Tariff Items relying on ISI specifications. There was authority of the Indian Standards Institutes publication Glossary of Terms used in Paper Trade and Industry IS 4661. In view of the facts as appeared in paragraph 14 of the Tribunals judgment in Kores (India) Ltd. Thane v. Collector of Central Excise. Thane (supra), where the basis of the classifications of ISI in its specifications is explained, we are of the opinion that the carbon paper fell under item 17(2) as it stood at the relevant period germane for this appeal, before 1982, and not in residuary item No. 68 of C.E.T. 20. Learned Solicitor General submitted that this amendment so far as item 17(3) was concerned was mere clarificatory and was introduced ex abundanti cautela. Our attention was drawn to the decision of this Court in Md. Qasim Larry v. Muhammad Samsuddin (1964) 7 SCR 419 : AIR 1964 SC 1699 , where the Court was concerned with the question whether the term wages as defined by Section 2(vi) of the Payment of Wages Act. 1936 including wages fixed in an industrial dispute between the employer and the employee. The question had to be answered in the light of the definition prescribed by Section 2(vi) before it was amended in 1958. The subsequent amendment expressly provided by Section 2(vi)(a) that any remuneration payable under any award or settlement between the parties or order of a Court, would be included in the main definition under Section 2(vi). In the view we have taken on the construction of the expression as it stood in the relevant time, it is not necessary to rest our decision on the question whether the amendment was clarificatory or not. 21. In the light of the evidence referred to by the Tribunal in Kores (India) Ltd., Thane v. Collector of Central Excise. Thane (1987 (29) ELT 627) (supra) and in the light of the definition of paper in C.E.T. Item 17(2) as it stood at the relevant time, it is sufficient to hold that it was covered by item 17(2) of C.E.T. and would not fall into the residuary entry.
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the point of view of the people in the trade dealing with that particular type of goods and having regard to the evidence of the Indian Standard Institute and in the absence of any other evidence to the contrary, the Tribunal was justified in holding that on the basis of the definition of paper as it was in the year 1976 carbon paper would come within item 17(2) of the Tariff Items.13. Learned counsel for the Respondent placed reliance on the observations of this Court in State of U.P. v. Kores (India) Ltd. (1977) 1 SCR 837 : AIR 1977 SC 132 , where this Court was concerned with a notification under Section 3A of the U.P. Sales Tax Act, 1948.The question fell for consideration before this Court in that case was whether carbon paper was taxable as paper and further whether ribbon was accessory or part of typewriter. This Court reiterated that a word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs. The word has to be understood according to the well established canon of construction in the sense in which persons dealing with and using the article understand it. For this principle this Court relied on the observations of Lord Tenterden in Attorney-General v. Winstanley (1831) 6 ER 740 and the observations of Pollock, J. in Grenfell v. Commissioners of Inland Revenue, (1876) 1 Ex D 242 at P. 248. Pollock, J. was construing the Stamp Act, where he correctly emphasised that the words should be construed in popular sense meaning thereby the sense in which people conversant with the subject matter with which the Statute is dealing, would attribute to it. That is the correct test. This Court observed further at page 839 of the report that in popular parlance, the word; paper is understood as meaning a substance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or covering the walls. Carbon paper is not commonly understood as paper. This Court thus held that paper simpliciter cannot include carbon paper because that would not be in consonance with the popular understanding of the expression paper. But where paper of a special type defined in the particular statute as one including paper which have been subjected to various treatments such as coating, impregnating, how that paper be understood, there must be evidence of that understanding. In the absence of that evidence, the natural meaning following from the expression used in the statute should be adhered to. In that light, it appears to us that in view of the facts of this case and in the principles of law as prevailing in 1976 papers of all kinds including paper with coating and impregnating and the views of the Indian Standard Institute, would include carbon papers.We are concerned here not with paper simpliciter or how it is understood in common parlance but paper with a particular definition at the relevant time, namely, all kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating, impregnating) stated in that context. In that context, it cannot be said that carbon paper cannot be coated paper as such.16. It appears that the Finance Minister was adding two items, one was 17(3) carbon and other copying papers and the second was 17(4) boxes, cartons, bags and other packing containers. He mentioned in his speech that in order to recoup the consequent loss in revenue, he proposed to raise the basic excise duty on industrial varieties of paper and paper boards by a small margin of 2 1/2 per cent ad valorem.17. These are relevant or proper materials to apply to construe the meaning of the Tariff Items. Moreover, in proper light these do not militate against the view that carbon paper in 1976, was included in the special type of paper, as defined at that time.18. In the aforesaid view of the matter, we are of the opinion that as at the relevant time the definition of paper being paper board and all kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating and impregnating and in the light of the I.S. specifications as noted hereinbefore and there being no other reliable evidence as to how coated paper is understood in the market, except the opinion of the Indian Standard Institute in its specifications, in our opinion, the Tribunal was not right in the view it took.19. The Tribunal in Kores (India) Ltd., Thane v. Collector of Central Excise. Thane 1987 (29) ELT 627 (supra) expressed the view that carbon would fall under item 17(2) of the Tariff Items relying on ISI specifications. There was authority of the Indian Standards Institutes publication Glossary of Terms used in Paper Trade and IndustryIS 4661. In view of the facts as appeared in paragraph 14 of the Tribunals judgment in Kores (India) Ltd. Thane v. Collector of Central Excise. Thane (supra), where the basis of the classifications of ISI in its specifications is explained, we are of the opinion that the carbon paper fell under item 17(2) as it stood at the relevant period germane for this appeal, before 1982, and not in residuary item No. 68 of C.E.T.In the view we have taken on the construction of the expression as it stood in the relevant time, it is not necessary to rest our decision on the question whether the amendment was clarificatory or not.21. In the light of the evidence referred to by the Tribunal in Kores (India) Ltd., Thane v. Collector of Central Excise. Thane (1987 (29) ELT 627) (supra) and in the light of the definition of paper in C.E.T. Item 17(2) as it stood at the relevant time, it is sufficient to hold that it was covered by item 17(2) of C.E.T. and would not fall into the residuary entry.
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The State of Maharashtra Vs. The Walchandnagar Industries Limited | and solatium as permissible under Section 23(2) of the Act on the ground that the said benefit is available only on the compensation for the land and it cannot be granted for severance and injurious affection in respect of the unacquired land.As noted earlier, the notification under Section 4 of the Act was published on 26/10/1972 and the declaration under Section 6 of the Act was published on 1/8/1974. The first award was passed by the Land Acquisition Officer on 13/3/1976 but except granting some amount towards reimbursement of labour charges, the Land Acquisition Officer could not grant any compensation either for the area of the trolley line submerged in the backwater or trolley line area not acquired. It was only on 9/12/1981 the SLAO passed the second award and granted compensation in respect of the land covering about 6 to 7 kms. Of the trolley line and submerged in the backwater of Ujani Dam. The claim for severance and injurious affection was rejected. The said award proceeds on the basis that the company lost its possession over the land in March, 1976. As per the scheme of Section 23(1A) of the Act, it is clear that in theinstant case the benefit of additional component is not available to the company. 26. In the impugned award the Reference Court has denied the benefit of enhanced solatium under Section 23(2) and interest under Sections 28 and 34 of the Act. It has been stated by the Reference Court that the amount of solatium can be granted only on the compensation for the land and it cannot be so granted on the compensation on account of severance and injurious affection. This reasoning is not in keeping with the language of Section 23(1) of the Act and as is well settled the word "compensation for land" includes the compensation as available under Clauses thirdly and fourthly therein i.e. for severance as well as for injurious affection. In the instant case, the award concerning the claim of the company has been passed on 9/12/1981 by the Land Acquisition Officer and the claim under Section 18 of the Act for enhancement was submitted before the Land Acquisition Officer on 12/1/1982. The impugned award has been passed by the Reference Court on 14/3/1990. By following the law laid down in the case of Union of India vs. Raghubir Singh [(1989) 2 SCC 754] and subsequently followed in the case of Communidade of Morombi-O-Pequeno vs. State of Goa [(2004) 12 SCC 430] and Panna Lal Ghosh and ors. vs. Land Acquisition Collector and ors. [AIR 2004 SC 1179], the claimant-company is entitled for solatium at the enhanced rate of 30% on the compensation amount payable to it in respect of the amount determined for severance, injurious affection as well as the compensation awarded in Part-II of the award in respect of the trolley line running through the 7 kms. length and submerged in the backwater. The Reference Court has awarded solatium on the second part only 15% and the larned AGP fairly conceded that in view of the settled position in law, the company must receive the amount of solatium at 30% on the compensation awarded in Part-I as well as In Part II of the award passed by the Reference Court. To this extent the appeal filed by the company succeeds partly.Coming to the issue of interest payable under Sections 28 and 34 of the Act, the law laid down in this regard and more particularly in the case of Shree Vijay Cotton and Oil Mills Ltd. vs. State of Gujarat [(1991) 1 SCC 262] and followed subsequently in the case of Patel Joitaram Kalidas and ors. vs. Spl. Land Acquisition Officer and anr. and anr. [(2007) 2 SCC 341] , the company is entitled for said benefits on the amount of compensation as well as solatium. The interest under Sections 28 and 34 of the Act will be payable till the date the State Government has deposited the enhanced amount of compensation in the District Court, Pune. The Supreme Court in the case of Shri Vijay Cotton and Oil Mills Ltd. stated, inter alia, thus,".... There is inherent evidence in the wording of Sections 28 and 34 to show that the framers of the Act intended to assure the payment of interest to the person whose land was acquired and it was not the intention to subject the said payment to procedural hazards. Section 34 lays down that the Collector shall pay the amount awarded with interest at 6 per cent per annum... The legislative mandate is clear. It is a directive to the Collector to pay the interest in a given circumstance. Section 34 nowhere says that the interest amount is to be included in the award-decree as prepared under Section 23(1) read with Section 26 of the Act. Similarly Section 28 provides the award of the court may direct that the Collector shall pay interest. Here also the award under Section 23(1) read with Section 26 has been kept distinct from the payment of interest under the section. The interest to be paid under Section 34 and also under Section 28 is of different character than the compensation amount under Section 23(1) of the Act. Whereas the interest, if payable under the Act, can be claimed at any stage of the proceedings under the Act, the amount of compensation under Section 23(1) which is an award-decree under Section 26, is subject to the rules of procedure and limitation. The rules of procedure are handmaiden of justice. The procedural hassle cannot come in the way of substantive rights of citizens under the Act..."In the instant case, admittedly as on 30/4/1982 the application under Section 18 was pending before the Reference Court and the award has been passed on 14/3/1990, the claimant-company will be entitled for interest at the enhanced rate as per the Amendment of 1984 in the Act. This is one more area in which the appeal filed by the company succeeds partly. | 1[ds]As per the company the costs of transportation of goods by the trolley line was 20 paise per tone per km., whereas by the road transport (by trucks) the transportation cost came to 80 paise per tone per km. and thus resulting into an increase of 60 paise per tone per km. It further claimed that the trolley line was transporting about 35000 MT of goods per year and the same would increase year by year in future. The Company claimed that the increase in transportation cost would come to Rs.8,07,718/, we agree that the companys case for severance and injurious affection was not required to be considered if the claim was considered by the Reference Court only for the additional cost of transportation, because the entire stretch of 30 Kms., including the land remained with the Company and so was the case with the buildings and structures along with the said stretch of the trolley line. Even the locomotives, trolleys, wagons, rails, girders and so on and so forth could have been sold by the Company and it could not be permissible to claim compensation on the ground of non use of trolley line if the award was limited only to find out the compensation payable for the additional transportation cost. Be that as it may, we will proceed to consider the challenge to the award by both the parties on merits and as per the compensation claimed and granted under different heads, in the impugned award.So far as the compensation in the second part of the award is concerned, the Land Acquisition Officer had fixed the market value of the land at different rates for different kind of lands i.e. Jirayat superiorper hectare, Jirayat inferiorper hectare and Pot Kharaba landAs regards the embankment for the acquired portion of village Kumbhargaon, there was no dispute that the quantity was 13502 cubic mtrs. The Reference Court accepted the valuation of Shri Talim (PW 15) of the total quantity of embankment at Rs.70,000/but it did not agree with the depreciation rate of 9.1% fixed by the said witness. On the other hand, DW 1 had calculated the depreciation at the rate of 44%. The Reference Court rejected both and fixed the depreciation at 25% from the estimated cost of the claim i.e. Rs.70,000/and thus fixed the net value for compensation at Rs.52,661.25 paise. Similarly, for the CD works the value estimated by PW 15 was Rs.75000/and he had allowed depreciation at 9.1%. The witness of the State i.e. DW 1 Shri Gham had estimated the CD work cost at Rs.65,744/and allowed depreciation at 33.85%. The Reference Court accepted the estimated cost at Rs.75000/and fixed the depreciation rate at 25% and calculated the net compensation payable at Rs.We are satisfied that no interference is called for in the second part of the award in respect of the trolley line area submerged in the backwater and running across about 7 kms. The Reference Court rightly rejected the additional payment under Section 23(1A) as the award was passed on 9/12/1981 and the possession of the land was lost in the year 1976. However, the Reference Court awarded the increased solatium under Section 23 (2) of the Act but denied the benefit under Sections 28 and 34 of the Act. We shall deal with this issue of benefits under Sections 28 and 34 of the Act while dealing with the first part of the award.Thus, as has been pointed out by the learned AGP, the total cost for laying of this alternative trolley line (11 km) could have been Rs.25 lakhs plus (3 lakhs x 11) i.e. Rs.25 lakhs + 33 lakhs. If the alternative trolley line was 18 km. in length instead of 11 km., the cost for laying of the said 18 km. distance of the trolley line would be Rs.25 lakhs + 54 lakhs, thus making a total of Rs.79 lakhs. The witness further admitted that thedid not think it profitable to invest so much for the alternative line and he claimed that the letter at Exh.105 dated 17/8/1973 was sent to the Government under hisregards to the evidence of thewe have no doubt that the company by its own choice dropped a viable proposal of laying down the alternate trolley line of about 18 km. In place of 6 km. trolley line running through the land submerged in the backwater and so as to make the entire trolley line operational and the company allowed 30 km. trolley line to become redundant by its own actions. It tried to shift the blame on the State Government under the pretext that there was no response to invoke the urgency clause so as to acquire the land. This was only an allegation which did not find any support and theof the companys witness clearly proved that it was a blatant lie before the court. Providing the alternate line of 18 km. in place of 6 km. Trolley line could have restored the transportation of the companys goods by the trolley line rather than resorting to the road transportation. The Reference Court ought to have considered this deliberate inaction on the part of therather than entertaining an application for the claim of severance and injuriousthe company claiming compensation at the rate of Rs.8250/per hectare for 60 H. and 38 R., Shri Talim himself admitted that the prevailing rate at the relevant time was Rs.6250/per hectare, but the land remained with the company and in any case it was not the land which was submerged in the backwater. Shri DhongadeDW 4 admitted that it being a narrow strip of land running across 30 km. distance, its agricultural use was not feasible. He also admitted that for digging and removal of the compact soil and to fill in the land with loose soil, to make it suitable for agricultural, an amount of Rs.2000/er hectare would be required to be spent. The Reference Court has accepted this opinion of the State Governments expert but without recording a finding, whether the land could be used for agricultural or for any other purpose, when the said expert witness had stated that its agricultural use would not be feasible. However, if the compact soil was removed and loose soil was filled in, there would be a possibility of the company using the land for horticulture like plantation of mango trees or guava trees or even tamarind trees and, therefore, the decision of the Reference Court to grant compensation at the rate of Rs.2500/per hectare should be maintained. The compensation amount would come to 60.38 x 2500 i.e. Rs.1,50,950/for restoration of the land to use. The demand made by the Company for higher compensation for the land has been rightly turned down by the Reference Court and we are not impressed by the companys case before us for enhancement of the compensation for the land, more so when the land remained with the company.16. The Reference Court has considered the claim of the Company for embankment and CD works and the same has been allowed partly. As per the Company the embankment and CD works covering 28 to 30 kms. trolley line had become useless and, therefore, the company was injuriously affected as the embankment as well as CD works remained of no use to the company. The company, therefore, asked for Rs.23,96,250/for embankment and Rs.5,07,128/for CD works. This was opposed by the learned Government Pleader on the ground that the embankment or the CD works were not a property generating income and they were justfar as CD works is concerned, DW 2Mahajan admitted that there were in all 83 CD works and the total cost worked out at Rs.Mr. Mahajan stated that the depreciated value would come to Rs.No reason has been given by the Reference Court in rejecting the valuation of Rs.If for the embankment the valuation made by the State Governments expert witness was accepted, there is no reason in discarding the testimony of the said witness in respect of the valuation of the CD works and this was done by theformula and not on the basis of Y.P. formula. It would be, therefore, appropriate that 25% depreciation amount is reduced from Rs.1,63,512/for grating compensation for CD works and if so done, the amount would come to Rs.We accordingly modify the impugned award to that extent in respect of the compensation granted for CD works i.e. Rs.1,22,634/So far as the compensation granted for wells and structures and buildings is concerned, the amount awarded by the Reference Court is based on the evidence of DW 2Mahajan and no interference is called for in the said amount. The Reference Court has rightly turned down the claim for compensation in respect of the trees. The company had claimedbut there was noour opinion there is no justification to grant any token amount by way of compensation, more so when the company did not place on record any evidence to suggest that either the employees, on absorption, were required to be retrained for which the company incurred an additional cost or by way of redeployment of these 52 employees formerly engaged on the trolley line, the company was required to spend an additional amount of Rs.10,000/over and above their salary and other benefits as were payable to them in normal course. We, therefore, set aside the compensation of Rs. 10,000/granted by the Reference Court to thein lieu of retrenchment compensation or as a token amount.As per theit was entitled for Rs.43,048/towards the compensation for telephone lines and Rs.2,28,510/towards the buildings and wells. In support of the claim for telephone lines, the company had examined Shri Ramchandra Sawant (PW 11) at Exh.81. He was working as JuniorOfficer under the Central Government. In hishe admitted that when he was examined before the Reference Court on 30/9/1987 he did not have the rates prevailing for the yearHe also admitted that the rates are revised intermittently and during his service of 12 years, the rates were revised on 7 to 8 occasions. He also admitted that the estimate given by him for the yearwas on the basis of the rates prevailing in the year 1983. He also admitted that the life of the telephone line is about 20 years and the telephone line was installed for the first time in 1946. Thus in 1976 it had completed 30 years and in terms of value it had become obsolete. The Reference Court rightly turned down the demand for compensation for telephone lines.So far as the compensation for buildings is concerned, there was no dispute that there were six buildings along the trolley line. These buildings were constructed for residential purpose of the staff members who were working on the trolley line at different locations, namely, Kumbhargaon, Vadwali and Kalas Camp. There was two chawls in each place. The company claimed that on discontinuation of the trolley line, the buildings had become redundant and useless. The Government opposed this claim on the grounds that the buildings were never acquired and nothing was brought on record by the company to show that in its book the buildings had any value. In short, the Government claimed that there was no severance and, therefore, there could be no compensation granted, in as much as the buildings could be utilised by thehe report of ShriTalim, the cost of laying the rail line in the year 1976 would be Rs.2,41,053 per km. and the same was based on the estimate submitted by some of the companies like Hindustan Steels Ltd. The company claimed that by allowing 15% depreciation on the estimated cost ofthe total trolley line of 35 kms. would cost Rs.It was admitted that the rails and sleepers and other materials of the 28 kms. length from the unacquired trolley line area was sold at Rs.19,00,000/and at the same rate the company would fetch for the balance of 7 kms. submerged area of trolley line Rs.The labour cost for removal and transport of the rails and sleepers had come to Rs.The company, therefore, claimed the total of Rs.50,08,288/for rails and sleepers.he report of ShriMahajan, estimated cost for the sleepers and rails was Rs.83,643/per km. And depreciated cost came to Rs.52,193/per km. The learned Judge of the Reference Court discarded the evidence of Shri Mahajan though he accepted theformula adopted by Shri Mahajan. The Reference Court accepted the estimated cost of Rs.2,41,053/per km. for the sleepers and rails and fixed the depreciation at 35% and thus the depreciated cost was arrived at Rs.1,56,650/per km. From the said amount, an amount of Rs.23,89,131/was deducted and the balance depreciated cost was fixed at Rs.The Reference Court was pleased to grant the said amount of Rs.31,21,816/by way ofotherwise the company did not suffer any loss after the trolley line was discontinued in 1976, as was evident from theplaced on record upto the year 1978. The increase in transport cost i.e. road transportation by trucks was offset by increasing the manufacturing cost which is so obvious from the fact that the company did not incur any losses after it resorted to road transportation. The company could not have prayed for injurious affection on account of discontinuation of the trolley line and claimed compensation for rails and sleepers spread over 28 kms. of the trolley line. We do not find any justification that the company should be allowed to go with this compensation amount and have the double benefit. It would be a premium for its inaction for laying the alternative trolley line. However, for the area of 7 kms. which was submerged in the backwater, the company is required to be compensated. The depreciated cost as fixed by the Reference Court is Rs.1,56,650/per km. for the rails and sleepers. The rails and sleepers and other materials covering the length of 7 kms. would fetch Rs.4,87,608/as per the companys own case and this amount will have to be deducted from the estimated depreciated cost, which comes to Rs.1,56,650 x 7 =By deducting Rs.4,87,608/from the said amount ofthe balance amount payable to the company would be Rs.Hence the compensation amount of Rs.31,21,860/granted by the Reference Court is hereby set aside and instead we grant Rs.6,08,942/ny byon towards rails andper the companya new mobile crane was required to be purchased to handle the loading and unloading operations at the Bhigwan Railway yard and alterations and modifications were also required to be made to the godown, platform as well as the existing diesel and oil tanks. This claim was opposed by the State Government and it was contended that so far as purchase of new mobile crane was concerned, it was so done by the company for its convenience and not as a necessity. It was pointed out on the basis of the admissions made by PW 4 Shri Pujari that prior to the purchase of the new mobile crane, the company used to send its existing crane from Walchandnagar to Bhigwan on 3 to 4 days in a week as per its requirement and it was only on account of the increase in load and to meet the convenience of the company, the new mobile crane was purchased. It was further pointed out that there was no additional expenditure required to be made for godown, platform and the diesel as well as oilthese submissions are impressive, the fact remains that on a total sum of Rs.2,62,297/the depreciation being calculated from 30% to 50% would make a difference of only few thousands. The fact remains that the expenditure was made by theonly after the trolley line had become obsolete and, therefore, in our considered opinion no interference is called for in the amount awarded by the Reference Court for remodelling of the railway yard atnoted earlier, the notification under Section 4 of the Act was published on 26/10/1972 and the declaration under Section 6 of the Act was published on 1/8/1974. The first award was passed by the Land Acquisition Officer on 13/3/1976 but except granting some amount towards reimbursement of labour charges, the Land Acquisition Officer could not grant any compensation either for the area of the trolley line submerged in the backwater or trolley line area not acquired. It was only on 9/12/1981 the SLAO passed the second award and granted compensation in respect of the land covering about 6 to 7 kms. Of the trolley line and submerged in the backwater of Ujani Dam. The claim for severance and injurious affection was rejected. The said award proceeds on the basis that the company lost its possession over the land in March, 1976.As per thescheme of Section 23(1A) of the Act, it is clear that in theinstant case the benefit of additional component is not available to thethe instant case, the award concerning the claim of the company has been passed on 9/12/1981 by the Land Acquisition Officer and the claim under Section 18 of the Act for enhancement was submitted before the Land Acquisition Officer on 12/1/1982. The impugned award has been passed by the Reference Court onReference Court has awarded solatium on the second part only 15% and the larned AGP fairly conceded that in view of the settled position in law, the company must receive the amount of solatium at 30% on the compensation awarded inas well as In Partof the award passed by the Reference Court. To this extent the appeal filed by the company succeedsthe instant case, admittedly as on 30/4/1982 the application under Section 18 was pending before the Reference Court and the award has been passed on 14/3/1990, thewill be entitled for interest at the enhanced rate as per the Amendment of 1984 in the Act. This is one more area in which the appeal filed by the company succeeds partly. | 1 | 13,053 | 3,165 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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and solatium as permissible under Section 23(2) of the Act on the ground that the said benefit is available only on the compensation for the land and it cannot be granted for severance and injurious affection in respect of the unacquired land.As noted earlier, the notification under Section 4 of the Act was published on 26/10/1972 and the declaration under Section 6 of the Act was published on 1/8/1974. The first award was passed by the Land Acquisition Officer on 13/3/1976 but except granting some amount towards reimbursement of labour charges, the Land Acquisition Officer could not grant any compensation either for the area of the trolley line submerged in the backwater or trolley line area not acquired. It was only on 9/12/1981 the SLAO passed the second award and granted compensation in respect of the land covering about 6 to 7 kms. Of the trolley line and submerged in the backwater of Ujani Dam. The claim for severance and injurious affection was rejected. The said award proceeds on the basis that the company lost its possession over the land in March, 1976. As per the scheme of Section 23(1A) of the Act, it is clear that in theinstant case the benefit of additional component is not available to the company. 26. In the impugned award the Reference Court has denied the benefit of enhanced solatium under Section 23(2) and interest under Sections 28 and 34 of the Act. It has been stated by the Reference Court that the amount of solatium can be granted only on the compensation for the land and it cannot be so granted on the compensation on account of severance and injurious affection. This reasoning is not in keeping with the language of Section 23(1) of the Act and as is well settled the word "compensation for land" includes the compensation as available under Clauses thirdly and fourthly therein i.e. for severance as well as for injurious affection. In the instant case, the award concerning the claim of the company has been passed on 9/12/1981 by the Land Acquisition Officer and the claim under Section 18 of the Act for enhancement was submitted before the Land Acquisition Officer on 12/1/1982. The impugned award has been passed by the Reference Court on 14/3/1990. By following the law laid down in the case of Union of India vs. Raghubir Singh [(1989) 2 SCC 754] and subsequently followed in the case of Communidade of Morombi-O-Pequeno vs. State of Goa [(2004) 12 SCC 430] and Panna Lal Ghosh and ors. vs. Land Acquisition Collector and ors. [AIR 2004 SC 1179], the claimant-company is entitled for solatium at the enhanced rate of 30% on the compensation amount payable to it in respect of the amount determined for severance, injurious affection as well as the compensation awarded in Part-II of the award in respect of the trolley line running through the 7 kms. length and submerged in the backwater. The Reference Court has awarded solatium on the second part only 15% and the larned AGP fairly conceded that in view of the settled position in law, the company must receive the amount of solatium at 30% on the compensation awarded in Part-I as well as In Part II of the award passed by the Reference Court. To this extent the appeal filed by the company succeeds partly.Coming to the issue of interest payable under Sections 28 and 34 of the Act, the law laid down in this regard and more particularly in the case of Shree Vijay Cotton and Oil Mills Ltd. vs. State of Gujarat [(1991) 1 SCC 262] and followed subsequently in the case of Patel Joitaram Kalidas and ors. vs. Spl. Land Acquisition Officer and anr. and anr. [(2007) 2 SCC 341] , the company is entitled for said benefits on the amount of compensation as well as solatium. The interest under Sections 28 and 34 of the Act will be payable till the date the State Government has deposited the enhanced amount of compensation in the District Court, Pune. The Supreme Court in the case of Shri Vijay Cotton and Oil Mills Ltd. stated, inter alia, thus,".... There is inherent evidence in the wording of Sections 28 and 34 to show that the framers of the Act intended to assure the payment of interest to the person whose land was acquired and it was not the intention to subject the said payment to procedural hazards. Section 34 lays down that the Collector shall pay the amount awarded with interest at 6 per cent per annum... The legislative mandate is clear. It is a directive to the Collector to pay the interest in a given circumstance. Section 34 nowhere says that the interest amount is to be included in the award-decree as prepared under Section 23(1) read with Section 26 of the Act. Similarly Section 28 provides the award of the court may direct that the Collector shall pay interest. Here also the award under Section 23(1) read with Section 26 has been kept distinct from the payment of interest under the section. The interest to be paid under Section 34 and also under Section 28 is of different character than the compensation amount under Section 23(1) of the Act. Whereas the interest, if payable under the Act, can be claimed at any stage of the proceedings under the Act, the amount of compensation under Section 23(1) which is an award-decree under Section 26, is subject to the rules of procedure and limitation. The rules of procedure are handmaiden of justice. The procedural hassle cannot come in the way of substantive rights of citizens under the Act..."In the instant case, admittedly as on 30/4/1982 the application under Section 18 was pending before the Reference Court and the award has been passed on 14/3/1990, the claimant-company will be entitled for interest at the enhanced rate as per the Amendment of 1984 in the Act. This is one more area in which the appeal filed by the company succeeds partly.
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of the 28 kms. length from the unacquired trolley line area was sold at Rs.19,00,000/and at the same rate the company would fetch for the balance of 7 kms. submerged area of trolley line Rs.The labour cost for removal and transport of the rails and sleepers had come to Rs.The company, therefore, claimed the total of Rs.50,08,288/for rails and sleepers.he report of ShriMahajan, estimated cost for the sleepers and rails was Rs.83,643/per km. And depreciated cost came to Rs.52,193/per km. The learned Judge of the Reference Court discarded the evidence of Shri Mahajan though he accepted theformula adopted by Shri Mahajan. The Reference Court accepted the estimated cost of Rs.2,41,053/per km. for the sleepers and rails and fixed the depreciation at 35% and thus the depreciated cost was arrived at Rs.1,56,650/per km. From the said amount, an amount of Rs.23,89,131/was deducted and the balance depreciated cost was fixed at Rs.The Reference Court was pleased to grant the said amount of Rs.31,21,816/by way ofotherwise the company did not suffer any loss after the trolley line was discontinued in 1976, as was evident from theplaced on record upto the year 1978. The increase in transport cost i.e. road transportation by trucks was offset by increasing the manufacturing cost which is so obvious from the fact that the company did not incur any losses after it resorted to road transportation. The company could not have prayed for injurious affection on account of discontinuation of the trolley line and claimed compensation for rails and sleepers spread over 28 kms. of the trolley line. We do not find any justification that the company should be allowed to go with this compensation amount and have the double benefit. It would be a premium for its inaction for laying the alternative trolley line. However, for the area of 7 kms. which was submerged in the backwater, the company is required to be compensated. The depreciated cost as fixed by the Reference Court is Rs.1,56,650/per km. for the rails and sleepers. The rails and sleepers and other materials covering the length of 7 kms. would fetch Rs.4,87,608/as per the companys own case and this amount will have to be deducted from the estimated depreciated cost, which comes to Rs.1,56,650 x 7 =By deducting Rs.4,87,608/from the said amount ofthe balance amount payable to the company would be Rs.Hence the compensation amount of Rs.31,21,860/granted by the Reference Court is hereby set aside and instead we grant Rs.6,08,942/ny byon towards rails andper the companya new mobile crane was required to be purchased to handle the loading and unloading operations at the Bhigwan Railway yard and alterations and modifications were also required to be made to the godown, platform as well as the existing diesel and oil tanks. This claim was opposed by the State Government and it was contended that so far as purchase of new mobile crane was concerned, it was so done by the company for its convenience and not as a necessity. It was pointed out on the basis of the admissions made by PW 4 Shri Pujari that prior to the purchase of the new mobile crane, the company used to send its existing crane from Walchandnagar to Bhigwan on 3 to 4 days in a week as per its requirement and it was only on account of the increase in load and to meet the convenience of the company, the new mobile crane was purchased. It was further pointed out that there was no additional expenditure required to be made for godown, platform and the diesel as well as oilthese submissions are impressive, the fact remains that on a total sum of Rs.2,62,297/the depreciation being calculated from 30% to 50% would make a difference of only few thousands. The fact remains that the expenditure was made by theonly after the trolley line had become obsolete and, therefore, in our considered opinion no interference is called for in the amount awarded by the Reference Court for remodelling of the railway yard atnoted earlier, the notification under Section 4 of the Act was published on 26/10/1972 and the declaration under Section 6 of the Act was published on 1/8/1974. The first award was passed by the Land Acquisition Officer on 13/3/1976 but except granting some amount towards reimbursement of labour charges, the Land Acquisition Officer could not grant any compensation either for the area of the trolley line submerged in the backwater or trolley line area not acquired. It was only on 9/12/1981 the SLAO passed the second award and granted compensation in respect of the land covering about 6 to 7 kms. Of the trolley line and submerged in the backwater of Ujani Dam. The claim for severance and injurious affection was rejected. The said award proceeds on the basis that the company lost its possession over the land in March, 1976.As per thescheme of Section 23(1A) of the Act, it is clear that in theinstant case the benefit of additional component is not available to thethe instant case, the award concerning the claim of the company has been passed on 9/12/1981 by the Land Acquisition Officer and the claim under Section 18 of the Act for enhancement was submitted before the Land Acquisition Officer on 12/1/1982. The impugned award has been passed by the Reference Court onReference Court has awarded solatium on the second part only 15% and the larned AGP fairly conceded that in view of the settled position in law, the company must receive the amount of solatium at 30% on the compensation awarded inas well as In Partof the award passed by the Reference Court. To this extent the appeal filed by the company succeedsthe instant case, admittedly as on 30/4/1982 the application under Section 18 was pending before the Reference Court and the award has been passed on 14/3/1990, thewill be entitled for interest at the enhanced rate as per the Amendment of 1984 in the Act. This is one more area in which the appeal filed by the company succeeds partly.
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Rathnam P.V Vs. The Premier Automobiles Limited & Others | staff and other employees and meet urgent contingencies. An interpretation which could lead to such a catastrophic situation should be averted. That apart, if any such view is adopted, a fraudulent company can deceive any bona fide person transacting business with the company by stage-managing a petition to be presented for winding up in order to defeat such bona fide customers. This consequence has been correctly voiced by the Division Bench in the impugned judgment.26. We must, however, say that the defence of the respondents in the present case is to the effect that 3498 shares of the company under liquidation were not transferred till 22 March 1990 when the company was ordered to be wound up but the appellant implored respondent No.4 Mr.C.V.K. Rao to go alongwith the appellant in a scheme of showing backdated transfer of 3498 trust shares in favour of the appellant. This was to be done to enable the appellant to represent to M/s. Alcon Engineering for the purposes of obtaining finance. The defence of the respondents also is that when this was done, the shares were held by the trusts of which respondent No.3 Mr.A.V.K. Rao was the sole beneficiary and at the relevant time in 1990 Mr.A.V.K. Rao was a minor. It is further case of the respondents that when Mr.C.V.K. Rao refused to give the appellant possession of the share certificates pertaining to the equity shares held in the company by the 17 trusts, the appellant in his own handwriting wrote out transfer of all shares belonging to the said trusts (of which respondent No.3 Mr.A.V.K. Rao is the sole beneficiary inspite of the fact that respondent No.3 was a minor in the year 1990). According to respondent No.4, though he was still hesitant to go through with this scheme, the appellant convinced him to go alongwith it, pointing out that the appellants possession of these share certificates was harmless for the following reasons :-(a) None of the trust shares could be transferred to anyone, as his son is the sole beneficiary of these trusts;(b) the trustees of the 14 trusts which owned the 3498 shares whose certificates were to be handed over to the appellant were not parties to this transaction;(c) no transfer forms were signed and no valuable consideration was ever paid; and(d) the first transfer was executed in the name of his son.27. In short, it is the case of respondent No.4 in the affidavit in reply that there was no board meeting of the company held on 3 March 1990 as alleged by the applicant (appellant) nor was there any transfer of 3498 equity shares of the company in liquidation by the appellant before the Company Court passed the order of winding up on 22 March 1990.28. Having regard to the aforesaid stand of the respondents as set out in para 8 of the reply affidavit of respondent No.4, it appears that according to the defence of respondent Nos.3 to 5, the alleged transfer of shares took place after Elmot Engineering Co. Pvt. Ltd. (that is the company in question) was ordered to be wound up on 22 March 1990. If that be so, it is obvious that the power under section 536(2) would not be available to the Company Court for approving or confirming the transaction which would be void ab initio. Obviously, upon passing of the order of winding up by the Company Court, the Official Liquidator shall, by virtue of his office, become the Liquidator of the Company, as provided in section 449 of the Act and the properties of the company including the shares would vest in the Official Liquidator and there can be no question of approving or validating any purported transfer of shares which might have taken place after passing of the order of winding up. The decision of the Supreme Court in Pankaj Mehras case (supra) also clearly indicates that the power under Section 536(2) is to be exercised in respect of transaction after presentation of winding up petition and before the date of winding up order.29. The question whether the alleged transfer of 3498 shares in the company under liquidation had taken place before 22 March 1990 as alleged by the appellant or after 22 March 1990 as averred by the respondents is itself a seriously disputed question of fact and that question is already pending trial before the District Court at Ranga Reddy, Hyderabad. We are, therefore, of the view that the learned Company Judge was fully justified in not granting any relief to the appellant in the background of such seriously disputed questions of fact. If the District Court at Ranga Reddy, Hyderabad allows the suit filed by respondent No.3 being suit No. OS 244 of 2009, then obviously, the question of validating the transfer of 3498 shares in favour of the appellant can never arise. However, in case the District Court at Ranga Reddy, Hyderabad dismisses the suit and holds that the alleged transfer of shares had, in fact, taken place prior to 22 March 1990 then only the question would still survive for the appellant to move this Court for sanction /validating the transfer during pendency of the winding up petition No.645 of 1988.30. Since the Courts have already taken the view in Bir Chand vs. John Bros., AIR 1934 Allahabad 161, H.L.Seth vs. Wearwell Cycle Company (India) Ltd. and others, 46(1992) Delhi Law Times 599, Pankaj Mehra and another v. State of Maharashtra and others, (2000)2 SCC 756 and Navjivan Mills Ltd. (1986)59 Company Cases 201, that disposition of property of the company during the interregnum period between the date of presentation of winding up petition and the date of passing of the winding up order can be validated at any time, the company application filed by the present appellant should not have been rejected on the ground of limitation but of course, the applicant would have to give explanation for any reasonable delay in making such an application under section 536(2) of the Act. | 0[ds]15. Having heard the learned counsel for the parties and having given our anxious consideration to the rival submissions and having regard to the rival versions about the circumstances and the manner in which the appellant claims to have become owner of 3498 equity shares in the company under liquidation, we are of the view that the company application raises serious disputed questions of fact which can only be decided after a fulfledged trial and after considering the oral evidence of the parties. Admittedly, Suit No.244 of 2009 filed by Mr.A.V.K. Rao (respondent No.3 herein) in the Ranga Reddy District Court at L.B. Nagar, Hyderabad centers around the same controversy about the alleged transfer of 3498 equity shares in the company under liquidation in favour of the appellant.We must, however, say that the defence of the respondents in the present case is to the effect that 3498 shares of the company under liquidation were not transferred till 22 March 1990 when the company was ordered to be wound up but the appellant implored respondent No.4 Mr.C.V.K. Rao to go alongwith the appellant in a scheme of showing backdated transfer of 3498 trust shares in favour of the appellant. This was to be done to enable the appellant to represent to M/s. Alcon Engineering for the purposes of obtaining finance. The defence of the respondents also is that when this was done, the shares were held by the trusts of which respondent No.3 Mr.A.V.K. Rao was the sole beneficiary and at the relevant time in 1990 Mr.A.V.K. Rao was a minor. It is further case of the respondents that when Mr.C.V.K. Rao refused to give the appellant possession of the share certificates pertaining to the equity shares held in the company by the 17 trusts, the appellant in his own handwriting wrote out transfer of all shares belonging to the said trusts (of which respondent No.3 Mr.A.V.K. Rao is the sole beneficiary inspite of the fact that respondent No.3 was a minor in the year 1990). According to respondent No.4, though he was still hesitant to go through with this scheme, the appellant convinced him to go alongwith it, pointing out that the appellants possession of these share certificates was harmless for the following reasonsNone of the trust shares could be transferred to anyone, as his son is the sole beneficiary of these trusts;(b) the trustees of the 14 trusts which owned the 3498 shares whose certificates were to be handed over to the appellant were not parties to this transaction;(c) no transfer forms were signed and no valuable consideration was ever paid; and(d) the first transfer was executed in the name of his son.27. In short, it is the case of respondent No.4 in the affidavit in reply that there was no board meeting of the company held on 3 March 1990 as alleged by the applicant (appellant) nor was there any transfer of 3498 equity shares of the company in liquidation by the appellant before the Company Court passed the order of winding up on 22 March 1990.28. Having regard to the aforesaid stand of the respondents as set out in para 8 of the reply affidavit of respondent No.4, it appears that according to the defence of respondent Nos.3 to 5, the alleged transfer of shares took place after Elmot Engineering Co. Pvt. Ltd. (that is the company in question) was ordered to be wound up on 22 March 1990. If that be so, it is obvious that the power under section 536(2) would not be available to the Company Court for approving or confirming the transaction which would be void ab initio. Obviously, upon passing of the order of winding up by the Company Court, the Official Liquidator shall, by virtue of his office, become the Liquidator of the Company, as provided in section 449 of the Act and the properties of the company including the shares would vest in the Official Liquidator and there can be no question of approving or validating any purported transfer of shares which might have taken place after passing of the order of winding up. The decision of the Supreme Court in Pankaj Mehras case (supra) also clearly indicates that the power under Section 536(2) is to be exercised in respect of transaction after presentation of winding up petition and before the date of winding up order.29. The question whether the alleged transfer of 3498 shares in the company under liquidation had taken place before 22 March 1990 as alleged by the appellant or after 22 March 1990 as averred by the respondents is itself a seriously disputed question of fact and that question is already pending trial before the District Court at Ranga Reddy, Hyderabad. We are, therefore, of the view that the learned Company Judge was fully justified in not granting any relief to the appellant in the background of such seriously disputed questions of fact. If the District Court at Ranga Reddy, Hyderabad allows the suit filed by respondent No.3 being suit No. OS 244 of 2009, then obviously, the question of validating the transfer of 3498 shares in favour of the appellant can never arise. However, in case the District Court at Ranga Reddy, Hyderabad dismisses the suit and holds that the alleged transfer of shares had, in fact, taken place prior to 22 March 1990 then only the question would still survive for the appellant to move this Court for sanction /validating the transfer during pendency of the winding up petition No.645 of 1988.30. Since the Courts have already taken the view in Bir Chand vs. John Bros., AIR 1934 Allahabad 161, H.L.Seth vs. Wearwell Cycle Company (India) Ltd. and others, 46(1992) Delhi Law Times 599, Pankaj Mehra and another v. State of Maharashtra and others, (2000)2 SCC 756 and Navjivan Mills Ltd. (1986)59 Company Cases 201, that disposition of property of the company during the interregnum period between the date of presentation of winding up petition and the date of passing of the winding up order can be validated at any time, the company application filed by the present appellant should not have been rejected on the ground of limitation but of course, the applicant would have to give explanation for any reasonable delay in making such an application under section 536(2) of the Act. | 0 | 8,719 | 1,161 | ### 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:
staff and other employees and meet urgent contingencies. An interpretation which could lead to such a catastrophic situation should be averted. That apart, if any such view is adopted, a fraudulent company can deceive any bona fide person transacting business with the company by stage-managing a petition to be presented for winding up in order to defeat such bona fide customers. This consequence has been correctly voiced by the Division Bench in the impugned judgment.26. We must, however, say that the defence of the respondents in the present case is to the effect that 3498 shares of the company under liquidation were not transferred till 22 March 1990 when the company was ordered to be wound up but the appellant implored respondent No.4 Mr.C.V.K. Rao to go alongwith the appellant in a scheme of showing backdated transfer of 3498 trust shares in favour of the appellant. This was to be done to enable the appellant to represent to M/s. Alcon Engineering for the purposes of obtaining finance. The defence of the respondents also is that when this was done, the shares were held by the trusts of which respondent No.3 Mr.A.V.K. Rao was the sole beneficiary and at the relevant time in 1990 Mr.A.V.K. Rao was a minor. It is further case of the respondents that when Mr.C.V.K. Rao refused to give the appellant possession of the share certificates pertaining to the equity shares held in the company by the 17 trusts, the appellant in his own handwriting wrote out transfer of all shares belonging to the said trusts (of which respondent No.3 Mr.A.V.K. Rao is the sole beneficiary inspite of the fact that respondent No.3 was a minor in the year 1990). According to respondent No.4, though he was still hesitant to go through with this scheme, the appellant convinced him to go alongwith it, pointing out that the appellants possession of these share certificates was harmless for the following reasons :-(a) None of the trust shares could be transferred to anyone, as his son is the sole beneficiary of these trusts;(b) the trustees of the 14 trusts which owned the 3498 shares whose certificates were to be handed over to the appellant were not parties to this transaction;(c) no transfer forms were signed and no valuable consideration was ever paid; and(d) the first transfer was executed in the name of his son.27. In short, it is the case of respondent No.4 in the affidavit in reply that there was no board meeting of the company held on 3 March 1990 as alleged by the applicant (appellant) nor was there any transfer of 3498 equity shares of the company in liquidation by the appellant before the Company Court passed the order of winding up on 22 March 1990.28. Having regard to the aforesaid stand of the respondents as set out in para 8 of the reply affidavit of respondent No.4, it appears that according to the defence of respondent Nos.3 to 5, the alleged transfer of shares took place after Elmot Engineering Co. Pvt. Ltd. (that is the company in question) was ordered to be wound up on 22 March 1990. If that be so, it is obvious that the power under section 536(2) would not be available to the Company Court for approving or confirming the transaction which would be void ab initio. Obviously, upon passing of the order of winding up by the Company Court, the Official Liquidator shall, by virtue of his office, become the Liquidator of the Company, as provided in section 449 of the Act and the properties of the company including the shares would vest in the Official Liquidator and there can be no question of approving or validating any purported transfer of shares which might have taken place after passing of the order of winding up. The decision of the Supreme Court in Pankaj Mehras case (supra) also clearly indicates that the power under Section 536(2) is to be exercised in respect of transaction after presentation of winding up petition and before the date of winding up order.29. The question whether the alleged transfer of 3498 shares in the company under liquidation had taken place before 22 March 1990 as alleged by the appellant or after 22 March 1990 as averred by the respondents is itself a seriously disputed question of fact and that question is already pending trial before the District Court at Ranga Reddy, Hyderabad. We are, therefore, of the view that the learned Company Judge was fully justified in not granting any relief to the appellant in the background of such seriously disputed questions of fact. If the District Court at Ranga Reddy, Hyderabad allows the suit filed by respondent No.3 being suit No. OS 244 of 2009, then obviously, the question of validating the transfer of 3498 shares in favour of the appellant can never arise. However, in case the District Court at Ranga Reddy, Hyderabad dismisses the suit and holds that the alleged transfer of shares had, in fact, taken place prior to 22 March 1990 then only the question would still survive for the appellant to move this Court for sanction /validating the transfer during pendency of the winding up petition No.645 of 1988.30. Since the Courts have already taken the view in Bir Chand vs. John Bros., AIR 1934 Allahabad 161, H.L.Seth vs. Wearwell Cycle Company (India) Ltd. and others, 46(1992) Delhi Law Times 599, Pankaj Mehra and another v. State of Maharashtra and others, (2000)2 SCC 756 and Navjivan Mills Ltd. (1986)59 Company Cases 201, that disposition of property of the company during the interregnum period between the date of presentation of winding up petition and the date of passing of the winding up order can be validated at any time, the company application filed by the present appellant should not have been rejected on the ground of limitation but of course, the applicant would have to give explanation for any reasonable delay in making such an application under section 536(2) of the Act.
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### Explanation:
the view that the company application raises serious disputed questions of fact which can only be decided after a fulfledged trial and after considering the oral evidence of the parties. Admittedly, Suit No.244 of 2009 filed by Mr.A.V.K. Rao (respondent No.3 herein) in the Ranga Reddy District Court at L.B. Nagar, Hyderabad centers around the same controversy about the alleged transfer of 3498 equity shares in the company under liquidation in favour of the appellant.We must, however, say that the defence of the respondents in the present case is to the effect that 3498 shares of the company under liquidation were not transferred till 22 March 1990 when the company was ordered to be wound up but the appellant implored respondent No.4 Mr.C.V.K. Rao to go alongwith the appellant in a scheme of showing backdated transfer of 3498 trust shares in favour of the appellant. This was to be done to enable the appellant to represent to M/s. Alcon Engineering for the purposes of obtaining finance. The defence of the respondents also is that when this was done, the shares were held by the trusts of which respondent No.3 Mr.A.V.K. Rao was the sole beneficiary and at the relevant time in 1990 Mr.A.V.K. Rao was a minor. It is further case of the respondents that when Mr.C.V.K. Rao refused to give the appellant possession of the share certificates pertaining to the equity shares held in the company by the 17 trusts, the appellant in his own handwriting wrote out transfer of all shares belonging to the said trusts (of which respondent No.3 Mr.A.V.K. Rao is the sole beneficiary inspite of the fact that respondent No.3 was a minor in the year 1990). According to respondent No.4, though he was still hesitant to go through with this scheme, the appellant convinced him to go alongwith it, pointing out that the appellants possession of these share certificates was harmless for the following reasonsNone of the trust shares could be transferred to anyone, as his son is the sole beneficiary of these trusts;(b) the trustees of the 14 trusts which owned the 3498 shares whose certificates were to be handed over to the appellant were not parties to this transaction;(c) no transfer forms were signed and no valuable consideration was ever paid; and(d) the first transfer was executed in the name of his son.27. In short, it is the case of respondent No.4 in the affidavit in reply that there was no board meeting of the company held on 3 March 1990 as alleged by the applicant (appellant) nor was there any transfer of 3498 equity shares of the company in liquidation by the appellant before the Company Court passed the order of winding up on 22 March 1990.28. Having regard to the aforesaid stand of the respondents as set out in para 8 of the reply affidavit of respondent No.4, it appears that according to the defence of respondent Nos.3 to 5, the alleged transfer of shares took place after Elmot Engineering Co. Pvt. Ltd. (that is the company in question) was ordered to be wound up on 22 March 1990. If that be so, it is obvious that the power under section 536(2) would not be available to the Company Court for approving or confirming the transaction which would be void ab initio. Obviously, upon passing of the order of winding up by the Company Court, the Official Liquidator shall, by virtue of his office, become the Liquidator of the Company, as provided in section 449 of the Act and the properties of the company including the shares would vest in the Official Liquidator and there can be no question of approving or validating any purported transfer of shares which might have taken place after passing of the order of winding up. The decision of the Supreme Court in Pankaj Mehras case (supra) also clearly indicates that the power under Section 536(2) is to be exercised in respect of transaction after presentation of winding up petition and before the date of winding up order.29. The question whether the alleged transfer of 3498 shares in the company under liquidation had taken place before 22 March 1990 as alleged by the appellant or after 22 March 1990 as averred by the respondents is itself a seriously disputed question of fact and that question is already pending trial before the District Court at Ranga Reddy, Hyderabad. We are, therefore, of the view that the learned Company Judge was fully justified in not granting any relief to the appellant in the background of such seriously disputed questions of fact. If the District Court at Ranga Reddy, Hyderabad allows the suit filed by respondent No.3 being suit No. OS 244 of 2009, then obviously, the question of validating the transfer of 3498 shares in favour of the appellant can never arise. However, in case the District Court at Ranga Reddy, Hyderabad dismisses the suit and holds that the alleged transfer of shares had, in fact, taken place prior to 22 March 1990 then only the question would still survive for the appellant to move this Court for sanction /validating the transfer during pendency of the winding up petition No.645 of 1988.30. Since the Courts have already taken the view in Bir Chand vs. John Bros., AIR 1934 Allahabad 161, H.L.Seth vs. Wearwell Cycle Company (India) Ltd. and others, 46(1992) Delhi Law Times 599, Pankaj Mehra and another v. State of Maharashtra and others, (2000)2 SCC 756 and Navjivan Mills Ltd. (1986)59 Company Cases 201, that disposition of property of the company during the interregnum period between the date of presentation of winding up petition and the date of passing of the winding up order can be validated at any time, the company application filed by the present appellant should not have been rejected on the ground of limitation but of course, the applicant would have to give explanation for any reasonable delay in making such an application under section 536(2) of the Act.
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Oil and Natural Gas Corporation Ltd Vs. M/s Discovery Enterprises Pvt. Ltd. & Anr | oil and gas sector and DEPL has indicated on the website that it works under the fraternal hood of the said group; (vii) DEPL is promoted and managed by the son and daughter in law of the Managing Director of JDIL; (viii) The bid submitted by DEPL was signed by G D Sharma as an authorized signatory who is an employee of JDIL; (ix) The Managing Director of JDIL, Mr Naresh Kumar, had negotiated with the owners of the vessel for hiring on behalf DEPL; (x) DEPL was incorporated in 2003; (xi) Mohan Ramanathan who attended the office of ONGC in connection with the subject contract was the General Manager of JDIL; and (xii) Almost all senior officers of JDIL including its Managing Director actively took part in matters relating to the hiring of the vessel, its deployment, performance and related issues. Therefore, a corporate, financial and functional unity exists between DEPL and JDIL. 49. At the hearing before the first Arbitral Tribunal on 7 July 2009, the documents which were produced by ONGCs witness were taken on the record. Counsel for JDIL objected to these documents on the ground of relevance and admissibility but stated that he would cross-examine the witness without prejudice to those contentions. The first Arbitral Tribunal observed that the rival contentions would be decided while disposing of the application under Section 16. ONGC also filed an application for discovery and inspection before the first Arbitral Tribunal and the annexure to the application contained a schedule indicating the disclosures which were sought. The order of the first Arbitral Tribunal notes the submission of ONGC that the applications for discovery and inspection must be decided first and it is only on the completion of the process that JDILs challenge to jurisdiction under Section 16 could be addressed. The first Arbitral Tribunal deferred a decision on the two applications until the issue of jurisdiction was decided. The net result is that the applications for discovery and inspection which were crucial to ONGCs claim that there existed functional, financial and economic unity between DEPL and JDIL remained to be decided before the application under Section 16 was taken up. There is merit in the submission which was been urged on behalf of the ONGC that the application for discovery and inspection had to be decided before the plea of jurisdiction was adjudicated upon. The application for discovery and inspection was intended to facilitate ONGC in its plea that there existed functional, financial and economic unity between the two companies. The failure of the first Arbitral Tribunal to hear the application for discovery and inspection goes to the root of its interim award dated 27 October 2010 holding an absence of jurisdiction qua JDIL. The interim award of the Arbitral Tribunal in the first proceeding, dated 27 July 2010 refers to the documents which were produced by ONGC and to the submission that neither DEPL nor JDIL had led any evidence to controvert the documentary and oral evidence adduced by ONGC. The first Arbitral Tribunal upheld the plea of jurisdiction that JDIL is neither a party to the contract nor had it submitted a bid to ONGC which resulted in the formation of the contract. The Tribunal held that the agreement was only between ONGC and DEPL and that in terms of Section 7, an agreement to arbitrate is between the parties to the agreement. While observing that the arbitration agreement was only between DEPL and ONGC, the Tribunal held that neither was there an arbitration agreement between ONGC and JDIL nor was JDIL a signatory to the agreement between ONGC and DEPL. After noting the documents which were relied upon by ONGC, the Tribunal held that there was no tickle of evidence to indicate that JDIL, a distinct incorporated legal entity, ever played any role to find itself in the contract between JDIL and ONGC. The executives of JDIL who participated in the contractual dealing were held to be representatives of DEPL. Reading the interim award dated 27 October 2010 of the first Arbitral Tribunal, the unmistakable impression which emerges from the record is that the primary basis for the determination of an absence of jurisdiction is that the arbitration agreement was between ONGC and DEPL. The legal foundation of the group of companies doctrine has not been evaluated, on facts or law. True enough, the judgment of this Court in Cholo Controls (supra) is of 2013, Cheran Properties (supra) is of 2018 and MTNL (supra) came in 2020. However, ONGC had clearly laid out the factual and legal foundation for setting up a case in opposition to the plea of JDIL. The first Arbitral Tribunal has made a fundamental error of law in not deciding the application by ONGC on discovery and inspection of documents before it ruled on jurisdiction. In doing so, the first Arbitral Tribunals interim award dated 27 October 2010 goes against the principles of natural justice. The failure to consider the application for discovery and inspection of documents results in a situation where vital evidence that could have assisted the Tribunal in its determination of the challenge under Section 16 was shut out. As a matter of fact, it emerged from the record that no evidence was adduced by JDIL in support of its plea of the absence of jurisdiction under Section 16. JDIL having taken the plea of absence of jurisdiction was required to establish the grounds on which it set about to establish its plea. 50. Based on the above discussion, the interim award of the first Arbitral Tribunal stands vitiated because of: (i) The failure of the arbitral tribunal to decide upon the application for discovery and inspection filed by ONGC; (ii) The failure of the arbitral tribunal to determine the legal foundation for the application of the group of companies doctrine; and (iii) The decision of the arbitral tribunal that it would decide upon the applications filed by ONGC only after the plea of jurisdiction was disposed of. D. Conclusion | 0[ds]The interpretation of the term parties vis-à-vis an arbitration agreement under Section 7 has been dealt with by this Court in Indowind (supra) in the context of an application for the appointment of an arbitrator under Section 11(6). In that case, the second respondent company was the promoter of Indowind. The first and second respondent had entered into an agreement of sale. In the agreement, the seller was described to include the first respondent and its subsidiaries. The second respondent was described as the buyer and as the promoter of Indowind. Under the agreement, the seller agreed to transfer business assets for a consideration which was partly payable in money and partly by the issuance of shares. The sale agreement also incorporated a clause to arbitrate any dispute. The Board of Directors of the first and second respondent approved of the agreement, but there was no approval by the Board of Indowind. After a dispute arose, the first respondent instituted a petition under Section 11(6) against both the second respondent and Indowind for the appointment of an arbitrator. Indowind resisted the petition on the ground that it was not a party to the agreement between the first and second respondent. The application was allowed by the Chief Justice of the Madras High Court by observing that prima facie Indowind was a party after lifting the corporate veil and noticing Indowinds intention to be bound by the sale agreement. Two issues were framed by this Court for consideration:(i) Whether an arbitration clause found in a document (agreement) between two parties, could be considered as a binding arbitration agreement on a person who is not a signatory to the agreement;(ii) Whether a company could be said to be a party to a contract containing an arbitration agreement, even though it did not sign the agreement containing an arbitration clause, with reference to its subsequent conduct.Justice R V Raveendran, speaking for the two-judge Bench in Indowind (supra) held that if Indowind had acknowledged or confirmed in any correspondence, agreement or document that it was a party to the arbitration agreement between the first and second respondent or that it was bound by the arbitration agreement contained in that contract, it could have been possible to say that Indowind is a party to the arbitration agreement. That however was not the position. The decision in Indowind (supra) was in the context of an application under Section 11(6). A party which was not a signatory to the arbitration agreement had raised an objection on the ground that the agreement to arbitration did not operate in relation to it. The Court refused to pierce the corporate veil and relied on a strict interpretation of Section 7 to hold thus :17. It is not in dispute that Subuthi and Indowind are two independent companies incorporated under the Companies Act, 1956. Each company is a separate and distinct legal entity and the mere fact that the two Companies have common shareholders or common Board of Directors, will not make the two Companies a single entity. Nor will the existence of common shareholders or Directors lead to an inference that one company will be bound by the acts of the other. If the Director who signed on behalf of Subuthi was also a Director of Indowind and if the intention of the parties was that Indowind should be bound by the agreement, nothing prevented Wescare insisting that Indowind should be made a party to the agreement and requesting the Director who signed for Subuthi also to sign on behalf of Indowind.18. The very fact that the parties carefully avoided making Indowind a party and the fact that the Director of Subuthi though a Director of Indowind, was careful not to sign the agreement as on behalf of Indowind, shows that the parties did not intend that Indowind should be a party to the agreement. Therefore the mere fact that Subuthi described Indowind as its nominee or as a company promoted by it or that the agreement was purportedly entered by Subuthi on behalf of Indowind, will not make Indowind a party in the absence of a ratification, approval, adoption or confirmation of the agreement dated 24-2-2006 by Indowind.20. Wescare referred to several acts and transactions as also the conduct of Indowind to contend that an inference should be drawn that Indowind was a party to the agreement or that it had affirmed and approved the agreement or acted in terms of the agreement. An examination of the transactions between the parties to decide whether there is a valid contract or whether a particular party owed any obligation towards another party or whether any person had committed a breach of contract, will be possible in a suit or arbitration proceeding claiming damages or performance. But the issue in a proceeding under Section 11 is not whether there was any contract between the parties or any breach thereof. A contract can be entered into even orally. A contract can be spelt out from correspondence or conduct. But an arbitration agreement is different from a contract. An arbitration agreement can come into existence only in the manner contemplated under Section 7. If Section 7 says that an arbitration agreement should be in writing, it will not be sufficient for the petitioner in an application under Section 11 to show that there existed an oral contract between the parties, or that Indowind had transacted with Wescare, or Wescare had performed certain acts with reference to Indowind, as proof of arbitration agreement.24. It is no doubt true that if Indowind had acknowledged or confirmed in any correspondence or other agreement or document, that it is a party to the arbitration agreement dated 24-2-2006 or that it is bound by the arbitration agreement contained therein, it could have been possible to say that Indowind is a party to the arbitration agreement. But that would not be under Section 7(4)(a) but under Section 7(4)(b) or Section 7(5). Be that as it may. That is not the case of Wescare. In fact, the delivery notes/invoices issued by Wescare do not refer to the agreement dated 24-2-2006. Nor does any letter or correspondence sent by Indowind refer to the agreement dated 24-2-2006, either as an agreement executed by it or as an agreement binding on it…..18. Subsequently, in Chloro Controls (supra), a three-judge Bench of this Court dealt with the provisions of Section 45, which falls in Part II of the Act of 1996 dealing with the enforcement of foreign arbitral awards. Section 45 postulates that notwithstanding anything contained in Part I, a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement in writing for arbitration shall at the request of one of the parties or any person claiming through or under him refer the parties to arbitration unless it finds that the agreement is void, inoperative or incapable of being performed. Interpreting the expressions through or under in Section 45, this Court held that though an arbitration normally would take place between parties to the arbitration agreement, it could take place between a signatory to an arbitration agreement and a third party as well. This Court held that though the scope of the arbitration agreement is limited to parties who have entered into it and those who claim under or through them, courts under the English law have developed the group of companies doctrine. In substance, the doctrine postulates that an arbitration agreement which has been entered into by a company within a group of companies, can bind its non-signatory affiliates or sister concerns if the circumstances demonstrate a mutual intention of the parties to bind both the signatory and affiliated, non-signatory parties. Elaborating on the concept, the Court held:71. Though the scope of an arbitration agreement is limited to the parties who entered into it and those claiming under or through them, the courts under the English law have, in certain cases, also applied the group of companies doctrine. This doctrine has developed in the international context, whereby an arbitration agreement entered into by a company, being one within a group of companies, can bind its non- signatory affiliates or sister or parent concerns, if the circumstances demonstrate that the mutual intention of all the parties was to bind both the signatories and the non-signatory affiliates. This theory has been applied in a number of arbitrations so as to justify a tribunal taking jurisdiction over a party who is not a signatory to the contract containing the arbitration agreement. [Russell on Arbitration (23rd Edn.)]72. This evolves the principle that a non-signatory party could be subjected to arbitration provided these transactions were with group of companies and there was a clear intention of the parties to bind both, the signatory as well as the non- signatory parties. In other words, intention of the parties is a very significant feature which must be established before the scope of arbitration can be said to include the signatory as well as the non-signatory parties.Noting that this would only be in exceptional cases, the Court in Chloro Controls (supra) held that these exceptions would be examined on the touchstone of:(i) A direct relationship to the party signatory to the arbitration agreement;(ii) Direct commonality of the subject matter; and(iii) Whether the agreement is of a composite transaction where the performance of a mother agreement may not be feasible without the execution or performance of a subsidiary or ancillary agreement.20. In Cheran Properties (supra), a three-judge Bench of this Court interpreted and applied the group of companies doctrine in the context of the enforcement of a domestic arbitration award against a non-signatory to the arbitration agreement. The Court observed that the decision by a two-judge Bench in Indowind (supra) was rendered before the evolution and application of the group of companies doctrine by a three-judge Bench in Chloro Controls (supra):23. As the law has evolved, it has recognised that modern business transactions are often effectuated through multiple layers and agreements. There may be transactions within a group of companies. The circumstances in which they have entered into them may reflect an intention to bind both signatory and non-signatory entities within the same group. In holding a non-signatory bound by an arbitration agreement, the court approaches the matter by attributing to the transactions a meaning consistent with the business sense which was intended to be ascribed to them. Therefore, factors such as the relationship of a non-signatory to a party which is a signatory to the agreement, the commonality of subject- matter and the composite nature of the transaction weigh in the balance. The group of companies doctrine is essentially intended to facilitate the fulfilment of a mutually held intent between the parties, where the circumstances indicate that the intent was to bind both signatories and non-signatories. The effort is to find the true essence of the business arrangement and to unravel from a layered structure of commercial arrangements, an intent to bind someone who is not formally a signatory but has assumed the obligation to be bound by the actions of a signatory.This Court in Cheran Properties (supra) also analysed academic literature that scrutinised adjudicatory trends across the world. It noted that the written intention to arbitrate between parties can extend to bind non-signatories with the aim to target the creditworthy member of the group of companies. However, the principle of separate legal personalities of companies also has to be balanced. The corporate veil can be pierced to bind non-signatories upon a construction of the arbitration agreement, the intention at the time of entering the contract and the performance of the underlying contract:25. Does the requirement, as in Section 7, that an arbitration agreement be in writing exclude the possibility of binding third parties who may not be signatories to an agreement between two contracting entities? The evolving body of academic literature as well as adjudicatory trends indicate that in certain situations, an arbitration agreement between two or more parties may operate to bind other parties as well. Redfern and Hunter explain the theoretical foundation of this principle:… The requirement of a signed agreement in writing, however, does not altogether exclude the possibility of an arbitration agreement concluded in proper form between two or more parties also binding other parties. Third parties to an arbitration agreement have been held to be bound by (or entitled to rely on) such an agreement in a variety of ways : first, by operation of the group of companies doctrine pursuant to which the benefits and duties arising from an arbitration agreement may in certain circumstances be extended to other members of the same group of companies; and, secondly, by operation of general rules of private law, principally on assignment, agency, and succession…. [Id at p. 99.]The group of companies doctrine has been applied to pierce the corporate veil to locate the true party in interest, and more significantly, to target the creditworthy member of a group of companies [ Op cit fn. 16, 2.40, p. 100.] . Though the extension of this doctrine is met with resistance on the basis of the legal imputation of corporate personality, the application of the doctrine turns on a construction of the arbitration agreement and the circumstances relating to the entry into and performance of the underlying contract. [Id, 2.41 at p. 100.]This Court in Cheran Properties (supra) also distinguished the principle laid down in Chloro Controls (supra) from its application in the context of Section 11(6) in Duro Felguera v. Gangavaram Port Limited (2017) 9 SCC 729 [Duro Felguera]. In Duro Felguera (supra), a two- judge Bench of this Court refused to direct a joint arbitration in five different contracts between sister concerns of one of the parties of the original arbitration agreement, by respecting the conscious intention of the parties to subject themselves to separate arbitration agreements under their individual contracts. This Court in Cheran Properties (supra) distinguished the factual situation in Duro Felguera (supra) by discerning the mutual intention of the parties and performance of the contract:34. […..] The principle which underlies Chloro Controls [Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689] is that an arbitration agreement which is entered into by a company within a group of companies may bind non- signatory affiliates, if the circumstances are such as to demonstrate the mutual intention of the parties to bind both signatories and non-signatories. In applying the doctrine, the law seeks to enforce the common intention of the parties, where circumstances indicate that both signatories and non- signatories were intended to be bound. In Duro [Duro Felguera v. Gangavaram Port Ltd., (2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764] , the case was held to stand on a different footing since all the five different packages as well as the corporate guarantee did not depend on the terms and conditions of the original package nor on the memorandum of understanding executed between the parties. The judgment in Duro[Duro Felguera v. Gangavaram Port Ltd., (2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764] does not detract from the principle which was enunciated in Chloro Controls[Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689].22. In MTNL (supra), a two-judge Bench of this Court was considering a situation in which MTNL had floated certain bonds to Can Bank Financial Services Ltd (Canfina) through a memorandum of understanding. The bond amount was placed in an FD by MTNL with Canfina. Canfina paid back a part of the amount of the FD while the rest was not paid to MTNL. As a consequence, MTNL did not service the interest of the bonds. Canfina was a wholly-owned subsidiary of Canara Bank. Canfina had transferred the bonds to Canara Bank. Subsequently, all three parties had participated in a meeting where the minutes indicated their view to take recourse to arbitration. A sole arbitrator was appointed to resolve the dispute and notice was issued in the arbitration to MTNL, Canara Bank and Canfina. A dispute was raised on whether Canfina could be joined as a party to the arbitral proceedings. In this backdrop, this Court while dealing with the joinder of Canfina in the arbitration proceedings held:10.3. A non-signatory can be bound by an arbitration agreement on the basis of the group of companies doctrine, where the conduct of the parties evidences a clear intention of the parties to bind both the signatory as well as the non- signatory parties. Courts and tribunals have invoked this doctrine to join a non-signatory member of the group, if they are satisfied that the non-signatory company was by reference to the common intention of the parties, a necessary party to the contract.While elucidating the circumstances in which the group of companies doctrine could be invoked to bind the non-signatory, the Court held:10.5. The group of companies doctrine has been invoked by courts and tribunals in arbitrations, where an arbitration agreement is entered into by one of the companies in the group; and the non-signatory affiliate, or sister, or parent concern, is held to be bound by the arbitration agreement, if the facts and circumstances of the case demonstrate that it was the mutual intention of all parties to bind both the signatories and the non-signatory affiliates in the group. The doctrine provides that a non-signatory may be bound by an arbitration agreement where the parent or holding company, or a member of the group of companies is a signatory to the arbitration agreement and the non- signatory entity on the group has been engaged in the negotiation or performance of the commercial contract, or made statements indicating its intention to be bound by the contract, the non-signatory will also be bound and benefitted by the relevant contracts. [ Interim award in ICC Case No. 4131 of 1982, IX YB Comm Arb 131 (1984); Award in ICC Case No. 5103 of 1988, 115 JDI (Clunet) 1206 (1988). See also Gary B. Born : International Commercial Arbitration, Vol. I, 2009, pp. 1170-1171.]10.6. The circumstances in which the group of companies doctrine could be invoked to bind the non-signatory affiliate of a parent company, or inclusion of a third party to an arbitration, if there is a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject-matter; the composite nature of the transaction between the parties. A composite transaction refers to a transaction which is interlinked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or the ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute.10.7. The group of companies doctrine has also been invoked in cases where there is a tight group structure with strong organisational and financial links, so as to constitute a single economic unit, or a single economic reality. In such a situation, signatory and non-signatories have been bound together under the arbitration agreement. This will apply in particular when the funds of one company are used to financially support or restructure other members of the group. [ ICC Case No. 4131 of 1982, ICC Case No. 5103 of 1988.].On the facts, the Court held that Canfina was set up as a wholly-owned subsidiary of Canara Bank. The dispute arose out of the subscription by Canfina of the bonds floated by MTNL which were subsequently transferred by Canfina to its holding company, Canara Bank. MTNL had contended that it was constrained to cancel the allotment due to the non-payment of the sale consideration by Canfina. Hence, this Court held that it would be futile to decide the dispute only between MTNL and Canara Bank in the absence of Canfina since indisputably, the original transaction emanated from the agreement between MTNL and Canfina and there was a clear and direct nexus between the issuance of the bonds, their subsequent transfer by Canfina to Canara Bank and the cancellation of allotment by MTNL. Canfina was held to be a proper party to the proceedings.36. In Ssangyong Engineering (supra), this Court held that the expression public policy of India in Section 34 would mean the fundamental policy of Indian law as explained in Associate Builders v. DDA (2015) 3 SCC 49 . Sub-section (2A) to Section 34, which was introduced by the Amending Act of 2016, provides for an additional ground of challenge in the case of a domestic award, namely the existence of a patent illegality apparent on the face of the award. Justice R F Nariman, speaking for the two-judge Bench, observed that:34. What is clear, therefore, is that the expression public policy of India, whether contained in Section 34 or in Section 48, would now mean the fundamental policy of Indian law as explained in paras 18 and 27 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] i.e. the fundamental policy of Indian law would be relegated to Renusagar understanding of this expression. This would necessarily mean that Western Geco [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] expansion has been done away with. In short, Western Geco [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] , as explained in paras 28 and 29 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a judicial approach, the Courts intervention would be on the merits of the award, which cannot be permitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sections 18 and 34(2)(a)(iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in para 30 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] .41. What is important to note is that a decision which is perverse, as understood in paras 31 and 32 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , while no longer being a ground for challenge under public policy of India, would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be characterised as perverse.37. In this backdrop, it has been held that:(i) A mere contravention of substantive law is not a ground to set aside an award;(ii) The court while exercising the power of judicial review should not reappreciate evidence;(iii) The construction of a contract is essentially a matter for the arbitral tribunal to decide;(iv) An award can be construed to be perverse only if it is based on no evidence or has ignored vital evidence;(v) The illegality of an award must be of such a nature or character so as to go to the root of the award; and(vi) Judicial intervention under Section 34 would not be warranted only because an alternative view on facts or the construction of the award is available.40. Now it is in this backdrop that the Court must approach the task at hand. In the present batch of cases, there are two parallel proceedings arising out of the constitution of two sets of arbitral tribunals. In the first proceeding, the Arbitral Tribunal consisted of Mr Justice S P Kurdukar, Mr Justice M S Rane and Mr S Venkateswaran. Both DEPL and JDIL were made parties by ONGC, which is the claimant. The application filed by JDIL under Section 16 was allowed by the Arbitral Tribunal by its interim award dated 27 October 2010. The appeal filed by ONGC was dismissed by the Bombay High Court on 27 June 2012. In pursuance of the arbitration proceedings, the Arbitral Tribunal made a final award on 6 June 2013 in favour of ONGC against DEPL.46. It is important to note that in the Arbitral Award in the second proceeding, no issue of jurisdiction arose since only JDIL and ONGC were parties and the claim of JDIL arose under four distinct contracts of JDIL with ONGC. DEPL was not a party to that proceeding. The examination-in-chief of ONGCs witness in the first arbitration proceeding was treated as an affidavit in the subsequent arbitration involving the claim by JDIL against ONGC. This Court has been informed that the cross-examination of the witness in the first arbitral proceeding leading up to the interim award dated 27 October 2010 was also treated as a cross-examination in the subsequent arbitration. JDIL also led evidence, inter alia, of its manager in support of its assertion that there were neither any common directors between JDIL and DEPL nor did JDIL hold any shares in DEPL.47. The above narration indicates that the batch of cases which has been transferred to this Court arises from a claim in arbitration by JDIL against ONGC under four contracts. The Arbitral Tribunal by its award dated 9 October 2013 (the Arbitral Award in the second proceeding) allowed the claim. ONGC did not plead any defence to the claim on merits. However, ONGC asserted a right to adjust the amounts which were due to JDIL against the claims which ONGC had against DEPL under a distinct contract. ONGC asserted that JDIL and DEPL form one common economic entity and that the group of companies doctrine would apply. Thus essentially, the grounds on which ONGC opposed JDILs application under Section 16 in the first arbitral proceeding overlap with the basis on which ONGC sought adjustment of the claims due to JDIL in the second arbitral proceeding. There is thus a significant degree of overlap between the issues which arose before the first Arbitral Tribunal in its interim award dated 27 October 2010 and those on which the Arbitral Tribunal rendered its Arbitral Award dated 9 October 2013 in the second proceeding. As we have seen above, Arbitral Award in the second proceeding relied on the findings contained in the interim award of the first Arbitral Tribunal dated 27 October 2010. In opposing JDILs application under Section 16 before the Arbitral Tribunal consisting of Mr Justice S P Kurdukar, Mr Justice M S Rane and Mr S Venkateswaran, ONGC invoked the group of companies doctrine. In the course of its statement of claim, ONGC pleaded that DEPL was awarded the contract by relying on the fact that it is a group company of the DP Jindal Group of Companies and that JDIL has a vital business interest in DEPL, which can be said to be an alter ego of JDIL.48. ONGC pleaded that it had a continuing business relationship with JDIL for the past several years and this was a major factor which weighed with ONGC while deciding to award the contract in favour of the DEPL. On the date of the submission of the claim, ONGC had three subsisting contracts with JDIL. ONGC claimed that DEPL has a close corporate unity with the Jindal Group of Companies and that it has consistently represented that they are a group company within the DP Jindal Group of Companies. According to ONGC, besides the letterheads of DEPL which indicate that it belongs to the DP Jindal Group of Companies, JDIL has also acknowledged this position on its website. ONGC also indicated that since DEPL is liable to compensate ONGC for the loss suffered by it, ONGC has adjusted the monies payable to JDIL as security to satisfy the award. ONGC led the evidence of its Chief Manager (MM), Anindya Bhattacharya. The witness for ONGC deposed that:(i) At the pre-bid conference which was held on 7 October 2005, DEPL was represented by Mohan Ramanathan together with two other persons and he is an employee of JDIL;(ii) In response to the second expression of interest dated 17 October 2005, DEPL submitted its offer which was signed by G D Sharma on behalf of DEPL;(iii) G D Sharma holds the position of Manager (Commercial and Development) with JDIL;(iv) In response to ONGCs invitation for sealed bids from shortlisted parties on 31 October 2005, DEPL submitted its bid under a cover letter dated 4 November 2005. The annexure to the letter contained a resume of DEPL declaring that it is a part of the DP Jindal Group of Companies which has a strong presence in the oil and gas sector and is engaged in off shore drilling for oil and gas;(v) Both DEPL and JDIL shared a common addresses and telephone numbers;(vi) DEPL was created by the Jindal Group with the definite purpose of rendering a particular service to the oil and gas sector and DEPL has indicated on the website that it works under the fraternal hood of the said group;(vii) DEPL is promoted and managed by the son and daughter in law of the Managing Director of JDIL;(viii) The bid submitted by DEPL was signed by G D Sharma as an authorized signatory who is an employee of JDIL;(ix) The Managing Director of JDIL, Mr Naresh Kumar, had negotiated with the owners of the vessel for hiring on behalf DEPL;(x) DEPL was incorporated in 2003;(xi) Mohan Ramanathan who attended the office of ONGC in connection with the subject contract was the General Manager of JDIL; and(xii) Almost all senior officers of JDIL including its Managing Director actively took part in matters relating to the hiring of the vessel, its deployment, performance and related issues. Therefore, a corporate, financial and functional unity exists between DEPL and JDIL.49. At the hearing before the first Arbitral Tribunal on 7 July 2009, the documents which were produced by ONGCs witness were taken on the record. Counsel for JDIL objected to these documents on the ground of relevance and admissibility but stated that he would cross-examine the witness without prejudice to those contentions. The first Arbitral Tribunal observed that the rival contentions would be decided while disposing of the application under Section 16. ONGC also filed an application for discovery and inspection before the first Arbitral Tribunal and the annexure to the application contained a schedule indicating the disclosures which were sought. The order of the first Arbitral Tribunal notes the submission of ONGC that the applications for discovery and inspection must be decided first and it is only on the completion of the process that JDILs challenge to jurisdiction under Section 16 could be addressed. The first Arbitral Tribunal deferred a decision on the two applications until the issue of jurisdiction was decided. The net result is that the applications for discovery and inspection which were crucial to ONGCs claim that there existed functional, financial and economic unity between DEPL and JDIL remained to be decided before the application under Section 16 was taken up. There is merit in the submission which was been urged on behalf of the ONGC that the application for discovery and inspection had to be decided before the plea of jurisdiction was adjudicated upon. The application for discovery and inspection was intended to facilitate ONGC in its plea that there existed functional, financial and economic unity between the two companies. The failure of the first Arbitral Tribunal to hear the application for discovery and inspection goes to the root of its interim award dated 27 October 2010 holding an absence of jurisdiction qua JDIL. The interim award of the Arbitral Tribunal in the first proceeding, dated 27 July 2010 refers to the documents which were produced by ONGC and to the submission that neither DEPL nor JDIL had led any evidence to controvert the documentary and oral evidence adduced by ONGC. The first Arbitral Tribunal upheld the plea of jurisdiction that JDIL is neither a party to the contract nor had it submitted a bid to ONGC which resulted in the formation of the contract. The Tribunal held that the agreement was only between ONGC and DEPL and that in terms of Section 7, an agreement to arbitrate is between the parties to the agreement. While observing that the arbitration agreement was only between DEPL and ONGC, the Tribunal held that neither was there an arbitration agreement between ONGC and JDIL nor was JDIL a signatory to the agreement between ONGC and DEPL. After noting the documents which were relied upon by ONGC, the Tribunal held that there was no tickle of evidence to indicate that JDIL, a distinct incorporated legal entity, ever played any role to find itself in the contract between JDIL and ONGC. The executives of JDIL who participated in the contractual dealing were held to be representatives of DEPL. Reading the interim award dated 27 October 2010 of the first Arbitral Tribunal, the unmistakable impression which emerges from the record is that the primary basis for the determination of an absence of jurisdiction is that the arbitration agreement was between ONGC and DEPL. The legal foundation of the group of companies doctrine has not been evaluated, on facts or law. True enough, the judgment of this Court in Cholo Controls (supra) is of 2013, Cheran Properties (supra) is of 2018 and MTNL (supra) came in 2020. However, ONGC had clearly laid out the factual and legal foundation for setting up a case in opposition to the plea of JDIL. The first Arbitral Tribunal has made a fundamental error of law in not deciding the application by ONGC on discovery and inspection of documents before it ruled on jurisdiction. In doing so, the first Arbitral Tribunals interim award dated 27 October 2010 goes against the principles of natural justice. The failure to consider the application for discovery and inspection of documents results in a situation where vital evidence that could have assisted the Tribunal in its determination of the challenge under Section 16 was shut out. As a matter of fact, it emerged from the record that no evidence was adduced by JDIL in support of its plea of the absence of jurisdiction under Section 16. JDIL having taken the plea of absence of jurisdiction was required to establish the grounds on which it set about to establish its plea.50. Based on the above discussion, the interim award of the first Arbitral Tribunal stands vitiated because of:(i) The failure of the arbitral tribunal to decide upon the application for discovery and inspection filed by ONGC;(ii) The failure of the arbitral tribunal to determine the legal foundation for the application of the group of companies doctrine; and(iii) The decision of the arbitral tribunal that it would decide upon the applications filed by ONGC only after the plea of jurisdiction was disposed of. | 0 | 18,565 | 6,574 | ### Instruction:
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oil and gas sector and DEPL has indicated on the website that it works under the fraternal hood of the said group; (vii) DEPL is promoted and managed by the son and daughter in law of the Managing Director of JDIL; (viii) The bid submitted by DEPL was signed by G D Sharma as an authorized signatory who is an employee of JDIL; (ix) The Managing Director of JDIL, Mr Naresh Kumar, had negotiated with the owners of the vessel for hiring on behalf DEPL; (x) DEPL was incorporated in 2003; (xi) Mohan Ramanathan who attended the office of ONGC in connection with the subject contract was the General Manager of JDIL; and (xii) Almost all senior officers of JDIL including its Managing Director actively took part in matters relating to the hiring of the vessel, its deployment, performance and related issues. Therefore, a corporate, financial and functional unity exists between DEPL and JDIL. 49. At the hearing before the first Arbitral Tribunal on 7 July 2009, the documents which were produced by ONGCs witness were taken on the record. Counsel for JDIL objected to these documents on the ground of relevance and admissibility but stated that he would cross-examine the witness without prejudice to those contentions. The first Arbitral Tribunal observed that the rival contentions would be decided while disposing of the application under Section 16. ONGC also filed an application for discovery and inspection before the first Arbitral Tribunal and the annexure to the application contained a schedule indicating the disclosures which were sought. The order of the first Arbitral Tribunal notes the submission of ONGC that the applications for discovery and inspection must be decided first and it is only on the completion of the process that JDILs challenge to jurisdiction under Section 16 could be addressed. The first Arbitral Tribunal deferred a decision on the two applications until the issue of jurisdiction was decided. The net result is that the applications for discovery and inspection which were crucial to ONGCs claim that there existed functional, financial and economic unity between DEPL and JDIL remained to be decided before the application under Section 16 was taken up. There is merit in the submission which was been urged on behalf of the ONGC that the application for discovery and inspection had to be decided before the plea of jurisdiction was adjudicated upon. The application for discovery and inspection was intended to facilitate ONGC in its plea that there existed functional, financial and economic unity between the two companies. The failure of the first Arbitral Tribunal to hear the application for discovery and inspection goes to the root of its interim award dated 27 October 2010 holding an absence of jurisdiction qua JDIL. The interim award of the Arbitral Tribunal in the first proceeding, dated 27 July 2010 refers to the documents which were produced by ONGC and to the submission that neither DEPL nor JDIL had led any evidence to controvert the documentary and oral evidence adduced by ONGC. The first Arbitral Tribunal upheld the plea of jurisdiction that JDIL is neither a party to the contract nor had it submitted a bid to ONGC which resulted in the formation of the contract. The Tribunal held that the agreement was only between ONGC and DEPL and that in terms of Section 7, an agreement to arbitrate is between the parties to the agreement. While observing that the arbitration agreement was only between DEPL and ONGC, the Tribunal held that neither was there an arbitration agreement between ONGC and JDIL nor was JDIL a signatory to the agreement between ONGC and DEPL. After noting the documents which were relied upon by ONGC, the Tribunal held that there was no tickle of evidence to indicate that JDIL, a distinct incorporated legal entity, ever played any role to find itself in the contract between JDIL and ONGC. The executives of JDIL who participated in the contractual dealing were held to be representatives of DEPL. Reading the interim award dated 27 October 2010 of the first Arbitral Tribunal, the unmistakable impression which emerges from the record is that the primary basis for the determination of an absence of jurisdiction is that the arbitration agreement was between ONGC and DEPL. The legal foundation of the group of companies doctrine has not been evaluated, on facts or law. True enough, the judgment of this Court in Cholo Controls (supra) is of 2013, Cheran Properties (supra) is of 2018 and MTNL (supra) came in 2020. However, ONGC had clearly laid out the factual and legal foundation for setting up a case in opposition to the plea of JDIL. The first Arbitral Tribunal has made a fundamental error of law in not deciding the application by ONGC on discovery and inspection of documents before it ruled on jurisdiction. In doing so, the first Arbitral Tribunals interim award dated 27 October 2010 goes against the principles of natural justice. The failure to consider the application for discovery and inspection of documents results in a situation where vital evidence that could have assisted the Tribunal in its determination of the challenge under Section 16 was shut out. As a matter of fact, it emerged from the record that no evidence was adduced by JDIL in support of its plea of the absence of jurisdiction under Section 16. JDIL having taken the plea of absence of jurisdiction was required to establish the grounds on which it set about to establish its plea. 50. Based on the above discussion, the interim award of the first Arbitral Tribunal stands vitiated because of: (i) The failure of the arbitral tribunal to decide upon the application for discovery and inspection filed by ONGC; (ii) The failure of the arbitral tribunal to determine the legal foundation for the application of the group of companies doctrine; and (iii) The decision of the arbitral tribunal that it would decide upon the applications filed by ONGC only after the plea of jurisdiction was disposed of. D. Conclusion
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Jindal Group with the definite purpose of rendering a particular service to the oil and gas sector and DEPL has indicated on the website that it works under the fraternal hood of the said group;(vii) DEPL is promoted and managed by the son and daughter in law of the Managing Director of JDIL;(viii) The bid submitted by DEPL was signed by G D Sharma as an authorized signatory who is an employee of JDIL;(ix) The Managing Director of JDIL, Mr Naresh Kumar, had negotiated with the owners of the vessel for hiring on behalf DEPL;(x) DEPL was incorporated in 2003;(xi) Mohan Ramanathan who attended the office of ONGC in connection with the subject contract was the General Manager of JDIL; and(xii) Almost all senior officers of JDIL including its Managing Director actively took part in matters relating to the hiring of the vessel, its deployment, performance and related issues. Therefore, a corporate, financial and functional unity exists between DEPL and JDIL.49. At the hearing before the first Arbitral Tribunal on 7 July 2009, the documents which were produced by ONGCs witness were taken on the record. Counsel for JDIL objected to these documents on the ground of relevance and admissibility but stated that he would cross-examine the witness without prejudice to those contentions. The first Arbitral Tribunal observed that the rival contentions would be decided while disposing of the application under Section 16. ONGC also filed an application for discovery and inspection before the first Arbitral Tribunal and the annexure to the application contained a schedule indicating the disclosures which were sought. The order of the first Arbitral Tribunal notes the submission of ONGC that the applications for discovery and inspection must be decided first and it is only on the completion of the process that JDILs challenge to jurisdiction under Section 16 could be addressed. The first Arbitral Tribunal deferred a decision on the two applications until the issue of jurisdiction was decided. The net result is that the applications for discovery and inspection which were crucial to ONGCs claim that there existed functional, financial and economic unity between DEPL and JDIL remained to be decided before the application under Section 16 was taken up. There is merit in the submission which was been urged on behalf of the ONGC that the application for discovery and inspection had to be decided before the plea of jurisdiction was adjudicated upon. The application for discovery and inspection was intended to facilitate ONGC in its plea that there existed functional, financial and economic unity between the two companies. The failure of the first Arbitral Tribunal to hear the application for discovery and inspection goes to the root of its interim award dated 27 October 2010 holding an absence of jurisdiction qua JDIL. The interim award of the Arbitral Tribunal in the first proceeding, dated 27 July 2010 refers to the documents which were produced by ONGC and to the submission that neither DEPL nor JDIL had led any evidence to controvert the documentary and oral evidence adduced by ONGC. The first Arbitral Tribunal upheld the plea of jurisdiction that JDIL is neither a party to the contract nor had it submitted a bid to ONGC which resulted in the formation of the contract. The Tribunal held that the agreement was only between ONGC and DEPL and that in terms of Section 7, an agreement to arbitrate is between the parties to the agreement. While observing that the arbitration agreement was only between DEPL and ONGC, the Tribunal held that neither was there an arbitration agreement between ONGC and JDIL nor was JDIL a signatory to the agreement between ONGC and DEPL. After noting the documents which were relied upon by ONGC, the Tribunal held that there was no tickle of evidence to indicate that JDIL, a distinct incorporated legal entity, ever played any role to find itself in the contract between JDIL and ONGC. The executives of JDIL who participated in the contractual dealing were held to be representatives of DEPL. Reading the interim award dated 27 October 2010 of the first Arbitral Tribunal, the unmistakable impression which emerges from the record is that the primary basis for the determination of an absence of jurisdiction is that the arbitration agreement was between ONGC and DEPL. The legal foundation of the group of companies doctrine has not been evaluated, on facts or law. True enough, the judgment of this Court in Cholo Controls (supra) is of 2013, Cheran Properties (supra) is of 2018 and MTNL (supra) came in 2020. However, ONGC had clearly laid out the factual and legal foundation for setting up a case in opposition to the plea of JDIL. The first Arbitral Tribunal has made a fundamental error of law in not deciding the application by ONGC on discovery and inspection of documents before it ruled on jurisdiction. In doing so, the first Arbitral Tribunals interim award dated 27 October 2010 goes against the principles of natural justice. The failure to consider the application for discovery and inspection of documents results in a situation where vital evidence that could have assisted the Tribunal in its determination of the challenge under Section 16 was shut out. As a matter of fact, it emerged from the record that no evidence was adduced by JDIL in support of its plea of the absence of jurisdiction under Section 16. JDIL having taken the plea of absence of jurisdiction was required to establish the grounds on which it set about to establish its plea.50. Based on the above discussion, the interim award of the first Arbitral Tribunal stands vitiated because of:(i) The failure of the arbitral tribunal to decide upon the application for discovery and inspection filed by ONGC;(ii) The failure of the arbitral tribunal to determine the legal foundation for the application of the group of companies doctrine; and(iii) The decision of the arbitral tribunal that it would decide upon the applications filed by ONGC only after the plea of jurisdiction was disposed of.
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Commissioner of Income Tax, Madras Vs. C. G. Krishnaswami Naidu | SARKAR J.1. The respondent, the assessee, entered into financing agree ments with one Krishna Ayyar and from those agreements an income of Rs. 1, 24, 004 became due and receivable by him in the accounting year end ing January 31, 1946, which was the previous year for the assessment year 1946-47. These financing agreements were in respect of certain works of construction to be carried out by Krishna Ayyar under contracts with the Government of India in certain places within the Indian State of Mysore as it was then constituted. The assessee, who ordinarily resided in British India, contended in his assessment for the year 1946-47 that the aforesaid income accrued and arose to him in the Indian State of Mysore but had not been remitted into British India and, accordingly, that it was exempt from income-tax under section 14(2)(c) of the Income-tax Act as it then stood. The taxing authorities and the Tribunal held that the income had accrued in British India and was not, therefore, exempt. With the reasons for this view we shall not be concerned in this appeal At the request of the assessee the Appellate Tribunal referred the following question to the High Court of Madras under section 66(1) of the Income-tax Act" Whether the aforesaid commission of Rs. 1, 24, 004 referred to in paragraph 7 supra is income that accrued or arose to the assessee in British India within the meaning of section 4(1)(b)(i) of the Indian Income-tax Act ? "2. The High Court answered the question in the negative holding that the right to receive the income accrued to the assessee in the Mysore State and not in British India. The present appeal is against this judgment3. The relevant portion of section 4(1) of the Act is in these termsSubject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which--(b) if such person is resident in British India during such year, --(i) accrue or arise or are deemed to accrue or arise to him in British India during such year, or(ii) accrue or arise to him without British India during such year. . ."4. It will be seen that under this section since the assessee is a resident of British India, income accruing to him outside the territories of British India would, subject to the other provisions of the Act, also be included in his total income and, therefore, be taxable under section 3 of the Act. The question as framed is confined to the point whether the income arose in British India. Such a question is clearly idle because under section 4(1)(b)(ii), as already stated, in spite of the income not accruing in British India, the assessee might be liable in respect of it. The real question is, and on this point the parties are agreed, whether the income arose in the Indian State of Mysore as it was constituted at the relevant time and that is why the claim to exemption was, as has already been seen, actually made by the assessee under section 14(2)(c) of the Act as it then stood. That provision was in these terms" The tax shall not be payable by an assessee--(c) in respect of any income, profits or gains accruing or arising to him within an Indian State unless such income, profits or gains are received or deemed to be received in or brought into British India in the previous year by or on behalf of the assessee . . ."5. The assessee would under this provision be entitled to exemption if it is found that the income arose in the State of Mysore. The High Court no doubt held that the income so arose. But that was not the question which had been referred to it and admittedly it had no power to decide a question not referred to itAt the hearing before us the parties realised the difficulty that arose from the misconception of the real question that needed an answer. They, therefore, agreed that an order be passed by us setting aside the judgment of the High Court, framing the following questions and sending them back to the High Court for its decision" 1. Whether the whole or any part of the assessees income of Rs. 1, 24, 004 referred to in paragraph 7 of the Tribunals statement of case accrued or arose to the assessee in the State of Mysore (as it was before 1950) and exempt from tax for the assessment year 1946-47 under section 14(2)(c) of the Indian Income-tax Act, 1922 ?2. If only part of such income accrued or arose to the assessee in the State of Mysore, what is the quantum thereof ? " | 1[ds]5. The assessee would under this provision be entitled to exemption if it is found that the income arose in the State of Mysore. The High Court no doubt held that the income so arose. But that was not the question which had been referred to it and admittedly it had no power to decide a question not referred to itAt the hearing before us the parties realised the difficulty that arose from the misconception of the real question that needed an answer. They, therefore, agreed that an order be passed by us setting aside the judgment of the High Court, framing the following questions and sending them back to the High Court for its decision" 1. Whether the whole or any part of the assessees income of Rs. 1, 24, 004 referred to in paragraph 7 of the Tribunals statement of case accrued or arose to the assessee in the State of Mysore (as it was before 1950) and exempt from tax for the assessment yearunder section 14(2)(c) of thex Act, 1922 ?2. If only part of such income accrued or arose to the assessee in the State of Mysore, what is the quantum thereof ? " | 1 | 924 | 226 | ### 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:
SARKAR J.1. The respondent, the assessee, entered into financing agree ments with one Krishna Ayyar and from those agreements an income of Rs. 1, 24, 004 became due and receivable by him in the accounting year end ing January 31, 1946, which was the previous year for the assessment year 1946-47. These financing agreements were in respect of certain works of construction to be carried out by Krishna Ayyar under contracts with the Government of India in certain places within the Indian State of Mysore as it was then constituted. The assessee, who ordinarily resided in British India, contended in his assessment for the year 1946-47 that the aforesaid income accrued and arose to him in the Indian State of Mysore but had not been remitted into British India and, accordingly, that it was exempt from income-tax under section 14(2)(c) of the Income-tax Act as it then stood. The taxing authorities and the Tribunal held that the income had accrued in British India and was not, therefore, exempt. With the reasons for this view we shall not be concerned in this appeal At the request of the assessee the Appellate Tribunal referred the following question to the High Court of Madras under section 66(1) of the Income-tax Act" Whether the aforesaid commission of Rs. 1, 24, 004 referred to in paragraph 7 supra is income that accrued or arose to the assessee in British India within the meaning of section 4(1)(b)(i) of the Indian Income-tax Act ? "2. The High Court answered the question in the negative holding that the right to receive the income accrued to the assessee in the Mysore State and not in British India. The present appeal is against this judgment3. The relevant portion of section 4(1) of the Act is in these termsSubject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which--(b) if such person is resident in British India during such year, --(i) accrue or arise or are deemed to accrue or arise to him in British India during such year, or(ii) accrue or arise to him without British India during such year. . ."4. It will be seen that under this section since the assessee is a resident of British India, income accruing to him outside the territories of British India would, subject to the other provisions of the Act, also be included in his total income and, therefore, be taxable under section 3 of the Act. The question as framed is confined to the point whether the income arose in British India. Such a question is clearly idle because under section 4(1)(b)(ii), as already stated, in spite of the income not accruing in British India, the assessee might be liable in respect of it. The real question is, and on this point the parties are agreed, whether the income arose in the Indian State of Mysore as it was constituted at the relevant time and that is why the claim to exemption was, as has already been seen, actually made by the assessee under section 14(2)(c) of the Act as it then stood. That provision was in these terms" The tax shall not be payable by an assessee--(c) in respect of any income, profits or gains accruing or arising to him within an Indian State unless such income, profits or gains are received or deemed to be received in or brought into British India in the previous year by or on behalf of the assessee . . ."5. The assessee would under this provision be entitled to exemption if it is found that the income arose in the State of Mysore. The High Court no doubt held that the income so arose. But that was not the question which had been referred to it and admittedly it had no power to decide a question not referred to itAt the hearing before us the parties realised the difficulty that arose from the misconception of the real question that needed an answer. They, therefore, agreed that an order be passed by us setting aside the judgment of the High Court, framing the following questions and sending them back to the High Court for its decision" 1. Whether the whole or any part of the assessees income of Rs. 1, 24, 004 referred to in paragraph 7 of the Tribunals statement of case accrued or arose to the assessee in the State of Mysore (as it was before 1950) and exempt from tax for the assessment year 1946-47 under section 14(2)(c) of the Indian Income-tax Act, 1922 ?2. If only part of such income accrued or arose to the assessee in the State of Mysore, what is the quantum thereof ? "
### Response:
1
### Explanation:
5. The assessee would under this provision be entitled to exemption if it is found that the income arose in the State of Mysore. The High Court no doubt held that the income so arose. But that was not the question which had been referred to it and admittedly it had no power to decide a question not referred to itAt the hearing before us the parties realised the difficulty that arose from the misconception of the real question that needed an answer. They, therefore, agreed that an order be passed by us setting aside the judgment of the High Court, framing the following questions and sending them back to the High Court for its decision" 1. Whether the whole or any part of the assessees income of Rs. 1, 24, 004 referred to in paragraph 7 of the Tribunals statement of case accrued or arose to the assessee in the State of Mysore (as it was before 1950) and exempt from tax for the assessment yearunder section 14(2)(c) of thex Act, 1922 ?2. If only part of such income accrued or arose to the assessee in the State of Mysore, what is the quantum thereof ? "
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JAGJIWAN COOP. GROUP HOUSING SOCIETY LTD. & ORS Vs. LT. GOVERNOR, N.C.T. OF DELHI | ARUN MISHRA, J. 1. The appeals have been filed against the impugned judgment and order dated 3.2.2005 passed by a Division Bench of the High Court of Delhi. The case pertains to land acquisition proceedings initiated by way of issuance of notification under section 4 of the Land Acquisition Act, 1894 (the Act). It was proposed to acquire the land for Vasant Kunj residential scheme. Enquiry under section 5A was dispensed with as section 17(1) was invoked. The society filed a representation for withdrawal of the notification and thereafter filed a writ petition on 6.12.1999. The society claimed the ownership of the land admeasuring 42 bighas 16 biswas situated in village Mehrauli, New Delhi. The Government of India has policy to ensure shelter to the citizens and cooperative sector is to be given preference for allotting housing sites to encourage housing. The appellant¬society was not under liquidation at the time of issuance of the notification. On 29.9.2000 the declaration under section 6 of the Act was issued. The High Court allowed the writ petition in part, maintaining the notification dated 11.11.1999 under section 4 of the Act and quashed the same with respect to invoking the provision of section 17(4) of the Act. 2. The appeals were earlier heard by a Division Bench of this Court and decided vide order dated 26.2.2015. At the time of hearing of the appeal, it was submitted that in view of the provisions contained in section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (the 2013 Act). The acquisition has lapsed. This Court disposed of the appeals and permitted the landholders to initiate appropriate proceedings before the proper forum/court claiming the benefit of section 4 of the 2013 Act, and in case orders under section 24 of the 2013 Act are adverse to their interest, they may apply for reviving the appeal within 90 days of the passing of the order. 3. It is submitted in the Miscellaneous Applications which have been filed for revival of the appeals that the writ petition was filed in the High Court of Delhi. The writ petitions were allowed by the High Court. However, the D.D.A. has challenged the judgment and order passed by the High Court in the civil appeals. Appels have been allowed vide judgment and order dated 16.2.2018 hence the applications have been filed for revival of the appeals. 4. We have revived the appeals and heard them on merits. Shri Maninder Singh, learned senior counsel appearing on behalf of the appellants, urged that the need of the Cooperative Housing Society is for housing and the Government may be directed to release the land to the appellants. He has further submitted that the area is no more required and as per the policy of the Government, land should be de¬ notified. Learned counsel appearing for the respondents has pointed out that the prayer for de-notifying the land has already been rejected and there is no question of de-notification of the acquired land. Correct facts have not been placed before this Court. 5. We find that no case for interference is made out in the appeals filed at the instance of the appellants. There is no rhyme or reason to direct de-notification of the land and a prayer in that regard has already been rejected by the appropriate Government. Merely by the fact that one of the appellants is Cooperative Society, the complexion of the case does not change and this fact was duly taken note of at the time of land acquisition under the Act. Thus, no advantage can be derived from the policy of the State Government, the land acquisition could not be said to be illegal in any manner. There is no room for making indulgence to quash the land acquisition proceedings. | 0[ds]5. We find that no case for interference is made out in the appeals filed at the instance of the appellants. There is no rhyme or reason to direct de-notification of the land and a prayer in that regard has already been rejected by the appropriate Government. Merely by the fact that one of the appellants is Cooperative Society, the complexion of the case does not change and this fact was duly taken note of at the time of land acquisition under the Act. Thus, no advantage can be derived from the policy of the State Government, the land acquisition could not be said to be illegal in any manner. There is no room for making indulgence to quash the land acquisition proceedings. | 0 | 701 | 136 | ### 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:
ARUN MISHRA, J. 1. The appeals have been filed against the impugned judgment and order dated 3.2.2005 passed by a Division Bench of the High Court of Delhi. The case pertains to land acquisition proceedings initiated by way of issuance of notification under section 4 of the Land Acquisition Act, 1894 (the Act). It was proposed to acquire the land for Vasant Kunj residential scheme. Enquiry under section 5A was dispensed with as section 17(1) was invoked. The society filed a representation for withdrawal of the notification and thereafter filed a writ petition on 6.12.1999. The society claimed the ownership of the land admeasuring 42 bighas 16 biswas situated in village Mehrauli, New Delhi. The Government of India has policy to ensure shelter to the citizens and cooperative sector is to be given preference for allotting housing sites to encourage housing. The appellant¬society was not under liquidation at the time of issuance of the notification. On 29.9.2000 the declaration under section 6 of the Act was issued. The High Court allowed the writ petition in part, maintaining the notification dated 11.11.1999 under section 4 of the Act and quashed the same with respect to invoking the provision of section 17(4) of the Act. 2. The appeals were earlier heard by a Division Bench of this Court and decided vide order dated 26.2.2015. At the time of hearing of the appeal, it was submitted that in view of the provisions contained in section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (the 2013 Act). The acquisition has lapsed. This Court disposed of the appeals and permitted the landholders to initiate appropriate proceedings before the proper forum/court claiming the benefit of section 4 of the 2013 Act, and in case orders under section 24 of the 2013 Act are adverse to their interest, they may apply for reviving the appeal within 90 days of the passing of the order. 3. It is submitted in the Miscellaneous Applications which have been filed for revival of the appeals that the writ petition was filed in the High Court of Delhi. The writ petitions were allowed by the High Court. However, the D.D.A. has challenged the judgment and order passed by the High Court in the civil appeals. Appels have been allowed vide judgment and order dated 16.2.2018 hence the applications have been filed for revival of the appeals. 4. We have revived the appeals and heard them on merits. Shri Maninder Singh, learned senior counsel appearing on behalf of the appellants, urged that the need of the Cooperative Housing Society is for housing and the Government may be directed to release the land to the appellants. He has further submitted that the area is no more required and as per the policy of the Government, land should be de¬ notified. Learned counsel appearing for the respondents has pointed out that the prayer for de-notifying the land has already been rejected and there is no question of de-notification of the acquired land. Correct facts have not been placed before this Court. 5. We find that no case for interference is made out in the appeals filed at the instance of the appellants. There is no rhyme or reason to direct de-notification of the land and a prayer in that regard has already been rejected by the appropriate Government. Merely by the fact that one of the appellants is Cooperative Society, the complexion of the case does not change and this fact was duly taken note of at the time of land acquisition under the Act. Thus, no advantage can be derived from the policy of the State Government, the land acquisition could not be said to be illegal in any manner. There is no room for making indulgence to quash the land acquisition proceedings.
### Response:
0
### Explanation:
5. We find that no case for interference is made out in the appeals filed at the instance of the appellants. There is no rhyme or reason to direct de-notification of the land and a prayer in that regard has already been rejected by the appropriate Government. Merely by the fact that one of the appellants is Cooperative Society, the complexion of the case does not change and this fact was duly taken note of at the time of land acquisition under the Act. Thus, no advantage can be derived from the policy of the State Government, the land acquisition could not be said to be illegal in any manner. There is no room for making indulgence to quash the land acquisition proceedings.
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Commercial Tax-Officer, Bangalore, Etc. Etc Vs. Sri Venkateswara Oil Mills & Anr. Etc. Etc | principal Act by this Act had not been made, then, notwithstanding anything contained in Section 9 or the said amendments, the dealer shall not be liable to pay any tax under the principal Act, as amended by this Act, in respect of such sale or such part of the turnover relating to such sale."Sub-section (2) of S. 10 provided:"For the purposes of sub-sec. (1) the burden of proving that no tax was collected under the principal Act in respect of any sale referred to in sub-section (1) or in respect of any portion of the turnover relating to such sale shall be on the dealer effecting such sale."4. That Ordinance was replaced by the Central Sales Tax (Amendment) Act, 1969. After the amendment came into force several Sales Tax Officers who had earlier assessed the assessees in accordance with the decision in Yadalam Lakshminarasimhiah Settys case 16 STC 231 = (AIR 1965 SC 1510 ) issued notices to those assessees proposing to rectify their assessments on the ground that the earlier assessments suffered from mistakes apparent on the record. The respondents in these appeals resisted those notices on the ground that they had no competence to reopen the assessment. The Sales-tax Officers rejected that contention. Thereafter the respondents in these appeals challenged the orders made by the Sales-tax Officers before the High Court of Mysore by means of petitions under Art 226 of the Constitution on two grounds viz. (l) that the Sales-tax Officer had no jurisdiction to reopen the assessment as there was no mistake apparent on the record and (2) that the said Officer was in error in coming to the conclusion that the assessee had collected tax on the turnover which was earlier considered as exempted. The High Court accepted the first of the two afore-mentioned contentions viz. that the Sales Tax Officer had no jurisdiction to reassess the assessees as it was impermissible for him to receive any additional evidence with a view to decide the question whether the assessees had collected sales tax on the turnovers in question and consequently he could not take any assistance from Rule 38 of the Mysore Sales Tax Rules, 1957.5. Before proceeding to examine the question of law arising for decision, it is necessary to note that in all the cases before us except in one, which will be dealt with separately, we are told that the assessees had been given opportunity to show that they had not collected sales tax in respect of the turnover with which they were concerned, but according to the Officers concerned, the assessees had failed to discharge their burden. The finding of the assessing officers on this point is a finding of fact and was not open to review by the High Court in petitions under Art. 226 of the Constitution.6. Rule 38 of the Mysore Sales Tax Rules, 1957 empowers the assessing, appellate or revising authority or the Appellate Tribunal at any time within five years from the date of any order passed by it to rectify any mistake apparent on the record.7. The High Court opined, in our opinion rightly, that in order to attract the power to rectify it is not sufficient, if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent on the record. It is well settled that if a subsequent legislation is given retrospective effect and is deemed to have been in force at the time when the order to be rectified was made then the law to be applied is the amended law -see M. K. Venkatachalam, Income-tax Officer v. Bombay Dyeing and Manufacturing Co. Ltd., 34 1TR 143 = (AIR l958 SC 875).In other words for finding out whether there is a mistake apparent on the record, the authority has to look to the amended law and not to the law that was in force at the time the original order was made. The High Court had accepted this principle but it proceeded to rule that for finding out whether there was a mistake apparent on the record or not, it is not permissible for the Sales Tax Officer to take any evidence whatsoever as the mistake to be rectified must be apparent on the record. On that premises it held that because it is not permissible for the assessee to adduce additional evidence to show that they have not collected tax, it is not open to the assessing authorities to reopen the assessments. This approach is neither logical nor sound in law. Section 10 of the Amendment Act mitigates the rigor of the amendment made to S. 6 of the Principal Act. But for S. 10 of the Amendment Act, every dealer would have had to pay tax on the turnovers in question whether he had collected tax or not. If the impact of S. 10 is ignored, as the High Court has done, then the assessments in question are liable to be re-opened whether the assessees had collected the tax or not. The assessees cannot have the benefit of S. 10 (l) and not the burden of proof placed on them under S. 10 (2).If the reasoning of the High Court is correct then it is the assessees who will be deprived of the benefit of S. 10 (l) of the Amendment Act because there could not have been any finding in the original assessment orders that the assessees had not collected tax. The legislative intention is clear and beyond doubt. The law gives a further opportunity to the assessees whose assessments are sought to be reopened to satisfy the assessing authorities that they had not collected tax in respect of the turnovers in question. Rule 38 of the Mysore Sales Tax Rules must be read with S. l0 of the Amendment Act. If so read, it is clear that the assessing authorities before re-assessing the dealers should afford them reasonable opportunity to satisfy them that they have not collected tax. | 1[ds]7. The High Court opined, in our opinion rightly, that in order to attract the power to rectify it is not sufficient, if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent on the record. It is well settled that if a subsequent legislation is given retrospective effect and is deemed to have been in force at the time when the order to be rectified was made then the law to be applied is the amended law -see M. K. Venkatachalam, Income-tax Officer v. Bombay Dyeing and Manufacturing Co. Ltd., 34 1TR 143 = (AIR l958 SC 875).In other words for finding out whether there is a mistake apparent on the record, the authority has to look to the amended law and not to the law that was in force at the time the original order was made. The High Court had accepted this principle but it proceeded to rule that for finding out whether there was a mistake apparent on the record or not, it is not permissible for the Sales Tax Officer to take any evidence whatsoever as the mistake to be rectified must be apparent on the record. On that premises it held that because it is not permissible for the assessee to adduce additional evidence to show that they have not collected tax, it is not open to the assessing authorities to reopen the assessments. This approach is neither logical nor sound in law. Section 10 of the Amendment Act mitigates the rigor of the amendment made to S. 6 of the Principal Act. But for S. 10 of the Amendment Act, every dealer would have had to pay tax on the turnovers in question whether he had collected tax or not. If the impact of S. 10 is ignored, as the High Court has done, then the assessments in question are liable to be re-opened whether the assessees had collected the tax or not. The assessees cannot have the benefit of S. 10 (l) and not the burden of proof placed on them under S. 10 (2).If the reasoning of the High Court is correct then it is the assessees who will be deprived of the benefit of S. 10 (l) of the Amendment Act because there could not have been any finding in the original assessment orders that the assessees had not collected tax. The legislative intention is clear and beyond doubt. The law gives a further opportunity to the assessees whose assessments are sought to be reopened to satisfy the assessing authorities that they had not collected tax in respect of the turnovers in question. Rule 38 of the Mysore Sales Tax Rules must be read with S. l0 of the Amendment Act. If so read, it is clear that the assessing authorities before re-assessing the dealers should afford them reasonable opportunity to satisfy them that they have not collected tax. | 1 | 1,541 | 532 | ### 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:
principal Act by this Act had not been made, then, notwithstanding anything contained in Section 9 or the said amendments, the dealer shall not be liable to pay any tax under the principal Act, as amended by this Act, in respect of such sale or such part of the turnover relating to such sale."Sub-section (2) of S. 10 provided:"For the purposes of sub-sec. (1) the burden of proving that no tax was collected under the principal Act in respect of any sale referred to in sub-section (1) or in respect of any portion of the turnover relating to such sale shall be on the dealer effecting such sale."4. That Ordinance was replaced by the Central Sales Tax (Amendment) Act, 1969. After the amendment came into force several Sales Tax Officers who had earlier assessed the assessees in accordance with the decision in Yadalam Lakshminarasimhiah Settys case 16 STC 231 = (AIR 1965 SC 1510 ) issued notices to those assessees proposing to rectify their assessments on the ground that the earlier assessments suffered from mistakes apparent on the record. The respondents in these appeals resisted those notices on the ground that they had no competence to reopen the assessment. The Sales-tax Officers rejected that contention. Thereafter the respondents in these appeals challenged the orders made by the Sales-tax Officers before the High Court of Mysore by means of petitions under Art 226 of the Constitution on two grounds viz. (l) that the Sales-tax Officer had no jurisdiction to reopen the assessment as there was no mistake apparent on the record and (2) that the said Officer was in error in coming to the conclusion that the assessee had collected tax on the turnover which was earlier considered as exempted. The High Court accepted the first of the two afore-mentioned contentions viz. that the Sales Tax Officer had no jurisdiction to reassess the assessees as it was impermissible for him to receive any additional evidence with a view to decide the question whether the assessees had collected sales tax on the turnovers in question and consequently he could not take any assistance from Rule 38 of the Mysore Sales Tax Rules, 1957.5. Before proceeding to examine the question of law arising for decision, it is necessary to note that in all the cases before us except in one, which will be dealt with separately, we are told that the assessees had been given opportunity to show that they had not collected sales tax in respect of the turnover with which they were concerned, but according to the Officers concerned, the assessees had failed to discharge their burden. The finding of the assessing officers on this point is a finding of fact and was not open to review by the High Court in petitions under Art. 226 of the Constitution.6. Rule 38 of the Mysore Sales Tax Rules, 1957 empowers the assessing, appellate or revising authority or the Appellate Tribunal at any time within five years from the date of any order passed by it to rectify any mistake apparent on the record.7. The High Court opined, in our opinion rightly, that in order to attract the power to rectify it is not sufficient, if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent on the record. It is well settled that if a subsequent legislation is given retrospective effect and is deemed to have been in force at the time when the order to be rectified was made then the law to be applied is the amended law -see M. K. Venkatachalam, Income-tax Officer v. Bombay Dyeing and Manufacturing Co. Ltd., 34 1TR 143 = (AIR l958 SC 875).In other words for finding out whether there is a mistake apparent on the record, the authority has to look to the amended law and not to the law that was in force at the time the original order was made. The High Court had accepted this principle but it proceeded to rule that for finding out whether there was a mistake apparent on the record or not, it is not permissible for the Sales Tax Officer to take any evidence whatsoever as the mistake to be rectified must be apparent on the record. On that premises it held that because it is not permissible for the assessee to adduce additional evidence to show that they have not collected tax, it is not open to the assessing authorities to reopen the assessments. This approach is neither logical nor sound in law. Section 10 of the Amendment Act mitigates the rigor of the amendment made to S. 6 of the Principal Act. But for S. 10 of the Amendment Act, every dealer would have had to pay tax on the turnovers in question whether he had collected tax or not. If the impact of S. 10 is ignored, as the High Court has done, then the assessments in question are liable to be re-opened whether the assessees had collected the tax or not. The assessees cannot have the benefit of S. 10 (l) and not the burden of proof placed on them under S. 10 (2).If the reasoning of the High Court is correct then it is the assessees who will be deprived of the benefit of S. 10 (l) of the Amendment Act because there could not have been any finding in the original assessment orders that the assessees had not collected tax. The legislative intention is clear and beyond doubt. The law gives a further opportunity to the assessees whose assessments are sought to be reopened to satisfy the assessing authorities that they had not collected tax in respect of the turnovers in question. Rule 38 of the Mysore Sales Tax Rules must be read with S. l0 of the Amendment Act. If so read, it is clear that the assessing authorities before re-assessing the dealers should afford them reasonable opportunity to satisfy them that they have not collected tax.
### Response:
1
### Explanation:
7. The High Court opined, in our opinion rightly, that in order to attract the power to rectify it is not sufficient, if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent on the record. It is well settled that if a subsequent legislation is given retrospective effect and is deemed to have been in force at the time when the order to be rectified was made then the law to be applied is the amended law -see M. K. Venkatachalam, Income-tax Officer v. Bombay Dyeing and Manufacturing Co. Ltd., 34 1TR 143 = (AIR l958 SC 875).In other words for finding out whether there is a mistake apparent on the record, the authority has to look to the amended law and not to the law that was in force at the time the original order was made. The High Court had accepted this principle but it proceeded to rule that for finding out whether there was a mistake apparent on the record or not, it is not permissible for the Sales Tax Officer to take any evidence whatsoever as the mistake to be rectified must be apparent on the record. On that premises it held that because it is not permissible for the assessee to adduce additional evidence to show that they have not collected tax, it is not open to the assessing authorities to reopen the assessments. This approach is neither logical nor sound in law. Section 10 of the Amendment Act mitigates the rigor of the amendment made to S. 6 of the Principal Act. But for S. 10 of the Amendment Act, every dealer would have had to pay tax on the turnovers in question whether he had collected tax or not. If the impact of S. 10 is ignored, as the High Court has done, then the assessments in question are liable to be re-opened whether the assessees had collected the tax or not. The assessees cannot have the benefit of S. 10 (l) and not the burden of proof placed on them under S. 10 (2).If the reasoning of the High Court is correct then it is the assessees who will be deprived of the benefit of S. 10 (l) of the Amendment Act because there could not have been any finding in the original assessment orders that the assessees had not collected tax. The legislative intention is clear and beyond doubt. The law gives a further opportunity to the assessees whose assessments are sought to be reopened to satisfy the assessing authorities that they had not collected tax in respect of the turnovers in question. Rule 38 of the Mysore Sales Tax Rules must be read with S. l0 of the Amendment Act. If so read, it is clear that the assessing authorities before re-assessing the dealers should afford them reasonable opportunity to satisfy them that they have not collected tax.
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Commissioner of Income Tax, M.P Vs. Seth Govindram Sugar Mills | firm, but it may, through its karta enter into a valid partnership with a stranger or with the karta of another family. This Court in Kshetra Mohan Sanyasi Charan Sadhukhan v. Commr. of Excess Profits Tax, West Bengal, (1953) 24 ITR 488 : (AIR 1953 SC 516 ), pointed out that when two kartas of different families constituted a partnership the other members of the families did not become partners, though the kartas might be accountable to them.12. The question, therefore, is whether after the death of Nandlal the representatives of the two families constituted a new partnership and carried on the business of the Sugar Mills. Admittedly no fresh partnership deed was executed between Banarsibai, acting as the guardian of the minors in Nandlals branch of the family and Bachhulal. It is not disputed that partnership between the representatives of two families can be inferred from conduct. Doubtless the accounts produced before the Income-tax authorities disclosed that Bachhulal was carrying on the business of "Seth Govindram Sugar Mills Ltd." in the same manner as it was conducted before the death of Nandlal. Therein Kalooram Govindram and Gangaprasad Bachhulal were shown as partners, Govindram having 10 annas share and Bachhulal having 6 annas share. There were separate current accounts for the two parties. The Appellate Assistant Commissioner, who examined the accounts with care, gave the following details from the accounts as on November 1, 1948;Joint capital account of Kalooram Govindram and Gangaprasad Bachhulal in the ratio of 10 : 6. Credit balance ... 10,78,666/-Current Accounts :-Gangaprasad Bachhulal " ... 10,46,797/-Kalooram Govindram " ... 8,30,348/-Profit and loss Account. Debit balance ... 14,01,669/-13. No profit or loss was adjusted to the current account of the parties. Thereafter the accounts were closed as on 31st March, 1950, when the capital account was squared up by transferring that much loss from the profit and loss account and balance in the profit and loss account was transferred in the ratio of 10 : 6 to the current accounts of the two parties.14. Thus the profit and loss account showed:-Net debit balance including current years loss - 17,51,992/-Loss set off against capital account - 10,78,666/-Rs. 6,73,326/-Transferred to partners accounts:-Messrs. Kalooram Govindram 4,20,829/-Messrs. Gangaprasad Bachhulal 2,52,497/- 6,73,326/-Balance NilThe accounts only establish that Bachhulal was doing the business of Govindram Sugar Mills Ltd. But Banarsibais name was not found in the accounts. If she was a partner, her name should have found a place in the accounts. Not a single document has been produced on behalf of the assessee which supports the assertion that Banarsibai acted as a partner or was treated by the customers of the firm as a partner. There is not a title of evidence of conduct of Bachhulal, Banarsibai or even of third parties who had dealings with the firm to sustain the plea that Banarsibai was a partner of the firm. Indeed, the conduct of the parties was inconsistent with any such partnership between Banarsibai and Bachhulal. After the death of Nandlal Banarsibai and Shantibai applied to Jaora District Court for the appointment of guardians to look after the properties and the persons of the two minors: and on January 21, 1946, four persons other than these two widows were appointed as guardians of the minors. If Banarsibai was acting as a guardian of the minors representing the family in the business she would not have applied for the appointment of others as guardians. On October 4, 1952, a partnership deed was drawn up between Bachhulal on the one hand and the minors represented by the said four guardians on the other. If Banarsibai was the representative of the family in the business, this document would not have come into being. Banarsibai also had no place in another partnership deed which was executed on March 27, 1953, between Venkatlal represented by the aforesaid guardians and Bachhulal. The evidence, therefore, demonstrates beyond any reasonable doubt that Banarsibai was nowhere in the picture and that Bachhulal carried on the business of the Sugar Mills on behalf of the two families. Nor is there any evidence to show that from 1943 till the assessment year the guardians of the minors appointed by the District and Sessions Judge, Jaora, in 1946 representing the minors entered into a partnership with Bachhulal. The partnership deeds of 1952 and 1953 were subsequent to the order of assessment and they contain only self-serving statements and they cannot, in the absence of any evidence, sustain the plea of earlier partnership. Indeed, the guardians were only appointed for the properties situated within the jurisdiction of the District Judge, Jaora, and they could not act as guardians in respect of the properties outside the said jurisdiction. If they were acting as partners with Bachhulal their names would have been mentioned either in the accounts or in the relevant documents pertaining to the business. The conflicting version given by the assessee in regard to person or persons who actually represented the family in the partnership in itself indicates the falsity of the present version. It must, therefore, be held that the Court guardians did not enter into a partnership with Bachhulal.15. But, Venkatlal because a major on December 13, 1949, i.e., during the accounting year 1949-50. On October 17, 1951, an application for registration was received by the Income-tax Officer signed by Venkatlal and Bachhulal who are shown as partners representing their respective joint families. The return of income submitted along with the application for registration was signed by Venkatlal on August 29, 1951. After Venkatlal became a major, there was no obstacle in his representing his branch of the family in the partnership. Indeed, it was conceded in the High Court that there was a partnership from December 13, 1949, when Venkatlal attained majority. Having regard to the said circumstances and the concession. We must hold that from December 13, 1949, the business was carried on in partnership between Venkatlal, representing his branch of the family, and Bachhulal, representing his branch of the family. | 0[ds]The accounts only establish that Bachhulal was doing the business of Govindram Sugar Mills Ltd. But Banarsibais name was not found in the accounts. If she was a partner, her name should have found a place in the accounts. Not a single document has been produced on behalf of the assessee which supports the assertion that Banarsibai acted as a partner or was treated by the customers of the firm as a partner. There is not a title of evidence of conduct of Bachhulal, Banarsibai or even of third parties who had dealings with the firm to sustain the plea that Banarsibai was a partner of the firm. Indeed, the conduct of the parties was inconsistent with any such partnership between Banarsibai and Bachhulal. After the death of Nandlal Banarsibai and Shantibai applied to Jaora District Court for the appointment of guardians to look after the properties and the persons of the two minors: and on January 21, 1946, four persons other than these two widows were appointed as guardians of the minors. If Banarsibai was acting as a guardian of the minors representing the family in the business she would not have applied for the appointment of others as guardians. On October 4, 1952, a partnership deed was drawn up between Bachhulal on the one hand and the minors represented by the said four guardians on the other. If Banarsibai was the representative of the family in the business, this document would not have come into being. Banarsibai also had no place in another partnership deed which was executed on March 27, 1953, between Venkatlal represented by the aforesaid guardians and Bachhulal. The evidence, therefore, demonstrates beyond any reasonable doubt that Banarsibai was nowhere in the picture and that Bachhulal carried on the business of the Sugar Mills on behalf of the two families. Nor is there any evidence to show that from 1943 till the assessment year the guardians of the minors appointed by the District and Sessions Judge, Jaora, in 1946 representing the minors entered into a partnership with Bachhulal. The partnership deeds of 1952 and 1953 were subsequent to the order of assessment and they contain only self-serving statements and they cannot, in the absence of any evidence, sustain the plea of earlier partnership. Indeed, the guardians were only appointed for the properties situated within the jurisdiction of the District Judge, Jaora, and they could not act as guardians in respect of the properties outside the said jurisdiction. If they were acting as partners with Bachhulal their names would have been mentioned either in the accounts or in the relevant documents pertaining to the business. The conflicting version given by the assessee in regard to person or persons who actually represented the family in the partnership in itself indicates the falsity of the present version. It must, therefore, be held that the Court guardians did not enter into a partnership with Bachhulal.15. But, Venkatlal because a major on December 13, 1949, i.e., during the accounting year 1949-50. On October 17, 1951, an application for registration was received by the Income-tax Officer signed by Venkatlal and Bachhulal who are shown as partners representing their respective joint families. The return of income submitted along with the application for registration was signed by Venkatlal on August 29, 1951. After Venkatlal became a major, there was no obstacle in his representing his branch of the family in the partnership. Indeed, it was conceded in the High Court that there was a partnership from December 13, 1949, when Venkatlal attained majority. Having regard to the said circumstances and the concession. We must hold that from December 13, 1949, the business was carried on in partnership between Venkatlal, representing his branch of the family, and Bachhulal, representing his branch of the family. | 0 | 4,401 | 698 | ### 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:
firm, but it may, through its karta enter into a valid partnership with a stranger or with the karta of another family. This Court in Kshetra Mohan Sanyasi Charan Sadhukhan v. Commr. of Excess Profits Tax, West Bengal, (1953) 24 ITR 488 : (AIR 1953 SC 516 ), pointed out that when two kartas of different families constituted a partnership the other members of the families did not become partners, though the kartas might be accountable to them.12. The question, therefore, is whether after the death of Nandlal the representatives of the two families constituted a new partnership and carried on the business of the Sugar Mills. Admittedly no fresh partnership deed was executed between Banarsibai, acting as the guardian of the minors in Nandlals branch of the family and Bachhulal. It is not disputed that partnership between the representatives of two families can be inferred from conduct. Doubtless the accounts produced before the Income-tax authorities disclosed that Bachhulal was carrying on the business of "Seth Govindram Sugar Mills Ltd." in the same manner as it was conducted before the death of Nandlal. Therein Kalooram Govindram and Gangaprasad Bachhulal were shown as partners, Govindram having 10 annas share and Bachhulal having 6 annas share. There were separate current accounts for the two parties. The Appellate Assistant Commissioner, who examined the accounts with care, gave the following details from the accounts as on November 1, 1948;Joint capital account of Kalooram Govindram and Gangaprasad Bachhulal in the ratio of 10 : 6. Credit balance ... 10,78,666/-Current Accounts :-Gangaprasad Bachhulal " ... 10,46,797/-Kalooram Govindram " ... 8,30,348/-Profit and loss Account. Debit balance ... 14,01,669/-13. No profit or loss was adjusted to the current account of the parties. Thereafter the accounts were closed as on 31st March, 1950, when the capital account was squared up by transferring that much loss from the profit and loss account and balance in the profit and loss account was transferred in the ratio of 10 : 6 to the current accounts of the two parties.14. Thus the profit and loss account showed:-Net debit balance including current years loss - 17,51,992/-Loss set off against capital account - 10,78,666/-Rs. 6,73,326/-Transferred to partners accounts:-Messrs. Kalooram Govindram 4,20,829/-Messrs. Gangaprasad Bachhulal 2,52,497/- 6,73,326/-Balance NilThe accounts only establish that Bachhulal was doing the business of Govindram Sugar Mills Ltd. But Banarsibais name was not found in the accounts. If she was a partner, her name should have found a place in the accounts. Not a single document has been produced on behalf of the assessee which supports the assertion that Banarsibai acted as a partner or was treated by the customers of the firm as a partner. There is not a title of evidence of conduct of Bachhulal, Banarsibai or even of third parties who had dealings with the firm to sustain the plea that Banarsibai was a partner of the firm. Indeed, the conduct of the parties was inconsistent with any such partnership between Banarsibai and Bachhulal. After the death of Nandlal Banarsibai and Shantibai applied to Jaora District Court for the appointment of guardians to look after the properties and the persons of the two minors: and on January 21, 1946, four persons other than these two widows were appointed as guardians of the minors. If Banarsibai was acting as a guardian of the minors representing the family in the business she would not have applied for the appointment of others as guardians. On October 4, 1952, a partnership deed was drawn up between Bachhulal on the one hand and the minors represented by the said four guardians on the other. If Banarsibai was the representative of the family in the business, this document would not have come into being. Banarsibai also had no place in another partnership deed which was executed on March 27, 1953, between Venkatlal represented by the aforesaid guardians and Bachhulal. The evidence, therefore, demonstrates beyond any reasonable doubt that Banarsibai was nowhere in the picture and that Bachhulal carried on the business of the Sugar Mills on behalf of the two families. Nor is there any evidence to show that from 1943 till the assessment year the guardians of the minors appointed by the District and Sessions Judge, Jaora, in 1946 representing the minors entered into a partnership with Bachhulal. The partnership deeds of 1952 and 1953 were subsequent to the order of assessment and they contain only self-serving statements and they cannot, in the absence of any evidence, sustain the plea of earlier partnership. Indeed, the guardians were only appointed for the properties situated within the jurisdiction of the District Judge, Jaora, and they could not act as guardians in respect of the properties outside the said jurisdiction. If they were acting as partners with Bachhulal their names would have been mentioned either in the accounts or in the relevant documents pertaining to the business. The conflicting version given by the assessee in regard to person or persons who actually represented the family in the partnership in itself indicates the falsity of the present version. It must, therefore, be held that the Court guardians did not enter into a partnership with Bachhulal.15. But, Venkatlal because a major on December 13, 1949, i.e., during the accounting year 1949-50. On October 17, 1951, an application for registration was received by the Income-tax Officer signed by Venkatlal and Bachhulal who are shown as partners representing their respective joint families. The return of income submitted along with the application for registration was signed by Venkatlal on August 29, 1951. After Venkatlal became a major, there was no obstacle in his representing his branch of the family in the partnership. Indeed, it was conceded in the High Court that there was a partnership from December 13, 1949, when Venkatlal attained majority. Having regard to the said circumstances and the concession. We must hold that from December 13, 1949, the business was carried on in partnership between Venkatlal, representing his branch of the family, and Bachhulal, representing his branch of the family.
### Response:
0
### Explanation:
The accounts only establish that Bachhulal was doing the business of Govindram Sugar Mills Ltd. But Banarsibais name was not found in the accounts. If she was a partner, her name should have found a place in the accounts. Not a single document has been produced on behalf of the assessee which supports the assertion that Banarsibai acted as a partner or was treated by the customers of the firm as a partner. There is not a title of evidence of conduct of Bachhulal, Banarsibai or even of third parties who had dealings with the firm to sustain the plea that Banarsibai was a partner of the firm. Indeed, the conduct of the parties was inconsistent with any such partnership between Banarsibai and Bachhulal. After the death of Nandlal Banarsibai and Shantibai applied to Jaora District Court for the appointment of guardians to look after the properties and the persons of the two minors: and on January 21, 1946, four persons other than these two widows were appointed as guardians of the minors. If Banarsibai was acting as a guardian of the minors representing the family in the business she would not have applied for the appointment of others as guardians. On October 4, 1952, a partnership deed was drawn up between Bachhulal on the one hand and the minors represented by the said four guardians on the other. If Banarsibai was the representative of the family in the business, this document would not have come into being. Banarsibai also had no place in another partnership deed which was executed on March 27, 1953, between Venkatlal represented by the aforesaid guardians and Bachhulal. The evidence, therefore, demonstrates beyond any reasonable doubt that Banarsibai was nowhere in the picture and that Bachhulal carried on the business of the Sugar Mills on behalf of the two families. Nor is there any evidence to show that from 1943 till the assessment year the guardians of the minors appointed by the District and Sessions Judge, Jaora, in 1946 representing the minors entered into a partnership with Bachhulal. The partnership deeds of 1952 and 1953 were subsequent to the order of assessment and they contain only self-serving statements and they cannot, in the absence of any evidence, sustain the plea of earlier partnership. Indeed, the guardians were only appointed for the properties situated within the jurisdiction of the District Judge, Jaora, and they could not act as guardians in respect of the properties outside the said jurisdiction. If they were acting as partners with Bachhulal their names would have been mentioned either in the accounts or in the relevant documents pertaining to the business. The conflicting version given by the assessee in regard to person or persons who actually represented the family in the partnership in itself indicates the falsity of the present version. It must, therefore, be held that the Court guardians did not enter into a partnership with Bachhulal.15. But, Venkatlal because a major on December 13, 1949, i.e., during the accounting year 1949-50. On October 17, 1951, an application for registration was received by the Income-tax Officer signed by Venkatlal and Bachhulal who are shown as partners representing their respective joint families. The return of income submitted along with the application for registration was signed by Venkatlal on August 29, 1951. After Venkatlal became a major, there was no obstacle in his representing his branch of the family in the partnership. Indeed, it was conceded in the High Court that there was a partnership from December 13, 1949, when Venkatlal attained majority. Having regard to the said circumstances and the concession. We must hold that from December 13, 1949, the business was carried on in partnership between Venkatlal, representing his branch of the family, and Bachhulal, representing his branch of the family.
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V. Venugopala Varma Rajah Vs. Commissioner Of Income-Tax, Kerala | The Court observed that if income from the sale of coal from a coal-mine or stone won from a quarry or from the sale of paddy grown on land be regarded as income, but for the special exemption granted under the Income-tax Act, there is no logical reason for holding that income from sale of trees is not income liable to tax.12. In re, Ram Prasad, ILR 52 All 419 = (AIR 1930 All 389), a Division Bench of the Allahabad High Court held that receipt from sale of timber is income liable to be taxed and is not a capital receipt. The case arose under the Government Trading Taxation Act 3 of 1926.13. In Maharaja of Kapurthala v. Commr. of Income-tax, C. P. and U. P., (1945) 13 ITR 74 = (AIR 1945 Oudh 35), the Oudh Chief Court held that net receipt from the sale of forest trees is income liable to income-tax, even though the forest may be gradually exhausted by fellings. The Court further observed that income from the sale of forest trees of spontaneous growth growing on land which is assessed to land revenue is not agricultural income within the meaning of Sec. 2 (1) (a) of the Income-tax Act and is not exempt from income-tax under Sec. 4 (3) (viii) of the Act.14. In Kamakshya Narain Singh v. Commr. of Income-tax, Bihar and Orissa, (1946) 14 ITR 673 = (AIR 1947 Pat 115 ), a similar view was expressed by the Patna High Court.15. In Fringford Estates Ltd., Calicut v. Commr. of Income-tax, Madras, (1951) 20 ITR 585 = (AIR 1952 Mad 47 ), it was held that profits realised from the sale of timber were trade profits and were liable to income-tax. In that case the assessee Company formed with the object of purchasing, clearing and improving of estates and the cultivation and sale of tea, coffee etc., in such estates, purchased a tract of land part of which had already been cultivated with tea and the rest was a jungle capable of being cleared and made fit for plantation. The Company entered into an agreement with a timber merchant for clearing a part of the forest of all trees and for sale of the trees in the market. This was held to be a part of the business activity of the Company.16. The cases on the other side of the line are to be found in (1961) 41 ITR 313 (Bom) , in which a Division Bench of the Bombay High Court held that when old trees which stood on the land of the assessee were disposed of with their roots "once and for all", the receipts were capital. The Court observed (p. 318):"The asset of the man was the land with the wild growth of trees on it. If the land with the trees had been sold, there could have been no doubt that the sale was a realisation of capital and it would not have been possible to argue that the transaction in so far as it involved a sale of the trees was a sale producing income and the remaining part of the transaction was a capital sale. In the present case the land is retained by the assessee but a part of the asset is disposed of in its entirety by selling the trees with roots once and for all."17. In State of Kerala v. Karimtharuvi Tea Estate Ltd., (1964) 51 ITR 129 (Ker) the Kerala High Court held in a case arising under the Kerala Agricultural Income-tax Act, 1950, that the amount realised by sale as firewood of old and useless gravelia trees grown and maintained in tea gardens for the purpose of affording shade to tea plants is capital receipt and not revenue receipt. The Court observed :"The gravelia trees were grown and maintained for the sole purpose of providing shade to the tea bushes in the tea estates of the assessee. That such shade is essential for the proper cultivation of tea cannot be disputed and the trees should hence be considered to be as much a part of the capital assets of the company as the tea bushes themselves or the equipment in its factories. Some of the gravelia trees became old and useless with the efflux of time and they naturally had to be cut down and sold. The sale proceeds of such trees cannot possibly amount to a revenue receipt."18. In Commr. of Income-tax, Mysore v. H. B. Van Ingen, (1964) 53 ITR 681 (Mys), the Mysore High Court held that the assessee who had purchased a coffee estate of which a part had been planted with coffee plants and the rest was jungle, and had cleared the jungle for the purpose of planting coffee and had sold the trees felled, price realised by the sale of the trees was a capital and not a revenue receipt, because the trees had grown spontaneously, and the assessee had purchased the estate including the trees.19. It is not necessary for the purpose of this case to enter upon a detailed analysis of the principle underlying the decisions and to resolve the conflict. On the finding in the present case it is clear that the trees were not removed with roots.The stumps of the trees were allowed to remain in the land so that the trees may regenerate. If a person sells merely leaves or fruits of the trees or even branches of the trees it would be difficult (subject to the special exemption under Section 4 (3) (viii) of the Income-tax Act, 1922) to hold that the realization is not of the nature of income. Where the trunks are cut so that the stumps remain intact and capable of regeneration, receipts from sale of the trunks would be in the nature of income. It is true that the tree is a part of the land. But by selling a part of the trunk, the assessee does not necessarily realise a part of his capital. | 0[ds]3. We are of the view that the facts found by the Tribunal are not sufficient to enable us to record an answer to the question. It is not necessary for the purpose of this case to enter upon a detailed analysis of the principle underlying the decisions and to resolve the conflict. On the finding in the present case it is clear that the trees were not removed with roots.The stumps of the trees were allowed to remain in the land so that the trees may regenerate. If a person sells merely leaves or fruits of the trees or even branches of the trees it would be difficult (subject to the special exemption under Section 4 (3) (viii) of the Income-tax Act, 1922) to hold that the realization is not of the nature of income. Where the trunks are cut so that the stumps remain intact and capable of regeneration, receipts from sale of the trunks would be in the nature of income. It is true that the tree is a part of the land. But by selling a part of the trunk, the assessee does not necessarily realise a part of his capital. | 0 | 2,675 | 216 | ### 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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The Court observed that if income from the sale of coal from a coal-mine or stone won from a quarry or from the sale of paddy grown on land be regarded as income, but for the special exemption granted under the Income-tax Act, there is no logical reason for holding that income from sale of trees is not income liable to tax.12. In re, Ram Prasad, ILR 52 All 419 = (AIR 1930 All 389), a Division Bench of the Allahabad High Court held that receipt from sale of timber is income liable to be taxed and is not a capital receipt. The case arose under the Government Trading Taxation Act 3 of 1926.13. In Maharaja of Kapurthala v. Commr. of Income-tax, C. P. and U. P., (1945) 13 ITR 74 = (AIR 1945 Oudh 35), the Oudh Chief Court held that net receipt from the sale of forest trees is income liable to income-tax, even though the forest may be gradually exhausted by fellings. The Court further observed that income from the sale of forest trees of spontaneous growth growing on land which is assessed to land revenue is not agricultural income within the meaning of Sec. 2 (1) (a) of the Income-tax Act and is not exempt from income-tax under Sec. 4 (3) (viii) of the Act.14. In Kamakshya Narain Singh v. Commr. of Income-tax, Bihar and Orissa, (1946) 14 ITR 673 = (AIR 1947 Pat 115 ), a similar view was expressed by the Patna High Court.15. In Fringford Estates Ltd., Calicut v. Commr. of Income-tax, Madras, (1951) 20 ITR 585 = (AIR 1952 Mad 47 ), it was held that profits realised from the sale of timber were trade profits and were liable to income-tax. In that case the assessee Company formed with the object of purchasing, clearing and improving of estates and the cultivation and sale of tea, coffee etc., in such estates, purchased a tract of land part of which had already been cultivated with tea and the rest was a jungle capable of being cleared and made fit for plantation. The Company entered into an agreement with a timber merchant for clearing a part of the forest of all trees and for sale of the trees in the market. This was held to be a part of the business activity of the Company.16. The cases on the other side of the line are to be found in (1961) 41 ITR 313 (Bom) , in which a Division Bench of the Bombay High Court held that when old trees which stood on the land of the assessee were disposed of with their roots "once and for all", the receipts were capital. The Court observed (p. 318):"The asset of the man was the land with the wild growth of trees on it. If the land with the trees had been sold, there could have been no doubt that the sale was a realisation of capital and it would not have been possible to argue that the transaction in so far as it involved a sale of the trees was a sale producing income and the remaining part of the transaction was a capital sale. In the present case the land is retained by the assessee but a part of the asset is disposed of in its entirety by selling the trees with roots once and for all."17. In State of Kerala v. Karimtharuvi Tea Estate Ltd., (1964) 51 ITR 129 (Ker) the Kerala High Court held in a case arising under the Kerala Agricultural Income-tax Act, 1950, that the amount realised by sale as firewood of old and useless gravelia trees grown and maintained in tea gardens for the purpose of affording shade to tea plants is capital receipt and not revenue receipt. The Court observed :"The gravelia trees were grown and maintained for the sole purpose of providing shade to the tea bushes in the tea estates of the assessee. That such shade is essential for the proper cultivation of tea cannot be disputed and the trees should hence be considered to be as much a part of the capital assets of the company as the tea bushes themselves or the equipment in its factories. Some of the gravelia trees became old and useless with the efflux of time and they naturally had to be cut down and sold. The sale proceeds of such trees cannot possibly amount to a revenue receipt."18. In Commr. of Income-tax, Mysore v. H. B. Van Ingen, (1964) 53 ITR 681 (Mys), the Mysore High Court held that the assessee who had purchased a coffee estate of which a part had been planted with coffee plants and the rest was jungle, and had cleared the jungle for the purpose of planting coffee and had sold the trees felled, price realised by the sale of the trees was a capital and not a revenue receipt, because the trees had grown spontaneously, and the assessee had purchased the estate including the trees.19. It is not necessary for the purpose of this case to enter upon a detailed analysis of the principle underlying the decisions and to resolve the conflict. On the finding in the present case it is clear that the trees were not removed with roots.The stumps of the trees were allowed to remain in the land so that the trees may regenerate. If a person sells merely leaves or fruits of the trees or even branches of the trees it would be difficult (subject to the special exemption under Section 4 (3) (viii) of the Income-tax Act, 1922) to hold that the realization is not of the nature of income. Where the trunks are cut so that the stumps remain intact and capable of regeneration, receipts from sale of the trunks would be in the nature of income. It is true that the tree is a part of the land. But by selling a part of the trunk, the assessee does not necessarily realise a part of his capital.
### Response:
0
### Explanation:
3. We are of the view that the facts found by the Tribunal are not sufficient to enable us to record an answer to the question. It is not necessary for the purpose of this case to enter upon a detailed analysis of the principle underlying the decisions and to resolve the conflict. On the finding in the present case it is clear that the trees were not removed with roots.The stumps of the trees were allowed to remain in the land so that the trees may regenerate. If a person sells merely leaves or fruits of the trees or even branches of the trees it would be difficult (subject to the special exemption under Section 4 (3) (viii) of the Income-tax Act, 1922) to hold that the realization is not of the nature of income. Where the trunks are cut so that the stumps remain intact and capable of regeneration, receipts from sale of the trunks would be in the nature of income. It is true that the tree is a part of the land. But by selling a part of the trunk, the assessee does not necessarily realise a part of his capital.
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Suryalaxmi Cotton Mills Limited, Nagardhan Vs. State of Maharashtra | Executive Officer concerned. We, therefore, find that the contention of the learned counsel for the respondents that since the said agreement is in contravention of Rule 7, the Standing committee was justified in invoking powers under Section 142 of the said Act, is without substance. ( 18 ) AS already discussed, Section 125 of the said Act and the said Rules are complete Code in itself insofar as the matter regarding payment in lump sum by the factories in lieu of taxes is concerned. If the standing Committee of the Zilla Parishad is of the view that the agreement arrived at by the Gram Panchayat with the occupier is not in the public interest, or contrary to any of the provisions of the Rules, it can always point out the same to the State Government while forwarding the proposal. However, we find that invoking of powers under Section 142 of the said Act, in the present case, is totally unjustified. When the said Act and the said rules specifically deal with the matter of lump sum contribution by the factories in lieu of taxes, recourse to general provision under section 142 of the said Act, in our view, is not warranted. In any case, Section 142 of the said Act only provides for suspension of the resolution and it is mandatory for the Standing committee to forward the said order of suspension to the Commissioner and it is for the Commissioner to take a final decision in the matter. However, in the present case, we find that vide resolution dated 26th March, 2003, the Standing Committee of the Zilla parishad has cancelled the resolution passed by the Gram Panchayat dated 4th September, 2002. A bare perusal of Section 142 of the said Act would reveal that the action of the standing Committee in cancelling the resolution is totally beyond its purview. In any case, when Section 125 of the said Act and the said Rules specifically deal with the matter regarding lump sum contribution by the factories in lieu of taxes levied by the panchayat, the Zilla Parishad was bound to comply with the said provisions. ( 19 ) AS already discussed, the limited role that the Zilla Parishad plays in the matter is forwarding the agreement along with the documents specified in Rule 5 to the commissioner along with its remarks, for its sanction. It is ultimately for the State government to consider the matter. As already discussed hereinabove, the Zilla Parishad can always give its comments and opposition to the resolution of the Gram Panchayat and the state Government will have to consider the same before taking a decision regarding granting its sanction. The reliance placed by the learned counsel for the respondent Nos. 2 to 4 on Rule 7 of the said Rules, in our view, is also not justified. It is always open for the standing Committee to point out to the State government that any of the provisions of the rules have not been complied with by the gram Panchayat. Whether to grant sanction even in case provisions of Rules have not been complied, is within the domain of the State government in view of the provisions of Rule 10 of the said Rules. The only requirement is that the State Government is required to consider various aspects stated in Rule 10 and thereafter arrive at its subjective satisfaction. Further requirement is that before any such decision is taken by the State Government, the state Government has to lake into consideration the views of the Chief Executive officer concerned. We, therefore, find that the Rule 10 provides sufficient safeguard insofar as the public interest is concerned. If any of the action in the matter of payment of lump sum contribution by the factories in lieu of taxes is contrary to the public interest according to the Zilla Parishad, it can always bring the same to the notice of the State government. The State Government is bound to take into consideration the view of the Zilla parishad before it arrives at the decision in the matter. If the State Government finds that the agreement arrived at by the Gram panchayat with the occupier is not in the public interest or is not in accordance with Rule 10, it can always refuse to grant its sanction. But the said powers are required to be exercised by the State Government. Zilla Parishad cannot exercise the jurisdiction vested with the state Government. The limited role that is given to the Zilla Parishad is to forward the proposal to the State Government through the commissioner, with its remarks. We, therefore, find that the resolution dated 26th march, 2004 passed by the Standing committee is contrary to the provisions of the said Act and said Rules and the same is quashed and set aside.( 20 ) HOWEVER, it has been brought to our notice and it is not disputed that subsequently another resolution has been passed by the Gram Panchayat on 20th november, 2004, thereby accepting an amount of Rs. 2,77,000/- in lump sum in lieu of payment of taxes and an agreement has been entered into between the Gram Panchuyat and the occupier. However, it appears that the Zilla parishad is sitting tight over the said proposal and is not forwarding the same to the State government. As already discussed, the limited role of the Zilla Parishad is to forward such proposal with its comments to the State government through the Commissioner. We, therefore, direct that the Chief Executive officer of the Zilla Parishad i. e. the respondent no. 2 shall forthwith forward the proposal received from the respondent No. 4-Gram panchayat along with necessary documents and the remarks of the Standing Committee to the Commissioner who, in turn, shall forward the same to the State Government along with his comments. On receipt of the said proposal, the State Government would take into consideration the provisions of the said Act and the Rules and take appropriate decision in the matter. | 1[ds]( 16 ) IT could, thus, be seen that the said Rules provide a complete code insofar as issue of payment of lump sum contribution by factory in lieu of taxes is concerned. On an application by the occupier under Rule 3 of the said Rules, the concerned Panchayat is required to consider the same and pass necessary resolution. Rule 5 provides that if there is an agreement between Panchayat and occupier, they are required to execute a written statement in form a Upon execution of such an agreement, Panchayat is required to forward the said agreement with relevant documents, to the Chief Executive Officer. Rule 6 provides that on receipt of such proposal from gram Panchayat, the Chief Executive Officer should obtain the remarks of the Standing committee of the Zilla Parishad and forward the same to the Commissioner who, in turn, is required to submit the same with his comments to the State Government and the State government is required to consider the matter for sanction. ( 17 ) RULE 7 of the said Rules provides for certain limitations. It provides that the amount receivable by the Panchayat in respect of taxes should not be disproportionately less than the amount receivable by it. It also provides that in case of Octroi, it should not be less than 70% of the average amount recovered by it for last three years, in case of general sanitary cess and general water rate, it shall not be less than 30% of the amount receivable by it and in case of other taxes, it should not be less than 50% of the amount receivable by it. However, it can be seen that the provisions of Rule 7 are not mandatory. By subsequent amendment in the year 1980, rule 10 has been added to the said Rules which enables the State Government to even grant sanction in case where the agreement does not comply with any of the foregoing Rules. It could, thus be seen that a limitation as prescribed under Rule 7 is not mandatory. Having regard to certain factors specified in rule 10, the State Government may even grant sanction to any agreement which does not conform to any of the foregoing Rules. However, prior to granting such sanction, the state Government has to arrive at the subjective satisfaction that having regard to the amenities provided by the factory in the factory area as compared with the amenities provided by the Panchayat in other areas within its jurisdiction, and the amount spent by the factory on such amenities and also having regard to the nature of public interest served by the factory, the amount of lump sum contribution specified in the agreement as payable by the factory is reasonable and on that account the agreement needs to be sanctioned. Rule 10 further requires that prior to such sanction, the State Government shall obtain the view of the Chief Executive Officer concerned. We, therefore, find that the contention of the learned counsel for the respondents that since the said agreement is in contravention of Rule 7, the Standing committee was justified in invoking powers under Section 142 of the said Act, is without substance. ( 18 ) AS already discussed, Section 125 of the said Act and the said Rules are complete Code in itself insofar as the matter regarding payment in lump sum by the factories in lieu of taxes is concerned. If the standing Committee of the Zilla Parishad is of the view that the agreement arrived at by the Gram Panchayat with the occupier is not in the public interest, or contrary to any of the provisions of the Rules, it can always point out the same to the State Government while forwarding the proposal. However, we find that invoking of powers under Section 142 of the said Act, in the present case, is totally unjustified. When the said Act and the said rules specifically deal with the matter of lump sum contribution by the factories in lieu of taxes, recourse to general provision under section 142 of the said Act, in our view, is not warranted. In any case, Section 142 of the said Act only provides for suspension of the resolution and it is mandatory for the Standing committee to forward the said order of suspension to the Commissioner and it is for the Commissioner to take a final decision in the matter. However, in the present case, we find that vide resolution dated 26th March, 2003, the Standing Committee of the Zilla parishad has cancelled the resolution passed by the Gram Panchayat dated 4th September, 2002. A bare perusal of Section 142 of the said Act would reveal that the action of the standing Committee in cancelling the resolution is totally beyond its purview. In any case, when Section 125 of the said Act and the said Rules specifically deal with the matter regarding lump sum contribution by the factories in lieu of taxes levied by the panchayat, the Zilla Parishad was bound to comply with the said provisions. ( 19 ) AS already discussed, the limited role that the Zilla Parishad plays in the matter is forwarding the agreement along with the documents specified in Rule 5 to the commissioner along with its remarks, for its sanction. It is ultimately for the State government to consider the matter. As already discussed hereinabove, the Zilla Parishad can always give its comments and opposition to the resolution of the Gram Panchayat and the state Government will have to consider the same before taking a decision regarding granting its sanction. The reliance placed by the learned counsel for the respondent Nos. 2 to 4 on Rule 7 of the said Rules, in our view, is also not justified. It is always open for the standing Committee to point out to the State government that any of the provisions of the rules have not been complied with by the gram Panchayat. Whether to grant sanction even in case provisions of Rules have not been complied, is within the domain of the State government in view of the provisions of Rule 10 of the said Rules. The only requirement is that the State Government is required to consider various aspects stated in Rule 10 and thereafter arrive at its subjective satisfaction. Further requirement is that before any such decision is taken by the State Government, the state Government has to lake into consideration the views of the Chief Executive officer concerned. We, therefore, find that the Rule 10 provides sufficient safeguard insofar as the public interest is concerned. If any of the action in the matter of payment of lump sum contribution by the factories in lieu of taxes is contrary to the public interest according to the Zilla Parishad, it can always bring the same to the notice of the State government. The State Government is bound to take into consideration the view of the Zilla parishad before it arrives at the decision in the matter. If the State Government finds that the agreement arrived at by the Gram panchayat with the occupier is not in the public interest or is not in accordance with Rule 10, it can always refuse to grant its sanction. But the said powers are required to be exercised by the State Government. Zilla Parishad cannot exercise the jurisdiction vested with the state Government. The limited role that is given to the Zilla Parishad is to forward the proposal to the State Government through the commissioner, with its remarks. We, therefore, find that the resolution dated 26th march, 2004 passed by the Standing committee is contrary to the provisions of the said Act and said Rules and the same is quashed and set aside.( 20 ) HOWEVER, it has been brought to our notice and it is not disputed that subsequently another resolution has been passed by the Gram Panchayat on 20th november, 2004, thereby accepting an amount of Rs. 2,77,000/in lump sum in lieu of payment of taxes and an agreement has been entered into between the Gram Panchuyat and the occupier. However, it appears that the Zilla parishad is sitting tight over the said proposal and is not forwarding the same to the State government. As already discussed, the limited role of the Zilla Parishad is to forward such proposal with its comments to the State government through the Commissioner. We, therefore, direct that the Chief Executive officer of the Zilla Parishad i. e. the respondent no. 2 shall forthwith forward the proposal received from the respondent No.panchayat along with necessary documents and the remarks of the Standing Committee to the Commissioner who, in turn, shall forward the same to the State Government along with his comments. On receipt of the said proposal, the State Government would take into consideration the provisions of the said Act and the Rules and take appropriate decision in the matter. | 1 | 5,529 | 1,606 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
Executive Officer concerned. We, therefore, find that the contention of the learned counsel for the respondents that since the said agreement is in contravention of Rule 7, the Standing committee was justified in invoking powers under Section 142 of the said Act, is without substance. ( 18 ) AS already discussed, Section 125 of the said Act and the said Rules are complete Code in itself insofar as the matter regarding payment in lump sum by the factories in lieu of taxes is concerned. If the standing Committee of the Zilla Parishad is of the view that the agreement arrived at by the Gram Panchayat with the occupier is not in the public interest, or contrary to any of the provisions of the Rules, it can always point out the same to the State Government while forwarding the proposal. However, we find that invoking of powers under Section 142 of the said Act, in the present case, is totally unjustified. When the said Act and the said rules specifically deal with the matter of lump sum contribution by the factories in lieu of taxes, recourse to general provision under section 142 of the said Act, in our view, is not warranted. In any case, Section 142 of the said Act only provides for suspension of the resolution and it is mandatory for the Standing committee to forward the said order of suspension to the Commissioner and it is for the Commissioner to take a final decision in the matter. However, in the present case, we find that vide resolution dated 26th March, 2003, the Standing Committee of the Zilla parishad has cancelled the resolution passed by the Gram Panchayat dated 4th September, 2002. A bare perusal of Section 142 of the said Act would reveal that the action of the standing Committee in cancelling the resolution is totally beyond its purview. In any case, when Section 125 of the said Act and the said Rules specifically deal with the matter regarding lump sum contribution by the factories in lieu of taxes levied by the panchayat, the Zilla Parishad was bound to comply with the said provisions. ( 19 ) AS already discussed, the limited role that the Zilla Parishad plays in the matter is forwarding the agreement along with the documents specified in Rule 5 to the commissioner along with its remarks, for its sanction. It is ultimately for the State government to consider the matter. As already discussed hereinabove, the Zilla Parishad can always give its comments and opposition to the resolution of the Gram Panchayat and the state Government will have to consider the same before taking a decision regarding granting its sanction. The reliance placed by the learned counsel for the respondent Nos. 2 to 4 on Rule 7 of the said Rules, in our view, is also not justified. It is always open for the standing Committee to point out to the State government that any of the provisions of the rules have not been complied with by the gram Panchayat. Whether to grant sanction even in case provisions of Rules have not been complied, is within the domain of the State government in view of the provisions of Rule 10 of the said Rules. The only requirement is that the State Government is required to consider various aspects stated in Rule 10 and thereafter arrive at its subjective satisfaction. Further requirement is that before any such decision is taken by the State Government, the state Government has to lake into consideration the views of the Chief Executive officer concerned. We, therefore, find that the Rule 10 provides sufficient safeguard insofar as the public interest is concerned. If any of the action in the matter of payment of lump sum contribution by the factories in lieu of taxes is contrary to the public interest according to the Zilla Parishad, it can always bring the same to the notice of the State government. The State Government is bound to take into consideration the view of the Zilla parishad before it arrives at the decision in the matter. If the State Government finds that the agreement arrived at by the Gram panchayat with the occupier is not in the public interest or is not in accordance with Rule 10, it can always refuse to grant its sanction. But the said powers are required to be exercised by the State Government. Zilla Parishad cannot exercise the jurisdiction vested with the state Government. The limited role that is given to the Zilla Parishad is to forward the proposal to the State Government through the commissioner, with its remarks. We, therefore, find that the resolution dated 26th march, 2004 passed by the Standing committee is contrary to the provisions of the said Act and said Rules and the same is quashed and set aside.( 20 ) HOWEVER, it has been brought to our notice and it is not disputed that subsequently another resolution has been passed by the Gram Panchayat on 20th november, 2004, thereby accepting an amount of Rs. 2,77,000/- in lump sum in lieu of payment of taxes and an agreement has been entered into between the Gram Panchuyat and the occupier. However, it appears that the Zilla parishad is sitting tight over the said proposal and is not forwarding the same to the State government. As already discussed, the limited role of the Zilla Parishad is to forward such proposal with its comments to the State government through the Commissioner. We, therefore, direct that the Chief Executive officer of the Zilla Parishad i. e. the respondent no. 2 shall forthwith forward the proposal received from the respondent No. 4-Gram panchayat along with necessary documents and the remarks of the Standing Committee to the Commissioner who, in turn, shall forward the same to the State Government along with his comments. On receipt of the said proposal, the State Government would take into consideration the provisions of the said Act and the Rules and take appropriate decision in the matter.
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of the Chief Executive Officer concerned. We, therefore, find that the contention of the learned counsel for the respondents that since the said agreement is in contravention of Rule 7, the Standing committee was justified in invoking powers under Section 142 of the said Act, is without substance. ( 18 ) AS already discussed, Section 125 of the said Act and the said Rules are complete Code in itself insofar as the matter regarding payment in lump sum by the factories in lieu of taxes is concerned. If the standing Committee of the Zilla Parishad is of the view that the agreement arrived at by the Gram Panchayat with the occupier is not in the public interest, or contrary to any of the provisions of the Rules, it can always point out the same to the State Government while forwarding the proposal. However, we find that invoking of powers under Section 142 of the said Act, in the present case, is totally unjustified. When the said Act and the said rules specifically deal with the matter of lump sum contribution by the factories in lieu of taxes, recourse to general provision under section 142 of the said Act, in our view, is not warranted. In any case, Section 142 of the said Act only provides for suspension of the resolution and it is mandatory for the Standing committee to forward the said order of suspension to the Commissioner and it is for the Commissioner to take a final decision in the matter. However, in the present case, we find that vide resolution dated 26th March, 2003, the Standing Committee of the Zilla parishad has cancelled the resolution passed by the Gram Panchayat dated 4th September, 2002. A bare perusal of Section 142 of the said Act would reveal that the action of the standing Committee in cancelling the resolution is totally beyond its purview. In any case, when Section 125 of the said Act and the said Rules specifically deal with the matter regarding lump sum contribution by the factories in lieu of taxes levied by the panchayat, the Zilla Parishad was bound to comply with the said provisions. ( 19 ) AS already discussed, the limited role that the Zilla Parishad plays in the matter is forwarding the agreement along with the documents specified in Rule 5 to the commissioner along with its remarks, for its sanction. It is ultimately for the State government to consider the matter. As already discussed hereinabove, the Zilla Parishad can always give its comments and opposition to the resolution of the Gram Panchayat and the state Government will have to consider the same before taking a decision regarding granting its sanction. The reliance placed by the learned counsel for the respondent Nos. 2 to 4 on Rule 7 of the said Rules, in our view, is also not justified. It is always open for the standing Committee to point out to the State government that any of the provisions of the rules have not been complied with by the gram Panchayat. Whether to grant sanction even in case provisions of Rules have not been complied, is within the domain of the State government in view of the provisions of Rule 10 of the said Rules. The only requirement is that the State Government is required to consider various aspects stated in Rule 10 and thereafter arrive at its subjective satisfaction. Further requirement is that before any such decision is taken by the State Government, the state Government has to lake into consideration the views of the Chief Executive officer concerned. We, therefore, find that the Rule 10 provides sufficient safeguard insofar as the public interest is concerned. If any of the action in the matter of payment of lump sum contribution by the factories in lieu of taxes is contrary to the public interest according to the Zilla Parishad, it can always bring the same to the notice of the State government. The State Government is bound to take into consideration the view of the Zilla parishad before it arrives at the decision in the matter. If the State Government finds that the agreement arrived at by the Gram panchayat with the occupier is not in the public interest or is not in accordance with Rule 10, it can always refuse to grant its sanction. But the said powers are required to be exercised by the State Government. Zilla Parishad cannot exercise the jurisdiction vested with the state Government. The limited role that is given to the Zilla Parishad is to forward the proposal to the State Government through the commissioner, with its remarks. We, therefore, find that the resolution dated 26th march, 2004 passed by the Standing committee is contrary to the provisions of the said Act and said Rules and the same is quashed and set aside.( 20 ) HOWEVER, it has been brought to our notice and it is not disputed that subsequently another resolution has been passed by the Gram Panchayat on 20th november, 2004, thereby accepting an amount of Rs. 2,77,000/in lump sum in lieu of payment of taxes and an agreement has been entered into between the Gram Panchuyat and the occupier. However, it appears that the Zilla parishad is sitting tight over the said proposal and is not forwarding the same to the State government. As already discussed, the limited role of the Zilla Parishad is to forward such proposal with its comments to the State government through the Commissioner. We, therefore, direct that the Chief Executive officer of the Zilla Parishad i. e. the respondent no. 2 shall forthwith forward the proposal received from the respondent No.panchayat along with necessary documents and the remarks of the Standing Committee to the Commissioner who, in turn, shall forward the same to the State Government along with his comments. On receipt of the said proposal, the State Government would take into consideration the provisions of the said Act and the Rules and take appropriate decision in the matter.
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M/S. Heat Shrink Technologies Limited Vs. Iit Capital Services Limited | with liberty to the Petitioners to lodge their claim with the Official Liquidator in accordance with law. Secondly, it may also be noticed that it appears from the record that during the pendency of the winding up petition, the Company, REPL Engineering Limited, changed its name to Heat Shrink Technologies Ltd., with registered office at the same place. During the course of hearing, a copy of the letter dated 26th November, 2007 was placed on record which supports this fact. In this very letter, certain allegations were made against the Counsel whom the Company had engaged earlier and that the Advocate should have brought to the notice of the Court that the matter is pending before the BIFR.7. No doubt, if a valid reference is pending before the BIFR, normally all the other proceedings need to be stayed. This position of law is of hardly any advantage to the Company on facts of the present case and particularly keeping in mind the conduct of the Company before the Company Court as well as before the BIFR. The Company Petition was admitted by the order of the Company Court dated 1st July, 2005 and the petition remained pending before the Company Court for a considerable time. The final order of winding up against the Company was passed on 13th September, 2007. There is not a whisper in the entire appeal as to what the Company was doing for all this period. It is nowhere stated that it was brought to the notice of the Company Court that a reference before the BIFR was pending and, therefore, the proceeding should be stayed, despite the fact that the appellant company had received notice from the Official Liquidator in furtherance to the order passed by the Court. The only document shown during the course of arguments in the appeal is the letter dated 26th November, 2007 which is of no consequence inasmuch as it is written after the order of winding up was made by the Court on 13th September, 2007. Even after writing this letter, the Company has taken no effective steps except casually filing the present appeal. In four paragraphs of the grounds of appeal, no material grounds have been stated except the vague ground that the proceedings before the BIFR were pending. The contention of the appellant company that it was obligatory upon the Company Court to find out as to whether the proceedings were pending before the BIFR or AAIFR and at what stage is unacceptable in law. This is strange for the appellant company to even raise such an argument. If the appellant company desired that the proceedings before the Company Court should be stayed because of the pendency of the proceedings before the BIFR or AAIFR it was obviously the obligation of the appellant company to bring due material on record before the learned Company Judge. The onus to prove this fact was obviously upon the appellant company which it miserably failed to discharge and now it cannot be permitted to take advantage of its own wrong.8. Furthermore, it may also be noticed that at all material time no proceedings were pending before the BIFR/AAIFR. The appellant company was desperate to have its proceedings continued before BIFR at any cost. As already noticed, it filed as many as four references between the period 30th April, 1999 and 13th June, 2006 but all these references came to be rejected. Strangely, the learned counsel appearing for the appellant during the course of hearing made a vague argument that the AAIFR had referred back the proceedings to BIFR in Appeal No. 109 of 2003 vide order dated 8th August, 2007. What happened thereafter the counsel was unable to inform the Court. This is the conduct of the appellant Company. In any case, we had directed the Registry to check from the internet and place a report before the Court as to whether any proceedings were pending before the BIFR in Reference No. 295/2002 which, according to the appellant, was referred back by AAIFR vide its order dated 8th August, 2007. The report put up by the Registry before us reads as under.As per online status provided by the Board for Industrial and Financial Reconstruction, there are total four references so far preferred by the Appellants Company as per the particulars given hereunder:I respectfully submit that AAIFRs reports are not available on web site and therefore, the status of Appeal No. 109 of 2003 before the AAIFR is not available.9. From the above, it is seen that no reference was pending before the BIFR when the Company Petition was admitted on 1st July, 2005. By that time, all the first three references filed by the Company right from 1998 to 2003 had already been dismissed even in appeal by AAIFR. The Company was ordered to be wound up on 13th September, 2007. Again at that time no reference was pending before the BIFR and none appears to be pending from the record. The appellant company in fact has abused the process of law not only before the Company Court but even before BIFR/AAIFR. In the present appeal, again no effort was made by the appellant to bring on record anything to the contrary than what we have noticed.10. Before the learned Company Judge, no defence was put forward when the company was ordered to be wound up. Even in the grounds of appeal, nothing has been stated on merits of the claim of the respondent Company. There is no dispute to the fact that the cheques were issued by the appellant company and/or under its former name. The funds were insufficient in the bank accounts. No defence has been offered even in appeal before the Court. We are unable to find any error in the judgment of the learned single Judge either in law or on facts. Appeal (Lodging) No. 927 of 2007 is consequently dismissed. However, in the facts of the case, we leave the parties to bear their own costs. | 0[ds]7. No doubt, if a valid reference is pending before the BIFR, normally all the other proceedings need to be stayed. This position of law is of hardly any advantage to the Company on facts of the present case and particularly keeping in mind the conduct of the Company before the Company Court as well as before the BIFR. The Company Petition was admitted by the order of the Company Court dated 1st July, 2005 and the petition remained pending before the Company Court for a considerable time. The final order of winding up against the Company was passed on 13th September, 2007. There is not a whisper in the entire appeal as to what the Company was doing for all this period. It is nowhere stated that it was brought to the notice of the Company Court that a reference before the BIFR was pending and, therefore, the proceeding should be stayed, despite the fact that the appellant company had received notice from the Official Liquidator in furtherance to the order passed by the Court. The only document shown during the course of arguments in the appeal is the letter dated 26th November, 2007 which is of no consequence inasmuch as it is written after the order of winding up was made by the Court on 13th September, 2007. Even after writing this letter, the Company has taken no effective steps except casually filing the present appeal. In four paragraphs of the grounds of appeal, no material grounds have been stated except the vague ground that the proceedings before the BIFR were pending. The contention of the appellant company that it was obligatory upon the Company Court to find out as to whether the proceedings were pending before the BIFR or AAIFR and at what stage is unacceptable in law. This is strange for the appellant company to even raise such an argument. If the appellant company desired that the proceedings before the Company Court should be stayed because of the pendency of the proceedings before the BIFR or AAIFR it was obviously the obligation of the appellant company to bring due material on record before the learned Company Judge. The onus to prove this fact was obviously upon the appellant company which it miserably failed to discharge and now it cannot be permitted to take advantage of its ownalready noticed, it filed as many as four references between the period 30th April, 1999 and 13th June, 2006 but all these references came to be rejected. Strangely, the learned counsel appearing for the appellant during the course of hearing made a vague argument that the AAIFR had referred back the proceedings to BIFR in Appeal No. 109 of 2003 vide order dated 8th August, 2007. What happened thereafter the counsel was unable to inform the Court. This is the conduct of the appellant Company.9. From the above, it is seen that no reference was pending before the BIFR when the Company Petition was admitted on 1st July, 2005. By that time, all the first three references filed by the Company right from 1998 to 2003 had already been dismissed even in appeal by AAIFR. The Company was ordered to be wound up on 13th September, 2007. Again at that time no reference was pending before the BIFR and none appears to be pending from the record. The appellant company in fact has abused the process of law not only before the Company Court but even before BIFR/AAIFR. In the present appeal, again no effort was made by the appellant to bring on record anything to the contrary than what we haveis no dispute to the fact that the cheques were issued by the appellant company and/or under its former name. The funds were insufficient in the bank accounts. No defence has been offered even in appeal before the Court. We are unable to find any error in the judgment of the learned single Judge either in law or on facts. Appeal (Lodging) No. 927 of 2007 is consequently dismissed. However, in the facts of the case, we leave the parties to bear their own costs. | 0 | 2,294 | 746 | ### 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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with liberty to the Petitioners to lodge their claim with the Official Liquidator in accordance with law. Secondly, it may also be noticed that it appears from the record that during the pendency of the winding up petition, the Company, REPL Engineering Limited, changed its name to Heat Shrink Technologies Ltd., with registered office at the same place. During the course of hearing, a copy of the letter dated 26th November, 2007 was placed on record which supports this fact. In this very letter, certain allegations were made against the Counsel whom the Company had engaged earlier and that the Advocate should have brought to the notice of the Court that the matter is pending before the BIFR.7. No doubt, if a valid reference is pending before the BIFR, normally all the other proceedings need to be stayed. This position of law is of hardly any advantage to the Company on facts of the present case and particularly keeping in mind the conduct of the Company before the Company Court as well as before the BIFR. The Company Petition was admitted by the order of the Company Court dated 1st July, 2005 and the petition remained pending before the Company Court for a considerable time. The final order of winding up against the Company was passed on 13th September, 2007. There is not a whisper in the entire appeal as to what the Company was doing for all this period. It is nowhere stated that it was brought to the notice of the Company Court that a reference before the BIFR was pending and, therefore, the proceeding should be stayed, despite the fact that the appellant company had received notice from the Official Liquidator in furtherance to the order passed by the Court. The only document shown during the course of arguments in the appeal is the letter dated 26th November, 2007 which is of no consequence inasmuch as it is written after the order of winding up was made by the Court on 13th September, 2007. Even after writing this letter, the Company has taken no effective steps except casually filing the present appeal. In four paragraphs of the grounds of appeal, no material grounds have been stated except the vague ground that the proceedings before the BIFR were pending. The contention of the appellant company that it was obligatory upon the Company Court to find out as to whether the proceedings were pending before the BIFR or AAIFR and at what stage is unacceptable in law. This is strange for the appellant company to even raise such an argument. If the appellant company desired that the proceedings before the Company Court should be stayed because of the pendency of the proceedings before the BIFR or AAIFR it was obviously the obligation of the appellant company to bring due material on record before the learned Company Judge. The onus to prove this fact was obviously upon the appellant company which it miserably failed to discharge and now it cannot be permitted to take advantage of its own wrong.8. Furthermore, it may also be noticed that at all material time no proceedings were pending before the BIFR/AAIFR. The appellant company was desperate to have its proceedings continued before BIFR at any cost. As already noticed, it filed as many as four references between the period 30th April, 1999 and 13th June, 2006 but all these references came to be rejected. Strangely, the learned counsel appearing for the appellant during the course of hearing made a vague argument that the AAIFR had referred back the proceedings to BIFR in Appeal No. 109 of 2003 vide order dated 8th August, 2007. What happened thereafter the counsel was unable to inform the Court. This is the conduct of the appellant Company. In any case, we had directed the Registry to check from the internet and place a report before the Court as to whether any proceedings were pending before the BIFR in Reference No. 295/2002 which, according to the appellant, was referred back by AAIFR vide its order dated 8th August, 2007. The report put up by the Registry before us reads as under.As per online status provided by the Board for Industrial and Financial Reconstruction, there are total four references so far preferred by the Appellants Company as per the particulars given hereunder:I respectfully submit that AAIFRs reports are not available on web site and therefore, the status of Appeal No. 109 of 2003 before the AAIFR is not available.9. From the above, it is seen that no reference was pending before the BIFR when the Company Petition was admitted on 1st July, 2005. By that time, all the first three references filed by the Company right from 1998 to 2003 had already been dismissed even in appeal by AAIFR. The Company was ordered to be wound up on 13th September, 2007. Again at that time no reference was pending before the BIFR and none appears to be pending from the record. The appellant company in fact has abused the process of law not only before the Company Court but even before BIFR/AAIFR. In the present appeal, again no effort was made by the appellant to bring on record anything to the contrary than what we have noticed.10. Before the learned Company Judge, no defence was put forward when the company was ordered to be wound up. Even in the grounds of appeal, nothing has been stated on merits of the claim of the respondent Company. There is no dispute to the fact that the cheques were issued by the appellant company and/or under its former name. The funds were insufficient in the bank accounts. No defence has been offered even in appeal before the Court. We are unable to find any error in the judgment of the learned single Judge either in law or on facts. Appeal (Lodging) No. 927 of 2007 is consequently dismissed. However, in the facts of the case, we leave the parties to bear their own costs.
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7. No doubt, if a valid reference is pending before the BIFR, normally all the other proceedings need to be stayed. This position of law is of hardly any advantage to the Company on facts of the present case and particularly keeping in mind the conduct of the Company before the Company Court as well as before the BIFR. The Company Petition was admitted by the order of the Company Court dated 1st July, 2005 and the petition remained pending before the Company Court for a considerable time. The final order of winding up against the Company was passed on 13th September, 2007. There is not a whisper in the entire appeal as to what the Company was doing for all this period. It is nowhere stated that it was brought to the notice of the Company Court that a reference before the BIFR was pending and, therefore, the proceeding should be stayed, despite the fact that the appellant company had received notice from the Official Liquidator in furtherance to the order passed by the Court. The only document shown during the course of arguments in the appeal is the letter dated 26th November, 2007 which is of no consequence inasmuch as it is written after the order of winding up was made by the Court on 13th September, 2007. Even after writing this letter, the Company has taken no effective steps except casually filing the present appeal. In four paragraphs of the grounds of appeal, no material grounds have been stated except the vague ground that the proceedings before the BIFR were pending. The contention of the appellant company that it was obligatory upon the Company Court to find out as to whether the proceedings were pending before the BIFR or AAIFR and at what stage is unacceptable in law. This is strange for the appellant company to even raise such an argument. If the appellant company desired that the proceedings before the Company Court should be stayed because of the pendency of the proceedings before the BIFR or AAIFR it was obviously the obligation of the appellant company to bring due material on record before the learned Company Judge. The onus to prove this fact was obviously upon the appellant company which it miserably failed to discharge and now it cannot be permitted to take advantage of its ownalready noticed, it filed as many as four references between the period 30th April, 1999 and 13th June, 2006 but all these references came to be rejected. Strangely, the learned counsel appearing for the appellant during the course of hearing made a vague argument that the AAIFR had referred back the proceedings to BIFR in Appeal No. 109 of 2003 vide order dated 8th August, 2007. What happened thereafter the counsel was unable to inform the Court. This is the conduct of the appellant Company.9. From the above, it is seen that no reference was pending before the BIFR when the Company Petition was admitted on 1st July, 2005. By that time, all the first three references filed by the Company right from 1998 to 2003 had already been dismissed even in appeal by AAIFR. The Company was ordered to be wound up on 13th September, 2007. Again at that time no reference was pending before the BIFR and none appears to be pending from the record. The appellant company in fact has abused the process of law not only before the Company Court but even before BIFR/AAIFR. In the present appeal, again no effort was made by the appellant to bring on record anything to the contrary than what we haveis no dispute to the fact that the cheques were issued by the appellant company and/or under its former name. The funds were insufficient in the bank accounts. No defence has been offered even in appeal before the Court. We are unable to find any error in the judgment of the learned single Judge either in law or on facts. Appeal (Lodging) No. 927 of 2007 is consequently dismissed. However, in the facts of the case, we leave the parties to bear their own costs.
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Shri Tara Chand Vs. Superintendent of Central Excise, Bombay | gold in contravention of any provisions of Part XII-A of the Defence of India Rules renders himself liable for punishment under Rule 126P (2).And on careful study of the material placed before me and satisfying myself that the said Sri Tarachand is liable to action under Rule 126P (2) of the Defence of India Amendment Rules, 1963 for, reasons mentioned above, I, V. Parthasarathy, Collector of Central Excise, Mysore Collectorate, Bangalore, in exercise of the powers conferred on me by the Government of India in their Notification No. F25/1/63-GCR dated 5-11-63 issued under Rule 126J read with Rule 126-X of the Defence of India Amendment Rules do hereby accord consent for the institution of prosecution of the said Sri Tarachand as required under Rule 126Q of the Defence of India Amendment Rules, 1963."12. This authority, in our opinion, quite clearly falls within the notification read as a whole and the High Court was right in so construing it.13. The submission that these notifications must be construed strictly because by these instruments the authority to prosecute is delegated and so construed they should be held to confer power only to prosecute but not to accord consent to the appellants prosecution by some other person or authority has not impressed us. The attempt by the appellants learned counsel in this connection to equate these notifications with powers of attorney does not carry the matter any further. The plain reading, of the relevant entries in the notifications leaves no doubt in our mind as to its meaning, scope and effect. It quite clearly authorises the Collector to exercise the power and function in relation to the matter of institution of prosecution for any offence punishable under Part XII-A of the Rules referred to in Rule 126-Q.Keeping in view the multifarious activities of the higher officers of the Central Excise Department it seems to us that after the responsible officers of this Department not inferior in rank to the Assistant Collector had applied their mind and come to a decision as to the desirability of starting the prosecution in a given case further steps in the matter of actual prosecution including the drafting and presentation of the complaint can be lawfully carried out by others. That this is the real object and purpose of the notifications is clearly brought out on plain reading of their language.To hold otherwise, as desired by Shri Tarkunde, would not only mean unduly straining the unambiguous statutory language but would also tend to thwart, instead of effectuating, their real purpose We are thus in agreement, with the view taken by the High Court.14. The counsel next submitted that the charge levelled against the appellant was different from the one for which he has been convicted. In any event the charge framed, according to the counsel, was vague and it has caused him prejudice in his defence. Here again, we are unable to agree. In the complaint all the relevant facts were stated quite clearly and it was emphasised that the appellant had been found in possession of 16 pieces of gold with foreign markings ingeniously concealed inside long tabular pouches, in turn hidden inside a pillow case. He was stated to be guilty inter alia of offences punishable under Rule 126-P (2). The second charge framed by the Court was as follows:"That you on or about the 16th November, 1963 at about 12.45 hours at H A L Aerodrome, Bangalore, alighted from the plane No. 105 which arrived from Bombay and when you and your articles were searched, you were found in possession of 16 pieces of gold each bearing markings as to its foreign origin and purity weighing 10 tolas each, having illegally imported into India in contravention of prohibition imposed by the Ministry of Finance Notification No. 1211 Fl/48, dated 25th August, 1948 and without permit issued by the Gold Control Authorities as required under Rule 126-H (d) under the Defence of India Amendment Rules, 1963 and thereby committed an offense under Rule 126P (2) r/w 126-I (10) of the Defence of India Amendment Rules, 1963 relating to Gold Control and within my cognizance".The appellant never complained that this charge was vague or outside the complaint. Indeed in his statement in Court the appellant has admitted all the relevant facts alleged by the prosecution. The facts alleged and proved clearly bring the appellants case Within the mischief of Rules 126-H (2) (d) and 126-P (2). Rule 126-H (2) (d) has already been reproduced earlier. Under Rule 126-P (2) (ii) whoever has in his possession or under his control any quantity of gold in contravention of any provision of Part XII-A is punishable with imprisonment for a term of not less than six months and not more than two years and also with fine. All the relevant salient facts alleged by the prosecution having been admitted by the appellant there can hardly be any question of prejudice having been caused to him by the wide language of the complaint and the charge, assuming the language to be wide. This argument is accordingly repelled.15. Lastly the counsel contended that the sentence imposed was too severe. The entire gold seized from him having been confiscated the sentence undergone should, according to the submission, be held to serve the cause of justice. We have already noticed that under Rule 126P (2) (ii) the minimum period of imprisonment prescribed is six months. According to the appellant the law has since been amended and under the Gold (Control) Act 18 of 1965 which has repealed Part XII-A of the Rules there is no minimum sentence of imprisonment prescribed. In our opinion this case must be governed by the law as it was in force prior to the enforcement of the Gold (Control) Act, l965. Our attention has not been drawn to any provision of law nor to any principle or precedent which would attract the provisions of the Gold (Control) Act of 1965 to this case m regard to the question of sentence. | 0[ds]12. This authority, in our opinion, quite clearly falls within the notification read as a whole and the High Court was right in so construing it.13. The submission that these notifications must be construed strictly because by these instruments the authority to prosecute is delegated and so construed they should be held to confer power only to prosecute but not to accord consent to the appellants prosecution by some other person or authority has not impressed us. The attempt by the appellants learned counsel in this connection to equate these notifications with powers of attorney does not carry the matter any further. The plain reading, of the relevant entries in the notifications leaves no doubt in our mind as to its meaning, scope and effect. It quite clearly authorises the Collector to exercise the power and function in relation to the matter of institution of prosecution for any offence punishable under Part XII-A of the Rules referred to in Ruleappellant never complained that this charge was vague or outside the complaint. Indeed in his statement in Court the appellant has admitted all the relevant facts alleged by the prosecution. The facts alleged and proved clearly bring the appellants case Within the mischief of Rules 126-H (2) (d) and 126-P (2). Rule 126-H (2) (d) has already been reproduced earlier. Under Rule 126-P (2) (ii) whoever has in his possession or under his control any quantity of gold in contravention of any provision of Part XII-A is punishable with imprisonment for a term of not less than six months and not more than two years and also with fine. All the relevant salient facts alleged by the prosecution having been admitted by the appellant there can hardly be any question of prejudice having been caused to him by the wide language of the complaint and the charge, assuming the language to be wide. This argument is accordingly repelled.15.Lastly the counsel contended that the sentence imposed was too severe. The entire gold seized from him having been confiscated the sentence undergone should, according to the submission, be held to serve the cause of justice.We have already noticed that under Rule 126P (2) (ii) the minimum period of imprisonment prescribed is six months. According to the appellant the law has since been amended and under the Gold (Control) Act 18 of 1965 which has repealed Part XII-A of the Rules there is no minimum sentence of imprisonment prescribed. In our opinion this case must be governed by the law as it was in force prior to the enforcement of the Gold (Control) Act, l965. Our attention has not been drawn to any provision of law nor to any principle or precedent which would attract the provisions of the Gold (Control) Act of 1965 to this case m regard to the question of sentence. | 0 | 3,484 | 522 | ### 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:
gold in contravention of any provisions of Part XII-A of the Defence of India Rules renders himself liable for punishment under Rule 126P (2).And on careful study of the material placed before me and satisfying myself that the said Sri Tarachand is liable to action under Rule 126P (2) of the Defence of India Amendment Rules, 1963 for, reasons mentioned above, I, V. Parthasarathy, Collector of Central Excise, Mysore Collectorate, Bangalore, in exercise of the powers conferred on me by the Government of India in their Notification No. F25/1/63-GCR dated 5-11-63 issued under Rule 126J read with Rule 126-X of the Defence of India Amendment Rules do hereby accord consent for the institution of prosecution of the said Sri Tarachand as required under Rule 126Q of the Defence of India Amendment Rules, 1963."12. This authority, in our opinion, quite clearly falls within the notification read as a whole and the High Court was right in so construing it.13. The submission that these notifications must be construed strictly because by these instruments the authority to prosecute is delegated and so construed they should be held to confer power only to prosecute but not to accord consent to the appellants prosecution by some other person or authority has not impressed us. The attempt by the appellants learned counsel in this connection to equate these notifications with powers of attorney does not carry the matter any further. The plain reading, of the relevant entries in the notifications leaves no doubt in our mind as to its meaning, scope and effect. It quite clearly authorises the Collector to exercise the power and function in relation to the matter of institution of prosecution for any offence punishable under Part XII-A of the Rules referred to in Rule 126-Q.Keeping in view the multifarious activities of the higher officers of the Central Excise Department it seems to us that after the responsible officers of this Department not inferior in rank to the Assistant Collector had applied their mind and come to a decision as to the desirability of starting the prosecution in a given case further steps in the matter of actual prosecution including the drafting and presentation of the complaint can be lawfully carried out by others. That this is the real object and purpose of the notifications is clearly brought out on plain reading of their language.To hold otherwise, as desired by Shri Tarkunde, would not only mean unduly straining the unambiguous statutory language but would also tend to thwart, instead of effectuating, their real purpose We are thus in agreement, with the view taken by the High Court.14. The counsel next submitted that the charge levelled against the appellant was different from the one for which he has been convicted. In any event the charge framed, according to the counsel, was vague and it has caused him prejudice in his defence. Here again, we are unable to agree. In the complaint all the relevant facts were stated quite clearly and it was emphasised that the appellant had been found in possession of 16 pieces of gold with foreign markings ingeniously concealed inside long tabular pouches, in turn hidden inside a pillow case. He was stated to be guilty inter alia of offences punishable under Rule 126-P (2). The second charge framed by the Court was as follows:"That you on or about the 16th November, 1963 at about 12.45 hours at H A L Aerodrome, Bangalore, alighted from the plane No. 105 which arrived from Bombay and when you and your articles were searched, you were found in possession of 16 pieces of gold each bearing markings as to its foreign origin and purity weighing 10 tolas each, having illegally imported into India in contravention of prohibition imposed by the Ministry of Finance Notification No. 1211 Fl/48, dated 25th August, 1948 and without permit issued by the Gold Control Authorities as required under Rule 126-H (d) under the Defence of India Amendment Rules, 1963 and thereby committed an offense under Rule 126P (2) r/w 126-I (10) of the Defence of India Amendment Rules, 1963 relating to Gold Control and within my cognizance".The appellant never complained that this charge was vague or outside the complaint. Indeed in his statement in Court the appellant has admitted all the relevant facts alleged by the prosecution. The facts alleged and proved clearly bring the appellants case Within the mischief of Rules 126-H (2) (d) and 126-P (2). Rule 126-H (2) (d) has already been reproduced earlier. Under Rule 126-P (2) (ii) whoever has in his possession or under his control any quantity of gold in contravention of any provision of Part XII-A is punishable with imprisonment for a term of not less than six months and not more than two years and also with fine. All the relevant salient facts alleged by the prosecution having been admitted by the appellant there can hardly be any question of prejudice having been caused to him by the wide language of the complaint and the charge, assuming the language to be wide. This argument is accordingly repelled.15. Lastly the counsel contended that the sentence imposed was too severe. The entire gold seized from him having been confiscated the sentence undergone should, according to the submission, be held to serve the cause of justice. We have already noticed that under Rule 126P (2) (ii) the minimum period of imprisonment prescribed is six months. According to the appellant the law has since been amended and under the Gold (Control) Act 18 of 1965 which has repealed Part XII-A of the Rules there is no minimum sentence of imprisonment prescribed. In our opinion this case must be governed by the law as it was in force prior to the enforcement of the Gold (Control) Act, l965. Our attention has not been drawn to any provision of law nor to any principle or precedent which would attract the provisions of the Gold (Control) Act of 1965 to this case m regard to the question of sentence.
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### Explanation:
12. This authority, in our opinion, quite clearly falls within the notification read as a whole and the High Court was right in so construing it.13. The submission that these notifications must be construed strictly because by these instruments the authority to prosecute is delegated and so construed they should be held to confer power only to prosecute but not to accord consent to the appellants prosecution by some other person or authority has not impressed us. The attempt by the appellants learned counsel in this connection to equate these notifications with powers of attorney does not carry the matter any further. The plain reading, of the relevant entries in the notifications leaves no doubt in our mind as to its meaning, scope and effect. It quite clearly authorises the Collector to exercise the power and function in relation to the matter of institution of prosecution for any offence punishable under Part XII-A of the Rules referred to in Ruleappellant never complained that this charge was vague or outside the complaint. Indeed in his statement in Court the appellant has admitted all the relevant facts alleged by the prosecution. The facts alleged and proved clearly bring the appellants case Within the mischief of Rules 126-H (2) (d) and 126-P (2). Rule 126-H (2) (d) has already been reproduced earlier. Under Rule 126-P (2) (ii) whoever has in his possession or under his control any quantity of gold in contravention of any provision of Part XII-A is punishable with imprisonment for a term of not less than six months and not more than two years and also with fine. All the relevant salient facts alleged by the prosecution having been admitted by the appellant there can hardly be any question of prejudice having been caused to him by the wide language of the complaint and the charge, assuming the language to be wide. This argument is accordingly repelled.15.Lastly the counsel contended that the sentence imposed was too severe. The entire gold seized from him having been confiscated the sentence undergone should, according to the submission, be held to serve the cause of justice.We have already noticed that under Rule 126P (2) (ii) the minimum period of imprisonment prescribed is six months. According to the appellant the law has since been amended and under the Gold (Control) Act 18 of 1965 which has repealed Part XII-A of the Rules there is no minimum sentence of imprisonment prescribed. In our opinion this case must be governed by the law as it was in force prior to the enforcement of the Gold (Control) Act, l965. Our attention has not been drawn to any provision of law nor to any principle or precedent which would attract the provisions of the Gold (Control) Act of 1965 to this case m regard to the question of sentence.
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Delhi Subordinate Services Selection Board Vs. Praveen Kumar | considered only on production of prima facie proof as to such invalidating circumstances. The Court shall not assume that a subordinate legislative instruments is invalid for absence of competence or bona fides or fairness or reasonableness and cast the negative burden on the rule-making authority. It should be just the other way; the person who challenges the vires of a rule has to prove his challenge just as much as a person who challenges a legislative enactment. If he fails in such attempt the challenge can only be thrown out....."(emphasis supplied)47. In Khoday Distilleries Ltd. v. State of Karnataka reported in (1996) 10 SCC 304 para 13 it has been held that the test of the arbitrariness applicable to the delegated legislation is different from the one applicable to executive actions. The relevant portion of the said judgment is reproduced for ready reference:-"13. It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In the case of Indian Express Newspaper (Bombay) (P) Ltd. v. Union of India (SCR at p.243) this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; "unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary". Drawing a comparison between the law in England in India, the Court further observed that in England the judges would say, "Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires". In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it would not be said to be in conformity with the statute or that it offends Article 14 of the Constitution."48. Further, as the Rules are legislative in character they cannot be challenged on the grounds of malafides. In Capt. B.D. Gupta v. State of U.P. reported in 1991 Supp(1) SCC 1 para 1 of the Supreme Court held:-"17....If the Rules were framed for making regular appointments in the Civil Aviation Department, there was no reason whey they should have been confined only to three posts which included the post of Director. Secondly, he pointed out that whereas the post of Director was not a promotional one earlier and was, therefore, open to external candidates as well, it was made promotional to suit Captain Singh. These circumstances according to us do not prove the mala fides. Admittedly, the Rules are made under Article 309 of the Constitution of India and are, therefore, a piece of legislation. It is well settled that no legislation can be challenged on the ground of mala fides......"49. In our opinion, the doctrine of legitimate expectation, referred to by the petitioners, has no application to the present case as the Respondents have never represented or held out to any student entering into an ETE course, that he would be given employment with the Respondents. In fact, ETE is a professional training course and the candidates securing such degrees are free to pursue other career options all over India with other agencies as well. The course does not confer any vested rights or employment with either the Government or MCD. In view of the absence of any representation regarding employability with the Respondents alone upon completion of a qualifying course, the petitioners plea of legitimate expectation merits no acceptance."9. The High Court also accepted the well recognised principle that it is the employers prerogative to decide the age limit and academic suitability of candidates which they wish to employ and so long as the same are not contradictory to the academic eligibility as prescribed by the NCTE Act, any challenge to the same, merely because it renders some candidates ineligible, ought to be rejected. Fixing of such age limit for a given post is a matter of policy as held by this Court in Union of India & Ors. v. Shivbachan Rai reported in 2001 (9) SCC 356. 10. After rejecting the contentions on merits and upholding the validity of the Recruitment Rules, the Court went into the issue of hardship because of sudden reduction in the upper age limit and only on that ground one time relaxation was given to the petitioners in the said petition. A direction was given to permit all those candidates who had completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination. Thus, this was one time relaxation given for the examination which was to be conducted in the year 2008, in order to ameliorate the hardship.11. Once, we understand the contours and scope of the judgment and directions, it becomes abundantly clear that the said judgment of the High Court in Sachin Guptas case cannot be made applicable for all times. The respondent herein was not the candidate in the recruitment to the said post in the year 2008. On the contrary, he applied for the post pursuant to the advertisement published in the year 2009. In the impugned judgment the High Court has failed to consider the aforesaid analysis of its earlier judgment in Sachin Guptas case. | 1[ds]7. If one goes strictly by the eligibility conditions stipulated in the advertisement or the Rules for recruitment to the post of Teacher (Primary), it cannot be disputed that the upper age limit for consideration to appointment to the aforesaid post is 27 years. It means that any person who has attained the age of 27 years renders himself/herself ineligible to apply for the said post. Notwithstanding the same, benefit of age relaxation was given to the respondent herein relying upon the judgment of Delhi High Court in Sachin Guptas case. Therefore, the first question for consideration is as to whether that judgment can be made applicable in the case of the respondent as well.8. A copy of the said judgment dated 28.08.2008 passed in Sachin Guptas case was produced before us and we have gone through it. On going through this judgment, one finds that, in that case, challenge was made to the Notification dated 13.07.2007, vide which Recruitment Rules for the appointment to the post of Assistant Teacher (Primary) in the Government of NCT, Delhi or Municipal Corporation of Delhi, as being unconstitutional, illegal and arbitrary. These rules were promulgated by exercising the power by virtue of proviso to Article 309 of the Constitution. Insofar as the Government of NCT, Delhi is concerned, it exercised power under Section 98 read with Section 480(2) of the Delhi Municipal Corporation Act, 1957, qua MCD. Vide these rules minimum and maximum eligible age for the candidates to the said post was fixed atyears respectively. However, before the promulgation of these Rules, as per the earlier Rules the upper age limit was 32 years for male candidates and 42 years for female candidates. The main ground of the challenge was that by notification of such Rules petitioners therein had lost their chance as there was legitimate expectation given to them that they would be eligible till the age of 32 years. It was argued that the prospectus of the two years Elementary Teachers Education course expressly professed that it was "carefully designed to prepare teachers at elementary level in Delhi" and contained a minimum and maximum age of enrolment as 17 and 30 years respectively, thereby representing that aspirants between 19 to 32 years would be eligible for appointment to the post of teachers in Delhi. The High Court rejected the aforesaid contention and even other contentions raised by the petitioners. It was further held that the Rules were statutory and had legislative character and such Rules could not be challenged on the ground of mala fides. It was also held that the doctrine of legitimate expectation has no application.The High Court also accepted the well recognised principle that it is the employers prerogative to decide the age limit and academic suitability of candidates which they wish to employ and so long as the same are not contradictory to the academic eligibility as prescribed by the NCTE Act, any challenge to the same, merely because it renders some candidates ineligible, ought to be rejected. Fixing of such age limit for a given post is a matter of policy as held by this Court in Union of India & Ors. v. Shivbachan Rai reported in 2001 (9) SCC 356. 10. After rejecting the contentions on merits and upholding the validity of the Recruitment Rules, the Court went into the issue of hardship because of sudden reduction in the upper age limit and only on that ground one time relaxation was given to the petitioners in the said petition. A direction was given to permit all those candidates who had completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination. Thus, this was one time relaxation given for the examination which was to be conducted in the year 2008, in order to ameliorate the hardship.11. Once, we understand the contours and scope of the judgment and directions, it becomes abundantly clear that the said judgment of the High Court in Sachin Guptas case cannot be made applicable for all times. The respondent herein was not the candidate in the recruitment to the said post in the year 2008. On the contrary, he applied for the post pursuant to the advertisement published in the year 2009. In the impugned judgment the High Court has failed to consider the aforesaid analysis of its earlier judgment in Sachin Guptas case. | 1 | 2,590 | 800 | ### 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:
considered only on production of prima facie proof as to such invalidating circumstances. The Court shall not assume that a subordinate legislative instruments is invalid for absence of competence or bona fides or fairness or reasonableness and cast the negative burden on the rule-making authority. It should be just the other way; the person who challenges the vires of a rule has to prove his challenge just as much as a person who challenges a legislative enactment. If he fails in such attempt the challenge can only be thrown out....."(emphasis supplied)47. In Khoday Distilleries Ltd. v. State of Karnataka reported in (1996) 10 SCC 304 para 13 it has been held that the test of the arbitrariness applicable to the delegated legislation is different from the one applicable to executive actions. The relevant portion of the said judgment is reproduced for ready reference:-"13. It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In the case of Indian Express Newspaper (Bombay) (P) Ltd. v. Union of India (SCR at p.243) this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; "unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary". Drawing a comparison between the law in England in India, the Court further observed that in England the judges would say, "Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires". In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it would not be said to be in conformity with the statute or that it offends Article 14 of the Constitution."48. Further, as the Rules are legislative in character they cannot be challenged on the grounds of malafides. In Capt. B.D. Gupta v. State of U.P. reported in 1991 Supp(1) SCC 1 para 1 of the Supreme Court held:-"17....If the Rules were framed for making regular appointments in the Civil Aviation Department, there was no reason whey they should have been confined only to three posts which included the post of Director. Secondly, he pointed out that whereas the post of Director was not a promotional one earlier and was, therefore, open to external candidates as well, it was made promotional to suit Captain Singh. These circumstances according to us do not prove the mala fides. Admittedly, the Rules are made under Article 309 of the Constitution of India and are, therefore, a piece of legislation. It is well settled that no legislation can be challenged on the ground of mala fides......"49. In our opinion, the doctrine of legitimate expectation, referred to by the petitioners, has no application to the present case as the Respondents have never represented or held out to any student entering into an ETE course, that he would be given employment with the Respondents. In fact, ETE is a professional training course and the candidates securing such degrees are free to pursue other career options all over India with other agencies as well. The course does not confer any vested rights or employment with either the Government or MCD. In view of the absence of any representation regarding employability with the Respondents alone upon completion of a qualifying course, the petitioners plea of legitimate expectation merits no acceptance."9. The High Court also accepted the well recognised principle that it is the employers prerogative to decide the age limit and academic suitability of candidates which they wish to employ and so long as the same are not contradictory to the academic eligibility as prescribed by the NCTE Act, any challenge to the same, merely because it renders some candidates ineligible, ought to be rejected. Fixing of such age limit for a given post is a matter of policy as held by this Court in Union of India & Ors. v. Shivbachan Rai reported in 2001 (9) SCC 356. 10. After rejecting the contentions on merits and upholding the validity of the Recruitment Rules, the Court went into the issue of hardship because of sudden reduction in the upper age limit and only on that ground one time relaxation was given to the petitioners in the said petition. A direction was given to permit all those candidates who had completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination. Thus, this was one time relaxation given for the examination which was to be conducted in the year 2008, in order to ameliorate the hardship.11. Once, we understand the contours and scope of the judgment and directions, it becomes abundantly clear that the said judgment of the High Court in Sachin Guptas case cannot be made applicable for all times. The respondent herein was not the candidate in the recruitment to the said post in the year 2008. On the contrary, he applied for the post pursuant to the advertisement published in the year 2009. In the impugned judgment the High Court has failed to consider the aforesaid analysis of its earlier judgment in Sachin Guptas case.
### Response:
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7. If one goes strictly by the eligibility conditions stipulated in the advertisement or the Rules for recruitment to the post of Teacher (Primary), it cannot be disputed that the upper age limit for consideration to appointment to the aforesaid post is 27 years. It means that any person who has attained the age of 27 years renders himself/herself ineligible to apply for the said post. Notwithstanding the same, benefit of age relaxation was given to the respondent herein relying upon the judgment of Delhi High Court in Sachin Guptas case. Therefore, the first question for consideration is as to whether that judgment can be made applicable in the case of the respondent as well.8. A copy of the said judgment dated 28.08.2008 passed in Sachin Guptas case was produced before us and we have gone through it. On going through this judgment, one finds that, in that case, challenge was made to the Notification dated 13.07.2007, vide which Recruitment Rules for the appointment to the post of Assistant Teacher (Primary) in the Government of NCT, Delhi or Municipal Corporation of Delhi, as being unconstitutional, illegal and arbitrary. These rules were promulgated by exercising the power by virtue of proviso to Article 309 of the Constitution. Insofar as the Government of NCT, Delhi is concerned, it exercised power under Section 98 read with Section 480(2) of the Delhi Municipal Corporation Act, 1957, qua MCD. Vide these rules minimum and maximum eligible age for the candidates to the said post was fixed atyears respectively. However, before the promulgation of these Rules, as per the earlier Rules the upper age limit was 32 years for male candidates and 42 years for female candidates. The main ground of the challenge was that by notification of such Rules petitioners therein had lost their chance as there was legitimate expectation given to them that they would be eligible till the age of 32 years. It was argued that the prospectus of the two years Elementary Teachers Education course expressly professed that it was "carefully designed to prepare teachers at elementary level in Delhi" and contained a minimum and maximum age of enrolment as 17 and 30 years respectively, thereby representing that aspirants between 19 to 32 years would be eligible for appointment to the post of teachers in Delhi. The High Court rejected the aforesaid contention and even other contentions raised by the petitioners. It was further held that the Rules were statutory and had legislative character and such Rules could not be challenged on the ground of mala fides. It was also held that the doctrine of legitimate expectation has no application.The High Court also accepted the well recognised principle that it is the employers prerogative to decide the age limit and academic suitability of candidates which they wish to employ and so long as the same are not contradictory to the academic eligibility as prescribed by the NCTE Act, any challenge to the same, merely because it renders some candidates ineligible, ought to be rejected. Fixing of such age limit for a given post is a matter of policy as held by this Court in Union of India & Ors. v. Shivbachan Rai reported in 2001 (9) SCC 356. 10. After rejecting the contentions on merits and upholding the validity of the Recruitment Rules, the Court went into the issue of hardship because of sudden reduction in the upper age limit and only on that ground one time relaxation was given to the petitioners in the said petition. A direction was given to permit all those candidates who had completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination. Thus, this was one time relaxation given for the examination which was to be conducted in the year 2008, in order to ameliorate the hardship.11. Once, we understand the contours and scope of the judgment and directions, it becomes abundantly clear that the said judgment of the High Court in Sachin Guptas case cannot be made applicable for all times. The respondent herein was not the candidate in the recruitment to the said post in the year 2008. On the contrary, he applied for the post pursuant to the advertisement published in the year 2009. In the impugned judgment the High Court has failed to consider the aforesaid analysis of its earlier judgment in Sachin Guptas case.
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UNION OF INDIA AND ORS Vs. PROBIR GHOSH AND ORS | Delhi High Court by an Order dated 03.10.2018. The petition for review filed by the Union of India was also dismissed on 05.04.2019. As against the order passed in the writ petition and the review petition, the Union of India and the Staff Selection Commission have come up with SLP(C) Nos.30408--30409 of 2019. 18. Leave granted in SLP(C) Nos.30408--30409 of 2019. Civil Appeal Nos.4586--4587 of 2018 19. Since the issue involved in these two appeals lies on a narrow compass, we shall take up these appeals first. 20. As we have indicated in paragraph 14 above, the respondent in this writ petition belongs to the Scheduled Tribe and is domiciled in Baksa District of Assam. In Annexure--XIII to the Recruitment Notification dated 03.12.2011, the border districts of Assam were divided into two categories. The border districts of Dhubri, Cachar & Karimganj were given Code No.01. The border districts of Baksa, Chirang, Kokrajhar & Udalguri were assigned Code No.02. Since the respondent belonged to Baksa District, he was entitled to be considered as a candidate belonging to the border districts of Assam with Code No.02. 21. Paragraph 2 of the Recruitment Notification stated that the state--wise and category--wise tentative number of vacancies to be filled up are indicated in the Appendix. Appendix--C to the Recruitment Notification indicated the vacancy position in respect of CT (GD) (male and female) of B.G. Districts of CAPFs. The relevant portion of Appendix--C to the Recruitment Notification, which relates to the two categories (Code Nos. 01 and 02) of the border districts of Assam are reproduced for easy reference as follows: State Districts falling in their area Border Security Force (Male) Border Security Force (Female) Assam Rifles (Male) INDO TIBETAN BORDER POLICE FORCE (MALE) Shashastra Seema Bal (male) G.Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total Assam Dhubri , Cachar, Karimgan j 83 42 11 19 155 20 10 3 4 37 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 103 52 14 23 192 Baksa, Chirang, Kokrajhar & Udalguri 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 42 21 6 9 78 42 21 6 9 78 22. The last portion of paragraph 1 of the Recruitment Notification indicated the importance of the domiciliary status. It reads as follows: State--wise vacancies are available for candidates domiciled in the State and reservation is also available for candidates domiciled in naxal and militancy affected areas and select border districts in each CAPFs. 23. Note-III under para 2 of the Recruitment Notification reads as follows: As the vacancies have been allotted to the concerned States/UTs, candidates are required to submit domicile certificates of the States indicated by them in the application at the time of the medical examination. 24. Paragraph 4(C) of the Recruitment Notification contained instructions regarding the process of certification and format of certificates. The relevant portion of paragraph 4C reads as follows: …Candidates belonging to the State/UT will only be considered for recruitment in their respective State/UT on production of valid Domicile Certificate issued by the competent authority so authorized by the concerned State/UT to prove their domiciliary status. Since the State of Assam is not issuing Domicile Certificate/PRC, candidates belonging to the state of Assam are not required to submit the same. However, their selection will be subject to verification of residential status from the concerned District Authorities. West Pakistani refugees who have settled in J & K but have not been given the status of J & K citizen of the State will be recruited without the condition of having a domicile certificate from the designated authority of the J & K State. 25. Admittedly the respondent in these two civil appeals belonged to the border district of Baksa which came under Code 02. As per Appendix--C to the Notification, the vacancies for the border districts coming under Code 02 of the State of Assam were nil in respect of BSF (Male and Female), Assam Rifles (Male) and ITBP (Male). Therefore, he could not have been considered for the vacancies earmarked for the border districts of Assam coming under Code 01. 26. But unfortunately the High Court, in the impugned order, proceeded on a curious reasoning that all border districts are liable to be treated alike and that once a person is found to belong to one border district, he is entitled to be considered in respect of all border districts. 27. The aforesaid reasoning of the High Court, if accepted, will tantamount to tampering with the Recruitment Notification. Once vacancies are earmarked separately for different categories of border districts, even in the Recruitment Notification, it is not possible to hold that all border districts are to be treated alike. Different considerations may weigh with the recruiting authorities for categorizing the border districts into two types. Therefore, the High Court was not justified in granting relief to the respondent on the ground that he must be considered as a person domiciled in the border district where vacancies were available, though he belonged to another border district, to which no vacancy was notified. 28. Relying upon one portion of paragraph 4(C) of the Recruitment Notification which we have extracted in paragraph 24 above (in bold letters), it is contended by the learned counsel for the respondent that when the State of Assam was admittedly not issuing domicile certificates, it is not proper to discriminate between 2 different categories of border districts. 29. But we are not impressed with the above argument. The requirement to produce a domicile certificate stands on a different footing from the categorization of border districts. Paragraph 4(C) of the Recruitment Notification dispenses with the requirement of certificate, in so far as the State of Assam is concerned. But it does not make the categorization of border districts inapplicable. | 1[ds]26. But unfortunately the High Court, in the impugned order, proceeded on a curious reasoning that all border districts are liable to be treated alike and that once a person is found to belong to one border district, he is entitled to be considered in respect of all border districts.27. The aforesaid reasoning of the High Court, if accepted, will tantamount to tampering with the Recruitment Notification. Once vacancies are earmarked separately for different categories of border districts, even in the Recruitment Notification, it is not possible to hold that all border districts are to be treated alike. Different considerations may weigh with the recruiting authorities for categorizing the border districts into two types. Therefore, the High Court was not justified in granting relief to the respondent on the ground that he must be considered as a person domiciled in the border district where vacancies were available, though he belonged to another border district, to which no vacancy was notified.29. But we are not impressed with the above argument. The requirement to produce a domicile certificate stands on a different footing from the categorization of border districts. Paragraph 4(C) of the Recruitment Notification dispenses with the requirement of certificate, in so far as the State of Assam is concerned. But it does not make the categorization of border districts inapplicable.36. Unfortunately, the respondents in these appeals indicated preference only to one service. They did not secure more than or equal to the cut-off mark for that service in the category to which they belonged. It is true that candidates who secured lesser marks than these respondents have been selected in other services, but it was because of the expression of their openness for appointment to any service, even at the time of submitting the application. The respondents have become wiser after the event.37. The High Court proceeded on the basis that the candidates cannot be pinned down to the preference indicated in the application form and that appointing persons who secured lesser marks and rejecting those who secured higher marks on this ground, would be violative of Article 14 of the Constitution.38. In doing so, the High Court clearly overlooked Column No.16 under paragraph 4 of Annexure--II, to the Notification. This is clearly erroneous.40. In Ram Bilash Ram (supra), the High Court of Patna interpreted the word preference to mean a mere indication of a choice and held that the same cannot be taken to indicate the rejection of other options. The relevant portion of the judgment reads as follows:-11. So, the ordinary meaning of preference is to give priority to one over another. It would mean that by giving preference to one the person shows his liking for it over the others. This does not mean that by giving preference or priority to one, he shows his dislike for others and opts against them. So, if the appellant gave preference to some services/posts, it cannot be said that he has withdrawn his candidature for the rest of the services/posts. Any contrary inference drawn on the basis of preference list would be opposed to the principle of natural justice. If one says that her prefers a five-roomed house, it cannot be interpreted to mean that he would not accept a four-roomed house if no five- roomed house is made available to him. The term preference always indicates that the person has a choice to make. It cannot be interpreted to mean that if he is not offered the thing for which he has shown his preference, he will not accept the other things offered to him for which also he was otherwise eligible and for which also he was candidate from the very beginning. If the applicant had no choice left with him, as he was not found suitable for the services/posts for which he had shown preference, it cannot be said that he has abandoned his claim for the rest of the services, as it cannot be presumed that he would prefer to remain unemployed, if he did not get services/posts of his choice.But in paragraph 12 of the said decision itself, the High Court made it clear that it would have been a different matter had there been a rule or instruction to the contrary. In the case on hand the instructions were very clear and hence the decision of the Patna High Court will not apply.42. As a matter of fact, a similar question came up for consideration before this Court in Union of India vs. M.V.V.S Murthy (1987) Supp.SCC 371. The candidate in that case preferred Indian Administrative Service in the Civil Services Examination, 1983. He was actually selected for IPS. He did not accept it but chose to appear for the next year Examination. When he could not make it in the next year examination, he gave a representation seeking at least to be allotted to IPS for the CSE 83 batch on the ground that candidates who had secured lesser marks than him have been allotted to IPS in CSE 1983. When it was not accepted, he approached the court, but this Court rejected his claim.43. Paragraph 5 of the said decision clinches the issue and it reads as follows:-5. Indisputably the respondent confined his prefer- ence only to the Indian Administrative Service. The note appearing below column 22 in the application form reads thus:In respect of the services/posts not covered by the entries above, it will be assumed that you have an equal preference for those services/posts. You will therefore, be considered for any of those services if you cannot be allotted to the services of your preference.The real meaning of this note appears to us to be that if preferences given by the candidate are not available to be accommodated on the basis of the results of the can- didates preference in the selection examination, in- stead of being rejected he would be available to be con- sidered for the other service. As already pointed out, the Civil Services Examination is a combined examina- tion for several services and when a vacancy is not available within the field of the candidates choice, it is open to the Central Government to consider the candi- date for other services. The effect of this note is not that preferences given by a candidate securing a place lower to the respondent would not be entitled to his preference because he has been placed below the re- spondent in ranking. If ranking alone is to be the test, preferences would have no meaning. On the other hand, the procedure that preferences are accept- able with reference to the position in the final list till va- cancies in the services preferred are exhausted is the most logical one and meets the requirements of the scheme. Merely because the respondent was placed at the 280th place in the merit list and someone else placed at No. 291 was being offered the Indian Police Service in keeping with his preference, would not give the respondent any cause of action…44. Therefore, the High Court was clearly wrong in granting relief to the respondents (i) by diluting the significance of preferences given by candidates; and (ii) in nullifying the effect of the instructions contained in Column No.16 of paragraph 4 of Annexure--II to the Recruitment Notification.48. It is true that the power to issue caste certificates vests with the officers of the State Government and that there is no uniformity in this regard. Therefore, some leverage has to be given.51. But we do not know whether what is produced before us as Annexure R--8 along with I.A.No.76255 of 2018 was the caste certificate actually produced by that respondent. If this is the certificate that he had actually enclosed to his application, there would have been no occasion for the High Court to examine whether the objection relates to substance or mere form. At this level, in an appeal before the highest Court, it is not possible for us to look into this question of fact. This is especially so since the recruitment relates to uniformed services, where physical fitness of the incumbents is of utmost importance. A period of more than 10 years have now passed from the date of Notification. Therefore, at this stage it is not possible to enter into disputed questions of fact and grant relief to those two respondents.52. In view of the above, these appeals are also liable to be allowed.53. In normal circumstances, the above argument would have really appealed to us as it is legally well founded. But in this case even admittedly some of the petitioners who approached the court have been granted relief, due to the revision of Merit List. It means that each of the candidates who were before the High Court had some distinguishable feature and some of them got the relief even from the appellants. Therefore, the contention that the appellants cannot blow hot and cold in respect of a few candidates may not hold water. | 1 | 2,626 | 1,645 | ### 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:
Delhi High Court by an Order dated 03.10.2018. The petition for review filed by the Union of India was also dismissed on 05.04.2019. As against the order passed in the writ petition and the review petition, the Union of India and the Staff Selection Commission have come up with SLP(C) Nos.30408--30409 of 2019. 18. Leave granted in SLP(C) Nos.30408--30409 of 2019. Civil Appeal Nos.4586--4587 of 2018 19. Since the issue involved in these two appeals lies on a narrow compass, we shall take up these appeals first. 20. As we have indicated in paragraph 14 above, the respondent in this writ petition belongs to the Scheduled Tribe and is domiciled in Baksa District of Assam. In Annexure--XIII to the Recruitment Notification dated 03.12.2011, the border districts of Assam were divided into two categories. The border districts of Dhubri, Cachar & Karimganj were given Code No.01. The border districts of Baksa, Chirang, Kokrajhar & Udalguri were assigned Code No.02. Since the respondent belonged to Baksa District, he was entitled to be considered as a candidate belonging to the border districts of Assam with Code No.02. 21. Paragraph 2 of the Recruitment Notification stated that the state--wise and category--wise tentative number of vacancies to be filled up are indicated in the Appendix. Appendix--C to the Recruitment Notification indicated the vacancy position in respect of CT (GD) (male and female) of B.G. Districts of CAPFs. The relevant portion of Appendix--C to the Recruitment Notification, which relates to the two categories (Code Nos. 01 and 02) of the border districts of Assam are reproduced for easy reference as follows: State Districts falling in their area Border Security Force (Male) Border Security Force (Female) Assam Rifles (Male) INDO TIBETAN BORDER POLICE FORCE (MALE) Shashastra Seema Bal (male) G.Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total Assam Dhubri , Cachar, Karimgan j 83 42 11 19 155 20 10 3 4 37 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 103 52 14 23 192 Baksa, Chirang, Kokrajhar & Udalguri 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 42 21 6 9 78 42 21 6 9 78 22. The last portion of paragraph 1 of the Recruitment Notification indicated the importance of the domiciliary status. It reads as follows: State--wise vacancies are available for candidates domiciled in the State and reservation is also available for candidates domiciled in naxal and militancy affected areas and select border districts in each CAPFs. 23. Note-III under para 2 of the Recruitment Notification reads as follows: As the vacancies have been allotted to the concerned States/UTs, candidates are required to submit domicile certificates of the States indicated by them in the application at the time of the medical examination. 24. Paragraph 4(C) of the Recruitment Notification contained instructions regarding the process of certification and format of certificates. The relevant portion of paragraph 4C reads as follows: …Candidates belonging to the State/UT will only be considered for recruitment in their respective State/UT on production of valid Domicile Certificate issued by the competent authority so authorized by the concerned State/UT to prove their domiciliary status. Since the State of Assam is not issuing Domicile Certificate/PRC, candidates belonging to the state of Assam are not required to submit the same. However, their selection will be subject to verification of residential status from the concerned District Authorities. West Pakistani refugees who have settled in J & K but have not been given the status of J & K citizen of the State will be recruited without the condition of having a domicile certificate from the designated authority of the J & K State. 25. Admittedly the respondent in these two civil appeals belonged to the border district of Baksa which came under Code 02. As per Appendix--C to the Notification, the vacancies for the border districts coming under Code 02 of the State of Assam were nil in respect of BSF (Male and Female), Assam Rifles (Male) and ITBP (Male). Therefore, he could not have been considered for the vacancies earmarked for the border districts of Assam coming under Code 01. 26. But unfortunately the High Court, in the impugned order, proceeded on a curious reasoning that all border districts are liable to be treated alike and that once a person is found to belong to one border district, he is entitled to be considered in respect of all border districts. 27. The aforesaid reasoning of the High Court, if accepted, will tantamount to tampering with the Recruitment Notification. Once vacancies are earmarked separately for different categories of border districts, even in the Recruitment Notification, it is not possible to hold that all border districts are to be treated alike. Different considerations may weigh with the recruiting authorities for categorizing the border districts into two types. Therefore, the High Court was not justified in granting relief to the respondent on the ground that he must be considered as a person domiciled in the border district where vacancies were available, though he belonged to another border district, to which no vacancy was notified. 28. Relying upon one portion of paragraph 4(C) of the Recruitment Notification which we have extracted in paragraph 24 above (in bold letters), it is contended by the learned counsel for the respondent that when the State of Assam was admittedly not issuing domicile certificates, it is not proper to discriminate between 2 different categories of border districts. 29. But we are not impressed with the above argument. The requirement to produce a domicile certificate stands on a different footing from the categorization of border districts. Paragraph 4(C) of the Recruitment Notification dispenses with the requirement of certificate, in so far as the State of Assam is concerned. But it does not make the categorization of border districts inapplicable.
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rest of the services/posts. Any contrary inference drawn on the basis of preference list would be opposed to the principle of natural justice. If one says that her prefers a five-roomed house, it cannot be interpreted to mean that he would not accept a four-roomed house if no five- roomed house is made available to him. The term preference always indicates that the person has a choice to make. It cannot be interpreted to mean that if he is not offered the thing for which he has shown his preference, he will not accept the other things offered to him for which also he was otherwise eligible and for which also he was candidate from the very beginning. If the applicant had no choice left with him, as he was not found suitable for the services/posts for which he had shown preference, it cannot be said that he has abandoned his claim for the rest of the services, as it cannot be presumed that he would prefer to remain unemployed, if he did not get services/posts of his choice.But in paragraph 12 of the said decision itself, the High Court made it clear that it would have been a different matter had there been a rule or instruction to the contrary. In the case on hand the instructions were very clear and hence the decision of the Patna High Court will not apply.42. As a matter of fact, a similar question came up for consideration before this Court in Union of India vs. M.V.V.S Murthy (1987) Supp.SCC 371. The candidate in that case preferred Indian Administrative Service in the Civil Services Examination, 1983. He was actually selected for IPS. He did not accept it but chose to appear for the next year Examination. When he could not make it in the next year examination, he gave a representation seeking at least to be allotted to IPS for the CSE 83 batch on the ground that candidates who had secured lesser marks than him have been allotted to IPS in CSE 1983. When it was not accepted, he approached the court, but this Court rejected his claim.43. Paragraph 5 of the said decision clinches the issue and it reads as follows:-5. Indisputably the respondent confined his prefer- ence only to the Indian Administrative Service. The note appearing below column 22 in the application form reads thus:In respect of the services/posts not covered by the entries above, it will be assumed that you have an equal preference for those services/posts. You will therefore, be considered for any of those services if you cannot be allotted to the services of your preference.The real meaning of this note appears to us to be that if preferences given by the candidate are not available to be accommodated on the basis of the results of the can- didates preference in the selection examination, in- stead of being rejected he would be available to be con- sidered for the other service. As already pointed out, the Civil Services Examination is a combined examina- tion for several services and when a vacancy is not available within the field of the candidates choice, it is open to the Central Government to consider the candi- date for other services. The effect of this note is not that preferences given by a candidate securing a place lower to the respondent would not be entitled to his preference because he has been placed below the re- spondent in ranking. If ranking alone is to be the test, preferences would have no meaning. On the other hand, the procedure that preferences are accept- able with reference to the position in the final list till va- cancies in the services preferred are exhausted is the most logical one and meets the requirements of the scheme. Merely because the respondent was placed at the 280th place in the merit list and someone else placed at No. 291 was being offered the Indian Police Service in keeping with his preference, would not give the respondent any cause of action…44. Therefore, the High Court was clearly wrong in granting relief to the respondents (i) by diluting the significance of preferences given by candidates; and (ii) in nullifying the effect of the instructions contained in Column No.16 of paragraph 4 of Annexure--II to the Recruitment Notification.48. It is true that the power to issue caste certificates vests with the officers of the State Government and that there is no uniformity in this regard. Therefore, some leverage has to be given.51. But we do not know whether what is produced before us as Annexure R--8 along with I.A.No.76255 of 2018 was the caste certificate actually produced by that respondent. If this is the certificate that he had actually enclosed to his application, there would have been no occasion for the High Court to examine whether the objection relates to substance or mere form. At this level, in an appeal before the highest Court, it is not possible for us to look into this question of fact. This is especially so since the recruitment relates to uniformed services, where physical fitness of the incumbents is of utmost importance. A period of more than 10 years have now passed from the date of Notification. Therefore, at this stage it is not possible to enter into disputed questions of fact and grant relief to those two respondents.52. In view of the above, these appeals are also liable to be allowed.53. In normal circumstances, the above argument would have really appealed to us as it is legally well founded. But in this case even admittedly some of the petitioners who approached the court have been granted relief, due to the revision of Merit List. It means that each of the candidates who were before the High Court had some distinguishable feature and some of them got the relief even from the appellants. Therefore, the contention that the appellants cannot blow hot and cold in respect of a few candidates may not hold water.
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Custodian Of Textile Undertaking,Bombay Vs. Hall & Anderson Ltd | to the said mill was not a part of the textile undertaking. However, this Court came to the conclusion that as a result of modernization resulted in a formation of mill of a much smaller size, the land had become surplus. It was lying vacant. It was not in dispute that the surplus land was under the ownership of the textile undertaking. It was in fact the land on which the different division of the old mill had been functioning. Thus, this Court held that the land was an integral part of the textile undertaking. In the instant case, position is otherwise. The textile mill has been under the ownership of M/s Hall & Anderson at Calcutta. 12. In M/s Doypack Systems Pvt. Ltd. v. Union of India & Ors., AIR 1988 SC 782 , this Court while interpreting the provisions of Section 3 of the Swadeshi Cotton Mills (Acquisition and Transfer of Undertaking) Act, 1986, observed that the provisions of such a statute require broad and liberal interpretation in consonance and conformity with the principles enshrined in Articles 39B and 39C of the Constitution. In the said case, the issue was whether shares purchased using funds of the textile company could be held to be covered under the terms of said provision. The ratio of the said case has no application in the present case, as, admittedly, in that case the shares in question had been purchased from the funds of the textile company. In the instant case, the fact situation is the other way around. M/s Shree Madhusudan Mills Ltd., Bombay, had been purchased using funds generated from the premises at Calcutta. 13. We have gone through the provisions of the Act 1995. Section 8 thereof, provides for payment of amount to owners of textile undertaking: "8. Payment of amount to owners of textile undertakings - The owner of every textile undertaking shall be given by the Central Government, in cash and in the manner specified in Chapter VI, for the transfer to, and vesting in, it, under sub-section (1) of section 3, of such textile undertaking and the right, title and interest of the owner in relation to such textile undertaking, an amount equal to the amount specified against it in the corresponding entry in column (4) of the First Schedule."However, the column (4) of the First Schedule, so far as the present textile industry is concerned, reads as under:Sl.No.Name of the textile undertakingName of the ownerAmount No. (in rupees)(1) (2) (3) (4)11. Shree Madhusudan Pandurang Budhkar BombayMills, Shree Madhusudan Marg, Mills Ltd., 31, Chowringhee Road,Calcutta – 162,70,85,000From the above, it is evident that what has been acquired is the property at Bombay. Column 3 makes it clear that it was under the ownership of M/s Shree Madhusudan Mills Ltd., Calcutta, and after the property acquired at Bombay, a sum of Rs.2,70,85,000/- had been paid as compensation. No compensation has been paid for the premises at Calcutta." 14. The relevant part of the judgment in Sitaram Mills (supra) reads as under: "The High Court completely ignored the fact that all the assets of the company were held in relation to the textile business. The company required all its real estate in the nineteenth century when it was formed for carrying on textile business and, admittedly, no new assets had been acquired by it thereafter.........Even for determining the total compensation to be paid on nationalization, the Task Force takes values into account the total surplus lands of the company and does not exclude any land belonging to the so-called Real Estate Division......" Therefore, it is evident that in the said case, the land appurtenant to the textile undertaking and belonging to it, was converted into real estate and even on nationalisation, for the purpose of determining the compensation, the said land had been included in the assets. In the instant case, a contrary picture emerges as explained hereinabove. More so, the chart quoted from the Act, does not show that for determining the compensation, premises property at Calcutta had also been included. As the premises in Calcutta does not form part of or has been appurtenant to the textile industry, the judgment in M/s Doypack Systems Pvt. Ltd. (supra) is also distinguishable. 15. This Court in Minerva Mills Ltd. v. Union of India, AIR 1986 SC 2030 , dealt with judgment of this Court in Sitaram Mills (supra) and held as under: "25. The learned Counsel for the petitioners has placed reliance upon an observation of this Court in National Textile Corpn. Ltd. v. Sitaram Mills Ltd. The question that was involved in that case was whether surplus land in the precinct of the taken-over undertaking was an asset in relation to the undertaking. It was observed: (SCC p. 133 bottom) "The test is whether it was held for the benefit of, and utilised for, the textile mill". Relying upon this observation, it is contended by the learned Counsel for the petitioners that as the vacant land, in the instant case, has not been utilised for the undertaking, it is not an asset of the undertaking. We do not think that in Sitaram Mills case this Court really meant to lay down a proposition that in order that a piece of land be considered as the asset of the textile undertaking, it must be held for the benefit of and utilised for the undertaking in question. Can it be said that a piece of land which is held for the benefit of but not utilised for the textile undertaking, as in the instant case, is not an asset of the undertaking? The answer must be in the negative. In Sitaram Milks case that observation was made in the context of facts of that case, namely, that the surplus land was held for the benefit of and also utilised for the textile undertaking." (Emphasis added) 16. In view of the above, we do not see any cogent reason not to concur with the view expressed by the High Court. | 0[ds]the respondent initially started the business of selling various goods and articles from the departmental store operating from the premises under the name and style of M/s Hall & Anderson. The Company purchased the textile mill in Bombay on 12.6.1950 and commenced the additional business of manufacturing and selling cotton textile. The departmental store continued its business upto 1976. Subsequent thereto, the building was developed as an income yielding asset and as such started the business of letting out various portions of the said building to different business organizations. The total area of the premises is about 4 acres and on an area of 345 sq. ft. the registered office of the company is situated. The business of textile mill remained completely separate from the premises business of letting out. They had not been interconnected and the premises business has no connection with running the textile undertakings. The accounts of the property business were separately and independently maintained. Staff engaged in the property business were also not connected. They had no concern with the working of the textile mill, except the Secretary of the Company, as he had to be the same person in view of the requirement of the provisions of Companies Act, 1961. No amount for the textile mill business had ever been borrowed from any financial institution or utilized for its running. Profit and Loss accounts of both the business have been prepared separately in spite of amalgamation since 1970. The books of account had been maintained for both the business separately. The premises had been mortgaged with the Central Bank of India, Bombay by deposit of title deeds with a view to secure advance granted by the Central Bank of India to the Company for the purpose of running the textile mill, but it stood only as a security. It has not become an integral part of the textile industries or had any nexus or relation with the working of textile mill. In the counter affidavit, reference has been made to the report of the Committee that disposal of immovable property of the Company, i.e., premises would provide substantial amount for making the undertaking viable within a few years provided, the said premises was sold. Further reference had been made to the observations made by the task force under the terms of reference that Company would be viable with the sale ofdo not see any cogent reason not to concur with the view expressed by the High Court. | 0 | 2,921 | 444 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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to the said mill was not a part of the textile undertaking. However, this Court came to the conclusion that as a result of modernization resulted in a formation of mill of a much smaller size, the land had become surplus. It was lying vacant. It was not in dispute that the surplus land was under the ownership of the textile undertaking. It was in fact the land on which the different division of the old mill had been functioning. Thus, this Court held that the land was an integral part of the textile undertaking. In the instant case, position is otherwise. The textile mill has been under the ownership of M/s Hall & Anderson at Calcutta. 12. In M/s Doypack Systems Pvt. Ltd. v. Union of India & Ors., AIR 1988 SC 782 , this Court while interpreting the provisions of Section 3 of the Swadeshi Cotton Mills (Acquisition and Transfer of Undertaking) Act, 1986, observed that the provisions of such a statute require broad and liberal interpretation in consonance and conformity with the principles enshrined in Articles 39B and 39C of the Constitution. In the said case, the issue was whether shares purchased using funds of the textile company could be held to be covered under the terms of said provision. The ratio of the said case has no application in the present case, as, admittedly, in that case the shares in question had been purchased from the funds of the textile company. In the instant case, the fact situation is the other way around. M/s Shree Madhusudan Mills Ltd., Bombay, had been purchased using funds generated from the premises at Calcutta. 13. We have gone through the provisions of the Act 1995. Section 8 thereof, provides for payment of amount to owners of textile undertaking: "8. Payment of amount to owners of textile undertakings - The owner of every textile undertaking shall be given by the Central Government, in cash and in the manner specified in Chapter VI, for the transfer to, and vesting in, it, under sub-section (1) of section 3, of such textile undertaking and the right, title and interest of the owner in relation to such textile undertaking, an amount equal to the amount specified against it in the corresponding entry in column (4) of the First Schedule."However, the column (4) of the First Schedule, so far as the present textile industry is concerned, reads as under:Sl.No.Name of the textile undertakingName of the ownerAmount No. (in rupees)(1) (2) (3) (4)11. Shree Madhusudan Pandurang Budhkar BombayMills, Shree Madhusudan Marg, Mills Ltd., 31, Chowringhee Road,Calcutta – 162,70,85,000From the above, it is evident that what has been acquired is the property at Bombay. Column 3 makes it clear that it was under the ownership of M/s Shree Madhusudan Mills Ltd., Calcutta, and after the property acquired at Bombay, a sum of Rs.2,70,85,000/- had been paid as compensation. No compensation has been paid for the premises at Calcutta." 14. The relevant part of the judgment in Sitaram Mills (supra) reads as under: "The High Court completely ignored the fact that all the assets of the company were held in relation to the textile business. The company required all its real estate in the nineteenth century when it was formed for carrying on textile business and, admittedly, no new assets had been acquired by it thereafter.........Even for determining the total compensation to be paid on nationalization, the Task Force takes values into account the total surplus lands of the company and does not exclude any land belonging to the so-called Real Estate Division......" Therefore, it is evident that in the said case, the land appurtenant to the textile undertaking and belonging to it, was converted into real estate and even on nationalisation, for the purpose of determining the compensation, the said land had been included in the assets. In the instant case, a contrary picture emerges as explained hereinabove. More so, the chart quoted from the Act, does not show that for determining the compensation, premises property at Calcutta had also been included. As the premises in Calcutta does not form part of or has been appurtenant to the textile industry, the judgment in M/s Doypack Systems Pvt. Ltd. (supra) is also distinguishable. 15. This Court in Minerva Mills Ltd. v. Union of India, AIR 1986 SC 2030 , dealt with judgment of this Court in Sitaram Mills (supra) and held as under: "25. The learned Counsel for the petitioners has placed reliance upon an observation of this Court in National Textile Corpn. Ltd. v. Sitaram Mills Ltd. The question that was involved in that case was whether surplus land in the precinct of the taken-over undertaking was an asset in relation to the undertaking. It was observed: (SCC p. 133 bottom) "The test is whether it was held for the benefit of, and utilised for, the textile mill". Relying upon this observation, it is contended by the learned Counsel for the petitioners that as the vacant land, in the instant case, has not been utilised for the undertaking, it is not an asset of the undertaking. We do not think that in Sitaram Mills case this Court really meant to lay down a proposition that in order that a piece of land be considered as the asset of the textile undertaking, it must be held for the benefit of and utilised for the undertaking in question. Can it be said that a piece of land which is held for the benefit of but not utilised for the textile undertaking, as in the instant case, is not an asset of the undertaking? The answer must be in the negative. In Sitaram Milks case that observation was made in the context of facts of that case, namely, that the surplus land was held for the benefit of and also utilised for the textile undertaking." (Emphasis added) 16. In view of the above, we do not see any cogent reason not to concur with the view expressed by the High Court.
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0
### Explanation:
the respondent initially started the business of selling various goods and articles from the departmental store operating from the premises under the name and style of M/s Hall & Anderson. The Company purchased the textile mill in Bombay on 12.6.1950 and commenced the additional business of manufacturing and selling cotton textile. The departmental store continued its business upto 1976. Subsequent thereto, the building was developed as an income yielding asset and as such started the business of letting out various portions of the said building to different business organizations. The total area of the premises is about 4 acres and on an area of 345 sq. ft. the registered office of the company is situated. The business of textile mill remained completely separate from the premises business of letting out. They had not been interconnected and the premises business has no connection with running the textile undertakings. The accounts of the property business were separately and independently maintained. Staff engaged in the property business were also not connected. They had no concern with the working of the textile mill, except the Secretary of the Company, as he had to be the same person in view of the requirement of the provisions of Companies Act, 1961. No amount for the textile mill business had ever been borrowed from any financial institution or utilized for its running. Profit and Loss accounts of both the business have been prepared separately in spite of amalgamation since 1970. The books of account had been maintained for both the business separately. The premises had been mortgaged with the Central Bank of India, Bombay by deposit of title deeds with a view to secure advance granted by the Central Bank of India to the Company for the purpose of running the textile mill, but it stood only as a security. It has not become an integral part of the textile industries or had any nexus or relation with the working of textile mill. In the counter affidavit, reference has been made to the report of the Committee that disposal of immovable property of the Company, i.e., premises would provide substantial amount for making the undertaking viable within a few years provided, the said premises was sold. Further reference had been made to the observations made by the task force under the terms of reference that Company would be viable with the sale ofdo not see any cogent reason not to concur with the view expressed by the High Court.
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Commissioner Of Income-Tax, Bombay City-1 Vs. Godavari Sugar Mills Ltd | permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." It is, indeed, true that as a result of the order of the Income-tax Officer there is no factual distribution of dividend but it is only a fictional or notional distribution of dividend which was not, in fact, received by the shareholders. The Section merely enacts that notional dividend is deemed to have been distributed as at the date of the Annual General Meeting. but even for bringing into existence that legal fiction there must be no statutory prohibition as the Ordinance in the present case. 4. We proceed to consider the next contention of the appellant that S. 13 of the 1949 Act repealed the Ordinance completely the effect of this Section was that the Ordinance was obliterated from the Statute Book as if it never existed and, therefore, there was no bar in the way of the Income-tax Officer to make the order on March 11, 1955. Section 13 of the 1949 Act provides follows:"13 (1). The Public Companies (Limitation Dividends) Ordinance 1948 (XXIX 1948) is hereby repealed. (2) Notwithstanding such repeal, any rules made, action taken or thing done in exercise of any power conferred by or under the said Ordinance shall be deemed to have been made, taken or done in exercise of the powers conferred by or under this Act as if this Act had come into force on the 29th day of October 1948." We are unable to accept this argument as correct. In the first place, the repeal of the Ordinance under S. 13 of the 1949 Act is immaterial for, as we have already stated, Section 23A has created a fiction of distribution of the undistributed income as dividend and the Section further states that it would be deemed as if it was distributed on the date of the Annual General Meeting. Since the notional distribution contemplated by Section 23A of the Act is as if the notional distribution took place at the date of the Annual General Meeting it is the law which prevailed as on the date of the Annual General Meeting which has to be taken into account in considering the issue as to the legal validity of the order made by the Income-tax Officer. In the second place, Mr. S. T. Desai is not right in his contention that the effect of S. 13 of the 1949 Act is to obliterate the Ordinance completely from the Statute Book Section 6 of the General Clauses Act (Act 10 of 1897) states as follows:"6. Where this Act, or any Central Act or Regulation 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, accrued 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 or Regulation had not been passed." The reason for enacting S. 6 of the General Clauses Act has been described by this Court in State of Punjab v. Mohar Singh, (1955) 1 SCR 893 at p. 897: (AIR 1955 SC 84 at p. 87) as follows:Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law. A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right. To obviate such results a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. Later on, to dispense with the necessity of having to insert a saving clause on each occasion, S. 38 (2) was inserted in the Interpretation Act of 1889 which provides that a repeal, unless the contrary intention appears does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the General Clauses Act, as is well known is on the same lines as S. 38 (2) of the Interpretation Act of England." Section 13 of the 1949 Act is almost identical in language with S. 11 of Punjab Act XII of 1948 which was the subject-matter of consideration in State of Punjab v. Mohar Singh, (1955) 1 SCR 893 at p. 897: (AIR 1955 SC 34 at p. 87), and for the reasons given by this Court in that case the provisions of S. 6 (c), (d) and (e) of the General Clauses Act are applicable to this case since there is no contrary intention appearing in the repealing statute. Mr. S. T. Desai is, therefore, unable to make good his submission on this aspect of the case. | 0[ds]It is not, in our opinion, necessary to express any concluded opinion on this aspect of the case, because we consider that, in any event, in view of the fact that the Ordinance was in force on the date of the holding of the Annual General Meeting of the respondent thex Officer had no power to pass any order under S. 23A of the Act. The Ordinance was in force on December 30, 1948 on which date the Annual General Meeting of the respondent took place and a sum of Rs. 3,68,433 was declared as dividend. Section 23A provides that on the fulfilment of certain conditions set out therein thex Officer shall make an order in writing that the undistributed portion of the assessable income of the respondent of the previous year as computed for income tax purposes and reduced by the amount ofx and super tax "shall be deemed to have been distributed as dividend amongst the shareholders as at the date of the General Meeting aforesaid." It is clear therefore that the order which the Income tax Officer is empowered to make under S. 23A of the Act is that the undistributed income shall be deemed to have been distributed amongst the shareholders "as at the date of the Annual General Meeting". Now the question is whether it was legally permissible for thex Officer to make the order which he has made on March 11, 1955 in the present case. The legal fiction as enacted under S. 23A of the Act is that the undistributed portion of the assessable income is deemed to have been distributed as dividend amongst the shareholders as at the date of the Annual General Meeting. In other words, the notional distribution is not by thex Officer but is by the Company itself at its Annual General Meeting. Since the provisions of the Ordinance imposed the restriction on the declaration of dividend beyond a particular limit that restriction will equally be binding for thex Officer; and if the respondent prevented from declaring a higher dividend than that declared on the date of the Annual General Meeting, thex Officer would be likewise prohibited by the Ordinance from passing an order that a higher dividend than that actually declared shall be deemed to have been declared at the date of the respondents Annual General Meeting. To put it differently, if in actuality a higher dividend could not lawfully have been declared by the respondent, thex Officer could not pass an order that such higher dividend should be deemed to have been declared, for the deemed declaration will suffer from the same legal restrictions which an actual declaration is subject to. In our opinion, the prohibition imposed by S. 3 of the Ordinance applies not only to the actual dividend declared but also to notional dividend deemed to have been declared under Section 23A of the Act. There is a manifest repugnancy between the provisions of the Ordinance and of S. 23A of the Act and it must be taken that there is an implied repeal of S. 23A of the Act to the extent of that repugnancy created by S. 3 of the Ordinance and so long as the Ordinance remains in force. In view of the provisions of Ss. 3 and 12 of the Ordinance the fiction created by S. 23A cannot, therefore, be brought into existence and thex Officer cannot pass an order under the provisions of that SectionIt is, indeed, true that as a result of the order of thex Officer there is no factual distribution of dividend but it is only a fictional or notional distribution of dividend which was not, in fact, received by the shareholders. The Section merely enacts that notional dividend is deemed to have been distributed as at the date of the Annual General Meeting. but even for bringing into existence that legal fiction there must be no statutory prohibition as the Ordinance in the present caseWe are unable to accept this argument as correct. In the first place, the repeal of the Ordinance under S. 13 of the 1949 Act is immaterial for, as we have already stated, Section 23A has created a fiction of distribution of the undistributed income as dividend and the Section further states that it would be deemed as if it was distributed on the date of the Annual General Meeting. Since the notional distribution contemplated by Section 23A of the Act is as if the notional distribution took place at the date of the Annual General Meeting it is the law which prevailed as on the date of the Annual General Meeting which has to be taken into account in considering the issue as to the legal validity of the order made by thex Officer. In the second place, Mr. S. T. Desai is not right in his contention that the effect of S. 13 of the 1949 Act is to obliterate the Ordinance completely from the Statute Book Section 6 of the General Clauses Act (Act 10 of 1897) | 0 | 3,273 | 892 | ### 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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permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." It is, indeed, true that as a result of the order of the Income-tax Officer there is no factual distribution of dividend but it is only a fictional or notional distribution of dividend which was not, in fact, received by the shareholders. The Section merely enacts that notional dividend is deemed to have been distributed as at the date of the Annual General Meeting. but even for bringing into existence that legal fiction there must be no statutory prohibition as the Ordinance in the present case. 4. We proceed to consider the next contention of the appellant that S. 13 of the 1949 Act repealed the Ordinance completely the effect of this Section was that the Ordinance was obliterated from the Statute Book as if it never existed and, therefore, there was no bar in the way of the Income-tax Officer to make the order on March 11, 1955. Section 13 of the 1949 Act provides follows:"13 (1). The Public Companies (Limitation Dividends) Ordinance 1948 (XXIX 1948) is hereby repealed. (2) Notwithstanding such repeal, any rules made, action taken or thing done in exercise of any power conferred by or under the said Ordinance shall be deemed to have been made, taken or done in exercise of the powers conferred by or under this Act as if this Act had come into force on the 29th day of October 1948." We are unable to accept this argument as correct. In the first place, the repeal of the Ordinance under S. 13 of the 1949 Act is immaterial for, as we have already stated, Section 23A has created a fiction of distribution of the undistributed income as dividend and the Section further states that it would be deemed as if it was distributed on the date of the Annual General Meeting. Since the notional distribution contemplated by Section 23A of the Act is as if the notional distribution took place at the date of the Annual General Meeting it is the law which prevailed as on the date of the Annual General Meeting which has to be taken into account in considering the issue as to the legal validity of the order made by the Income-tax Officer. In the second place, Mr. S. T. Desai is not right in his contention that the effect of S. 13 of the 1949 Act is to obliterate the Ordinance completely from the Statute Book Section 6 of the General Clauses Act (Act 10 of 1897) states as follows:"6. Where this Act, or any Central Act or Regulation 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, accrued 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 or Regulation had not been passed." The reason for enacting S. 6 of the General Clauses Act has been described by this Court in State of Punjab v. Mohar Singh, (1955) 1 SCR 893 at p. 897: (AIR 1955 SC 84 at p. 87) as follows:Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law. A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right. To obviate such results a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. Later on, to dispense with the necessity of having to insert a saving clause on each occasion, S. 38 (2) was inserted in the Interpretation Act of 1889 which provides that a repeal, unless the contrary intention appears does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the General Clauses Act, as is well known is on the same lines as S. 38 (2) of the Interpretation Act of England." Section 13 of the 1949 Act is almost identical in language with S. 11 of Punjab Act XII of 1948 which was the subject-matter of consideration in State of Punjab v. Mohar Singh, (1955) 1 SCR 893 at p. 897: (AIR 1955 SC 34 at p. 87), and for the reasons given by this Court in that case the provisions of S. 6 (c), (d) and (e) of the General Clauses Act are applicable to this case since there is no contrary intention appearing in the repealing statute. Mr. S. T. Desai is, therefore, unable to make good his submission on this aspect of the case.
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0
### Explanation:
It is not, in our opinion, necessary to express any concluded opinion on this aspect of the case, because we consider that, in any event, in view of the fact that the Ordinance was in force on the date of the holding of the Annual General Meeting of the respondent thex Officer had no power to pass any order under S. 23A of the Act. The Ordinance was in force on December 30, 1948 on which date the Annual General Meeting of the respondent took place and a sum of Rs. 3,68,433 was declared as dividend. Section 23A provides that on the fulfilment of certain conditions set out therein thex Officer shall make an order in writing that the undistributed portion of the assessable income of the respondent of the previous year as computed for income tax purposes and reduced by the amount ofx and super tax "shall be deemed to have been distributed as dividend amongst the shareholders as at the date of the General Meeting aforesaid." It is clear therefore that the order which the Income tax Officer is empowered to make under S. 23A of the Act is that the undistributed income shall be deemed to have been distributed amongst the shareholders "as at the date of the Annual General Meeting". Now the question is whether it was legally permissible for thex Officer to make the order which he has made on March 11, 1955 in the present case. The legal fiction as enacted under S. 23A of the Act is that the undistributed portion of the assessable income is deemed to have been distributed as dividend amongst the shareholders as at the date of the Annual General Meeting. In other words, the notional distribution is not by thex Officer but is by the Company itself at its Annual General Meeting. Since the provisions of the Ordinance imposed the restriction on the declaration of dividend beyond a particular limit that restriction will equally be binding for thex Officer; and if the respondent prevented from declaring a higher dividend than that declared on the date of the Annual General Meeting, thex Officer would be likewise prohibited by the Ordinance from passing an order that a higher dividend than that actually declared shall be deemed to have been declared at the date of the respondents Annual General Meeting. To put it differently, if in actuality a higher dividend could not lawfully have been declared by the respondent, thex Officer could not pass an order that such higher dividend should be deemed to have been declared, for the deemed declaration will suffer from the same legal restrictions which an actual declaration is subject to. In our opinion, the prohibition imposed by S. 3 of the Ordinance applies not only to the actual dividend declared but also to notional dividend deemed to have been declared under Section 23A of the Act. There is a manifest repugnancy between the provisions of the Ordinance and of S. 23A of the Act and it must be taken that there is an implied repeal of S. 23A of the Act to the extent of that repugnancy created by S. 3 of the Ordinance and so long as the Ordinance remains in force. In view of the provisions of Ss. 3 and 12 of the Ordinance the fiction created by S. 23A cannot, therefore, be brought into existence and thex Officer cannot pass an order under the provisions of that SectionIt is, indeed, true that as a result of the order of thex Officer there is no factual distribution of dividend but it is only a fictional or notional distribution of dividend which was not, in fact, received by the shareholders. The Section merely enacts that notional dividend is deemed to have been distributed as at the date of the Annual General Meeting. but even for bringing into existence that legal fiction there must be no statutory prohibition as the Ordinance in the present caseWe are unable to accept this argument as correct. In the first place, the repeal of the Ordinance under S. 13 of the 1949 Act is immaterial for, as we have already stated, Section 23A has created a fiction of distribution of the undistributed income as dividend and the Section further states that it would be deemed as if it was distributed on the date of the Annual General Meeting. Since the notional distribution contemplated by Section 23A of the Act is as if the notional distribution took place at the date of the Annual General Meeting it is the law which prevailed as on the date of the Annual General Meeting which has to be taken into account in considering the issue as to the legal validity of the order made by thex Officer. In the second place, Mr. S. T. Desai is not right in his contention that the effect of S. 13 of the 1949 Act is to obliterate the Ordinance completely from the Statute Book Section 6 of the General Clauses Act (Act 10 of 1897)
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Raymond Limited Vs. Raymond Pharmaceuticals Private Limited | numeral, shape of goods, packaging or combination of colours or any combination thereof;13. It was submitted that because a name is included in the definition of the term mark if the defendant uses a name which is identical or similar to the registered trade mark, then it will amount to infringement within the meaning of infringement of the registered mark, within the meaning of sub-section (4) of section 29 of the Act. If this submission on behalf of the plaintiff is accepted, then it can be seen that use of registered trade mark of the plaintiff as part of the trade name when the goods marketed by the defendant are similar to the goods marketed by the plaintiff would be covered by sub-section (1) of section 29 and may also be covered by sub-section (2) of section 29. In other words, if this submission of the plaintiff is accepted, then in case where the defendant uses as a part of his trade name registered trade mark of the plaintiff, if the goods are similar, identical or the same as that of the plaintiff, the case will be covered by subsections (1) and (2) of section 29 of the Act and if the goods of the defendant are dissimilar, it will be covered by sub-section (4) of section 29 and sub-section (5) of section 29 will become otiose. The provisions of various sub-sections of section 29 are in a scheme and none of the provisions are either surplus or otiose. As a matter of legislative policy, it appears, the Legislature decided to treat cases where the defendant uses registered trade mark of the plaintiff as a part of his trade name as a distinct subject for the purpose of laying down law in relation to infringement of registered trade mark and legislated that if the defendant uses registered trade mark of the plaintiff as a part of his trade name, then if the goods in relation to which the defendant is using the trade mark are the same as the goods in respect of which the plaintiffs trade mark is registered, then only it will amount to infringement and not in case where the goods of the defendant are dissimilar. Holding that where the defendant is using registered trade mark of the plaintiff as a part of the trade name of the defendant, where the goods are the same, subsection (5) of section 29 will apply but if the goods of the defendant are dissimilar, sub-section (4) of section 29 will apply, will be contrary to the legislative scheme of section 29.14. There is another way in which the situation can be looked into. Use of a registered trade-mark as a part of trade-name was a known phenomena. Passing of action was initiated in such cases. A special provision has now been made to deal with that situation by incorporating sub-section 5 of Section 29 and therefore, so far as subject of using of registered trade mark as a trade-name is concerned, provision is contained in subsection 5 of Section 29 and therefore on that subject no other provision would apply. Generalia Specialibus non derogant is a cardinal principle of interpretation. It means that the general provision will always yield to a special provision. Construed in accordance with the fundamental principle, a special provision governing cases of a defendant using a registered mark as a part of his trade-name is incorporated in Section 29(5) and therefore, that subject will be governed only by that provision and therefore reliance on any other provision including Section 29(4) is ruled out. Thus, we have no doubt in our mind that the Plaintiffs could not have relied on the provisions of Section 29(4) of the Trade-mark Act. In the present case, there is no dispute that the Defendants do not deal in the goods in respect of which the trade-mark of the Plaintiffs is registered. What is to be noted here is that the phrase used by sub-section 5 is dealing in goods or services in respect of which the trade-mark is registered. The Legislature has not used the phrase - goods similar or goods identical to the goods in respect of which the trade mark is registered. Thus, in order to claim that use of a registered trade-mark as part of trade-name by the Defendants amounts to infringement, the Plaintiffs have to establish that the Defendants are dealing in the goods in respect of which the mark is registered. In other words, if the Defendants are not dealing in goods in respect of which the trade-mark is registered, then the use of the registered trade-mark as a part of trade-name by the Defendant would not amount to infringement. In the present case admittedly the Defendants are not dealing in the goods in respect of which the trade-mark of the Plaintiffs is registered and therefore, there is no question of the Plaintiffs being entitled to any temporary injunction.15. We thus find that the submission of the learned counsel appearing for plaintiff that the use of the registered trade mark of the plaintiff by the defendant as a part of his trade name when the goods in which the defendant deals are dissimilar to the goods in which the plaintiff deals is covered by sub-section (4) of section 29 cannot be accepted and therefore, we do not think it necessary to deal with the various judgments delivered under other trade-mark legislations which were cited before us to show as to how use of the registered trade mark of the plaintiff by defendant as a part of his trade name amounts to infringement. We also do not consider it necessary to refer to the material which was produced by the plaintiff to contend that the registered trade mark of the plaintiff has reputation in India, that the adoption of the mark by the defendant is without due cause and the use of the mark by the defendant results in diluting the registered trade mark of the plaintiff. | 0[ds]6. From the rival submissions and the record following can be taken as an admitted position:(i) That according to averments in the plaint, thetrademark of thePlaintiffs Raymond is registered or is applied for in relation to the goods in Clauses 3, 6, 19, 22, 23, 24 & 25;(ii) The Defendants use the word Raymond as a part of its corporate name and it is not itsThe Defendants use variouslike LAC for marketing its products;(iii) That the goods marketed by the Plaintiffs and the Defendants are totally dissimilar;(iv) That the Defendants are using Raymond as a part of their corporate name since 1983;(v) It is the case of the Plaintiffs that the use of word Raymond which is the registeredtrademark of thePlaintiffs by the Defendants as a part of their corporate name amounts to infringement of the registeredtrademark of thePlaintiffs within the meaning of Section 29(4) of. Analysis of the provisions of Section 29 for the purpose which is relevant for deciding this appeal shows that (a) so far as(1) of Section 29 is concerned, it lays down that use of awhich is either identical or deceptively similar to the registeredby the Defendant in relation to the goods in respect which the trade mark is registered amounts to infringement of the registeredThus to attract1 of Section 29 the Plaintiff will have to establish that thetrademark of theDefendant is either identical or deceptively similar to the registered trade mark of the Plaintiff and the Defendant is using the trade mark to market his goods which are the goods in relation to which the Plaintiffsis registered; (b) So far as2 of Section 29 is concerned, it lays down that a registeredcan be said to be infringed if (i) thetrademark of theDefendant is identical to the registeredtrademark of thePlaintiff and is used in respect of similar goods by the Defendant (ii) the mark of the Defendant is similar to the registered mark and there is an identity or similarity with the goods in relation to which thetrademark of thePlaintiff is registered or (iii) thetrademark of theDefendant is identical to the registeredtrademark of thePlaintiff and is used in relation to identical goods by the Defendant, and that such use is likely to cause confusion on the part of the public or is likely to be taken to have an association with the registeredFor application of Section 29(2) to a case, the Plaintiff has to show that the Defendantsis either identical or similar to his registeredand that the Defendant is using that mark in relation to goods which are similar or identical to the goods in relation to which the Plaintiffsis registered, and such use by the Defendant should be shown to result in confusion on the part of the public. A comparison of the provisions ofion 2 of Section 29 shows that for attracting1 of Section 29 the Defendants mark should be identical or deceptively similar to the mark of the Plaintiff and must be used in relation to the same goods with respect to which the Plaintiff mark is registered and such use would lead one to think that the Defendant is using the Plaintiffs mark. To attract the provisions of2 of Section 29 the Defendants mark need not be identical to the registeredit may be similar, not necessarily deceptively similar to the mark of the Plaintiff. The Defendant need not be shown to have used the mark in relation to the same goods. Even if it is shown that the Defendant is using the mark in relation to identical or similar goods, it would be enough. It is also to be shown that such use results in confusion of public mind. But once ingredients of2 of Section 29 are established by the Plaintiff, because of3 it is presumed, till contrary is proved by the Defendant, that such use by the Defendant causes confusion in public mind. So far as(4) of Section 29 is concerned, it provides that registeredof a Plaintiff is infringed if the Defendant uses a mark which is identical or similar to the trade mark of the Plaintiff, but the goods in relation to which the mark is used are not similar. But in order to enable the owner of the registeredin such a case to claim infringement of hishe has to establish that he has reputation in India and that use of the mark by the Defendant is without due cause and is detrimental to the distinctive character or the reputation of the registeredIn order to attract the application of(4) of section 29 the Plaintiff has to show that the Defendants mark is identical or similar to the Plaintiffs registered mark and the Defendant is using the mark in relation to the goods which are dissimilar to the goods in relation to which the mark of the Plaintiff is registered and the Plaintiff has to establish some other grounds which are mentioned in Section 29(4). A comparison of Section 29(2) and Section 29(4) shows that in both the cases thetrademark of theDefendant has to be shown to be identical or similar. But for attracting section 29(2), the goods of the Defendant should be identical or similar, however in so far as Section 29(4) is concerned the goods of the Defendant may be dissimilar. Scrutiny of the provisions ofsubsections 1, 2and 4 of Section 29 shows that they deal with the use of a trade mark by the Defendant which is either identical or similar or deceptively similar to the registeredtrademark of thePlaintiff and that use of the Defendant in relation to goods which are either the same as the goods of the Plaintiff or are goods which are identical or similar or dissimilar to the goods of the Plaintiff. In short, these three provisions deal with use by the Defendant of thein relation to the goods or services. In other words, these provisions do not deal with the situation where the Defendant is not using thetrademark of thein relation to any goods or services, but is using the registeredas a part of hisn 5 of Section 29 deals with that situation. It deals with the situation where the Defendant is not using the registeredrk, but is using the registeredas a part of its trade name. Use of such a registeredas a part of trade name by the Defendant also amounts to infringement, but subject to one condition namely that the Defendant must be dealing in goods in relation to which theis registered. For attracting the application ofsubsection 5 of Section29, the Plaintiff has to show that the Defendant is using Plaintiffsand not a mark which is identical or deceptively similar or similar to the Plaintiffs registered trademark as hisor part of hisand such business concern of the Defendant must be shown to be dealing in the same goods in relation to which thetrademark of theis registered. If these two things are established, it is not necessary for the Plaintiff to show that such use of theresults in deception of the public or dilution of the Plaintiffs mark etc. It thus becomes clear that4 and 5 of Section 29 deal with different types of infringements of registeredand it is not merely5 of Section 29 by necessary implication lays down that when a registeredis used by a Defendant as a part of theand the Defendant is dealing in the same goods in relation to which theis registered, then only it will amount to infringement. In other words, if the Defendant uses the registeredas a part of hisbut he does not deal in the same goods in respect of which theis registered, then it does not amount to infringement for the purpose ofAct.10. Controversy in this appeal is when the Defendants admittedly are using the registeredtrademark of thePlaintiffs, not as theirbut as a part of theircan the Plaintiffs claim that it amounts to infringement of their registeredon 4 of Section 29. The defence of the Defendant as observed above is that provisions of Section 29(4) do not apply and that the subject of use by the Defendant of the registeredtrademark of theas a part of hisis governed by Section 29(5).Perusal of Section 159 shows that by 1999 Act the Trade and Merchandise Marks Act 1958 has been repealed. Comparison of the provisions of 1958 Act and the 1999 Act shows that 1958 Act did not have a provision corresponding tosubsection 5 of Section29. Perusal of the statement of objects and reasons ofsubsection 5 of Section29 shows that it is a new provision and it has been incorporated to prevent a person from adopting some one elsesas that person_ sin certain situation. Relevant part of statement of objects and reasons reads as(5) seeks to prevent a person from adopting someone elses trade mark as part of that persons trade name or business name by explicitly providing that such action shall also constitute an infringement under this Act. This provision will bring this clause in harmony with the proposed amendments to sections 20 and 22 of the Companies Act, 1956.11. Perusal of Section 158 of the 1999 Act shows that apart from repealing 1958 Act, certain provisions of the Companies Act were also amended by Act 47 of 1999. Two provisions of the Companies Act which have been amended by Act 47 of 1999 are sections 20 and 22 of the Companies Act. Section 20 and 22 of the Companies Act reads as under:20. Companies not to be registered with undesirable names.(1) No company shall be registered by a name which, in the opinion of the Central Government, is undesirable.(2) Without prejudice to the generality of the foregoing power, a name which is identical with, or too nearlythe name by which a company is existence has been previously registered; or(ii) a registered trade mark, or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999, may be deemed to be undesirable by the Central Government within the meaning of(1).(3) The Central Government may, before deeming a name as undesirable under clause (ii) of(2), consult the Registrar of Trade Marks.)22. Rectification of name ofIf, through inadvertence or otherwise, a company on its first registration or on its registration by a new name, is registered by a name | 0 | 6,012 | 1,882 | ### 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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numeral, shape of goods, packaging or combination of colours or any combination thereof;13. It was submitted that because a name is included in the definition of the term mark if the defendant uses a name which is identical or similar to the registered trade mark, then it will amount to infringement within the meaning of infringement of the registered mark, within the meaning of sub-section (4) of section 29 of the Act. If this submission on behalf of the plaintiff is accepted, then it can be seen that use of registered trade mark of the plaintiff as part of the trade name when the goods marketed by the defendant are similar to the goods marketed by the plaintiff would be covered by sub-section (1) of section 29 and may also be covered by sub-section (2) of section 29. In other words, if this submission of the plaintiff is accepted, then in case where the defendant uses as a part of his trade name registered trade mark of the plaintiff, if the goods are similar, identical or the same as that of the plaintiff, the case will be covered by subsections (1) and (2) of section 29 of the Act and if the goods of the defendant are dissimilar, it will be covered by sub-section (4) of section 29 and sub-section (5) of section 29 will become otiose. The provisions of various sub-sections of section 29 are in a scheme and none of the provisions are either surplus or otiose. As a matter of legislative policy, it appears, the Legislature decided to treat cases where the defendant uses registered trade mark of the plaintiff as a part of his trade name as a distinct subject for the purpose of laying down law in relation to infringement of registered trade mark and legislated that if the defendant uses registered trade mark of the plaintiff as a part of his trade name, then if the goods in relation to which the defendant is using the trade mark are the same as the goods in respect of which the plaintiffs trade mark is registered, then only it will amount to infringement and not in case where the goods of the defendant are dissimilar. Holding that where the defendant is using registered trade mark of the plaintiff as a part of the trade name of the defendant, where the goods are the same, subsection (5) of section 29 will apply but if the goods of the defendant are dissimilar, sub-section (4) of section 29 will apply, will be contrary to the legislative scheme of section 29.14. There is another way in which the situation can be looked into. Use of a registered trade-mark as a part of trade-name was a known phenomena. Passing of action was initiated in such cases. A special provision has now been made to deal with that situation by incorporating sub-section 5 of Section 29 and therefore, so far as subject of using of registered trade mark as a trade-name is concerned, provision is contained in subsection 5 of Section 29 and therefore on that subject no other provision would apply. Generalia Specialibus non derogant is a cardinal principle of interpretation. It means that the general provision will always yield to a special provision. Construed in accordance with the fundamental principle, a special provision governing cases of a defendant using a registered mark as a part of his trade-name is incorporated in Section 29(5) and therefore, that subject will be governed only by that provision and therefore reliance on any other provision including Section 29(4) is ruled out. Thus, we have no doubt in our mind that the Plaintiffs could not have relied on the provisions of Section 29(4) of the Trade-mark Act. In the present case, there is no dispute that the Defendants do not deal in the goods in respect of which the trade-mark of the Plaintiffs is registered. What is to be noted here is that the phrase used by sub-section 5 is dealing in goods or services in respect of which the trade-mark is registered. The Legislature has not used the phrase - goods similar or goods identical to the goods in respect of which the trade mark is registered. Thus, in order to claim that use of a registered trade-mark as part of trade-name by the Defendants amounts to infringement, the Plaintiffs have to establish that the Defendants are dealing in the goods in respect of which the mark is registered. In other words, if the Defendants are not dealing in goods in respect of which the trade-mark is registered, then the use of the registered trade-mark as a part of trade-name by the Defendant would not amount to infringement. In the present case admittedly the Defendants are not dealing in the goods in respect of which the trade-mark of the Plaintiffs is registered and therefore, there is no question of the Plaintiffs being entitled to any temporary injunction.15. We thus find that the submission of the learned counsel appearing for plaintiff that the use of the registered trade mark of the plaintiff by the defendant as a part of his trade name when the goods in which the defendant deals are dissimilar to the goods in which the plaintiff deals is covered by sub-section (4) of section 29 cannot be accepted and therefore, we do not think it necessary to deal with the various judgments delivered under other trade-mark legislations which were cited before us to show as to how use of the registered trade mark of the plaintiff by defendant as a part of his trade name amounts to infringement. We also do not consider it necessary to refer to the material which was produced by the plaintiff to contend that the registered trade mark of the plaintiff has reputation in India, that the adoption of the mark by the defendant is without due cause and the use of the mark by the defendant results in diluting the registered trade mark of the plaintiff.
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a case to claim infringement of hishe has to establish that he has reputation in India and that use of the mark by the Defendant is without due cause and is detrimental to the distinctive character or the reputation of the registeredIn order to attract the application of(4) of section 29 the Plaintiff has to show that the Defendants mark is identical or similar to the Plaintiffs registered mark and the Defendant is using the mark in relation to the goods which are dissimilar to the goods in relation to which the mark of the Plaintiff is registered and the Plaintiff has to establish some other grounds which are mentioned in Section 29(4). A comparison of Section 29(2) and Section 29(4) shows that in both the cases thetrademark of theDefendant has to be shown to be identical or similar. But for attracting section 29(2), the goods of the Defendant should be identical or similar, however in so far as Section 29(4) is concerned the goods of the Defendant may be dissimilar. Scrutiny of the provisions ofsubsections 1, 2and 4 of Section 29 shows that they deal with the use of a trade mark by the Defendant which is either identical or similar or deceptively similar to the registeredtrademark of thePlaintiff and that use of the Defendant in relation to goods which are either the same as the goods of the Plaintiff or are goods which are identical or similar or dissimilar to the goods of the Plaintiff. In short, these three provisions deal with use by the Defendant of thein relation to the goods or services. In other words, these provisions do not deal with the situation where the Defendant is not using thetrademark of thein relation to any goods or services, but is using the registeredas a part of hisn 5 of Section 29 deals with that situation. It deals with the situation where the Defendant is not using the registeredrk, but is using the registeredas a part of its trade name. Use of such a registeredas a part of trade name by the Defendant also amounts to infringement, but subject to one condition namely that the Defendant must be dealing in goods in relation to which theis registered. For attracting the application ofsubsection 5 of Section29, the Plaintiff has to show that the Defendant is using Plaintiffsand not a mark which is identical or deceptively similar or similar to the Plaintiffs registered trademark as hisor part of hisand such business concern of the Defendant must be shown to be dealing in the same goods in relation to which thetrademark of theis registered. If these two things are established, it is not necessary for the Plaintiff to show that such use of theresults in deception of the public or dilution of the Plaintiffs mark etc. It thus becomes clear that4 and 5 of Section 29 deal with different types of infringements of registeredand it is not merely5 of Section 29 by necessary implication lays down that when a registeredis used by a Defendant as a part of theand the Defendant is dealing in the same goods in relation to which theis registered, then only it will amount to infringement. In other words, if the Defendant uses the registeredas a part of hisbut he does not deal in the same goods in respect of which theis registered, then it does not amount to infringement for the purpose ofAct.10. Controversy in this appeal is when the Defendants admittedly are using the registeredtrademark of thePlaintiffs, not as theirbut as a part of theircan the Plaintiffs claim that it amounts to infringement of their registeredon 4 of Section 29. The defence of the Defendant as observed above is that provisions of Section 29(4) do not apply and that the subject of use by the Defendant of the registeredtrademark of theas a part of hisis governed by Section 29(5).Perusal of Section 159 shows that by 1999 Act the Trade and Merchandise Marks Act 1958 has been repealed. Comparison of the provisions of 1958 Act and the 1999 Act shows that 1958 Act did not have a provision corresponding tosubsection 5 of Section29. Perusal of the statement of objects and reasons ofsubsection 5 of Section29 shows that it is a new provision and it has been incorporated to prevent a person from adopting some one elsesas that person_ sin certain situation. Relevant part of statement of objects and reasons reads as(5) seeks to prevent a person from adopting someone elses trade mark as part of that persons trade name or business name by explicitly providing that such action shall also constitute an infringement under this Act. This provision will bring this clause in harmony with the proposed amendments to sections 20 and 22 of the Companies Act, 1956.11. Perusal of Section 158 of the 1999 Act shows that apart from repealing 1958 Act, certain provisions of the Companies Act were also amended by Act 47 of 1999. Two provisions of the Companies Act which have been amended by Act 47 of 1999 are sections 20 and 22 of the Companies Act. Section 20 and 22 of the Companies Act reads as under:20. Companies not to be registered with undesirable names.(1) No company shall be registered by a name which, in the opinion of the Central Government, is undesirable.(2) Without prejudice to the generality of the foregoing power, a name which is identical with, or too nearlythe name by which a company is existence has been previously registered; or(ii) a registered trade mark, or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999, may be deemed to be undesirable by the Central Government within the meaning of(1).(3) The Central Government may, before deeming a name as undesirable under clause (ii) of(2), consult the Registrar of Trade Marks.)22. Rectification of name ofIf, through inadvertence or otherwise, a company on its first registration or on its registration by a new name, is registered by a name
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MEDICAL COUNCIL OF INDIA Vs. CHAIRMAN, S.R. EDUCATIONAL AND CHARITABLE TRUST | made on 5th and 6th December 2016, gross deficiencies were found and due to that the MCI on 28.1.2017 recommended the Central Government to debar the college for two academic years and to encash the bank guarantee. On 31.5.2017, Government of India accepted the recommendations of the MCI. As the first batch admitted in the college reached the final year, the application was filed by the college for grant of recognition. The college, aggrieved by the Government of Indias decision on 31.5.2017 filed WritPetition (C) No. 19753 of 2017 for permission to admit fresh batch of 150 M.B.B.S. students for the academic year 2017-2018. The writ petition was decided by order dated 2.8.2017 the High Court directed Government of India to give a personal hearing to the college and thereafter to pass a fresh reasoned order. The Government of India after considering the recommendation of the Hearing Committee decided on 14.8.2017 to confirm the conditional renewal of permission for the academic year 2016-2017 and that no fresh batch for 2017-2018 may be allowed. 36. Writ Petition No. 19753 of 2017 came to be filed for grant of admission in 2017-18 in which interim order was granted by the High Court on 25.8.2017. This Court set aside the interim order of the High Court on 6.9.2017, however, permitted the college to approach this court under Article 32 of the Constitution of India. Thereafter, Writ Petition (C) No.838 of 2017 was filed in this Court. This Court vide order dated 22.9.2017 while permitting the students admitted for the academic year 2017-2018 to continue, directed the college to remove the deficiencies. The order was passed to safeguard the interest of the students already admitted pursuant to the interim order dated 25.8.2017. 37. In order to consider the case of the respondent - medical college for recognition, an inspection was carried out on 27.2.2018 and 14/15,March 2018. In the assessment report, various deficiencies as noted above were found. The Executive Committee decided not to recommend the recognition in regard to MBBS degree. It was also recommended to the Central Government not to grant renewal of permission for the admission of a fresh batch of 150 MBBS students for the academic year 2018-19. The decision of the Executive Committee was communicated to the Oversight Committee, which in turn vide order dated 28.3.2018 approved the same. 38. The Executive Committee then vide letter dated 20.04.2018 communicated to the Government of India. At the same time, the MCI vide letter dated 20.04.2018 requested the respondent-Medical College to rectify the deficiencies and submit compliance within one month for further consideration of its case for grant of recognition. As against recommendation made by the MCI, the college filed the Writ Petition (C) No. 15171 of 2017 before the High Court of Kerala. The High Court directed Government of India to grant a hearing and to pass final order on or before 31.5.2018. The Government of India granted hearing opportunity on 21.5.2018. The college reported compliance on 22.5.2018. The MCI vide letter dated 25.5.2018 requested the Oversight Committee to consider the matter. The Oversight Committee on 28.5.2018 directed the MCI to follow the regulations. The Government ofIndia was informed by the MCI on 28.5.2018 that last date to send recommendation by MCI was up to 30.04.2018 which was already over, as such the case of the college could not have been considered for admission for 2018-2019 and the matter of the recognition was under consideration of the MCI and shall be decided appropriately after considering compliance. The Central Government passed the impugned order on 31.5.2018 and in view of the gross deficiencies decided not to grant renewal of permission admission for the batch of 150 MBBS students in the academic year 2018-2019. Aggrieved by the same, Writ Petition (C) No. 19543 of 2018 was filed in which prayer was made to grant recognition and to permit the students to be admitted. The said writ petition had been allowed by the impugned common judgment. 39. For the purpose of recognition, the Regulations of 1999 contains the provisions in Regulation 8(3)(1) wherein the process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies. It is the stand of the MCI also that the matter ofrecognition is under consideration and shall be considered in terms of said regulation after giving the opportunity to make good deficiency. However, with respect to admissions in 2018-19, the recommendation was made not to admit the students. 40. It is apparent that when the Hearing Committee has ordered on 21.5.2018 to consider the compliance and to make a fresh recommendation, the MCI declined to do so on the ground that time to make a recommendation was already over on 30.04.2018. The decision of Mridul Dhar v. Union of India, 2005 (2) SCC 65 , Priya Gupta v. State of Chhattisgarh 2012 (7) SCC 433 and Royal Medical Trust (Regd.) & Anr. v. Union of India 2015 (10) SCC 19 were referred to. It was clearly mentioned by the MCI in its letter dated 25.5.2018 that the matter could not be considered for renewal of permission for admission for the academic year 2018-2019, but compliance of the medical college for the purpose of recognition/approval under section 11 (2) of the Act was under consideration of the MCI and compliance verification/assessment and recommendations of the MCI would be sent to Central Government in due course of time. The matter was under consideration before the MCI for recognition, renewal for permission for admission had been declined by the MCI on 28.5.2018. Thereafter, the Government of India has passed the order on 31.5.2018 declining admission for 2018-19. | 1[ds]It is apparent from the aforesaid regulation that in the case of the third batch, deficiencies of teaching faculty and/or residents are found to be more than 30% and bed occupancy less than 50%, a college cannot be given an opportunity for compliance in the same year.15. In the case of the 4th and 5th batch as provided in regulations 8(3) (1) (b), if the deficiencies of teaching faculty and the residents is more than 20% and bed occupancy is less than 65%, such college cannot be given opportunity of reporting compliance during the same academic year.16. Considering the aforesaid deficiencies in case of S.R. Educational Trust, Regulation 8(3)(1)(a) was attracted. In Al-Azhar Medical College and the college at Palakkad for 5th Batch deficiencies found by the assessors were gross so as to attract the provisions contained in amended Regulation 8(3)(1)(b).17. Regulation 8(3)(1)(a) came up for consideration in the case of Vedantaa Institute (supra) and while upholding vires of the provisions, precluding opportunity of re-verification, this court has observed:10. Though Regulation 8(3)(1)(a) was challenged in the Writ Petition filed by Respondent No. 1 and 2, they did not press the relief. They restricted their challenge to the manner in which the inspection was done and for a direction to the Appellant-Council to carry out a fresh inspection. The interpretation of Regulation 8(3)(1)(a) by the High Court is patently erroneous in as much as the High Court did not take note of the proviso to Regulation 8(3)(1). Without a proper examination of the provision, the High Court fell in error in holding that Regulation 8(3)(1) (a) would be applicable only to the Colleges seeking second renewal i.e. admissions of the third batch. Admissions up to the second renewal i.e. admissions to the third batch would fall under Regulation 8(3)(1)(a). In other words, the proviso is not restricted only to second renewal cases. Even the first renewal is covered by proviso (a) to Regulation 8(3)(1) as the language used is up to second renewal. We do not see any conflict between Section 10-A (3) and (4) of the Act on one hand and Regulation 8(3)(1)(a) on the other. Regulation 8(3)(1) (a) is complementary to Section 10-A of the Act. Fixing minimum standards which have to be fulfilled for the purpose of enabling a medical College to seek fresh inspection would not be contrary to the scheme of Section 10-A. In fact. Regulation 8(3)(1) provides that an opportunity shall be given to the Medical College to rectify the defects. But, the proviso contemplates that certain minimum standards are to be satisfied i.e. there should not be a deficiency of teaching faculty and/or residents more than 30 percent and/or bed occupancy should not be less than 50 percent. This prescription of standards for availing an opportunity to seek re-inspection is not ultra vires either the Regulation or Section 10-A of the Act.11. On perusal of the material on record, we are of the opinion that the conclusion reached by the High Court regarding the manner in which inspection was conducted is also not correct. Bed occupancy at 45.30 percent on random verification was the claim of Respondent No. 1 and 2. However, the inspection report shows that out of the required minimum of 300 patients only 3 were available at 10.00 am on 25th September 2017. This Court in Kalinga (supra) has held that medical education must be taken very seriously and when an expert body certifies that the facilities in a medical College are inadequate, it is not for the Courts to interfere with the assessment, except for very cogent jurisdictional reasons such as malafide of the inspection team, ex facie perversity in theinspection, jurisdictional error on the part of the M.C.I., etc. The submission relating to the cyclone being a reason for the number of patients being less is not acceptable. We are in agreement with the submission made on behalf of the Appellant that the Resident Doctors are required to be in the hospital at all points of time.(emphasis supplied)18. In Medical Council of India vs. Principal, KMCT Medical College and Anr. (Civil Appeal No.8429 of 2018) decided on August 21, 2018, this Court has again considered the provisions of Regulations 8(3)(1)(a) and the applicability of clause 8(3)(1)(c) and the submission raised on the strength in Royal Medical Trust (Registered) & Anr. v. Union of India & Anr. 2015 (10) SCC 19. This Court after considering the decision in Madha Medical College and Research Institute v. Union of India & Anr. 2017 (15) SCC 791 and I.Q. City Foundation and Anr. v. Union of India & Ors. 2017 (16) SCC 249 observed that the recommendation of the Hearing Committee at best had the force of observation for conducting the review. Physical verification of compliance can be done only by the MCI. The manner of verification of the compliance has to be necessarily left to the appellant-MCI. The Court observed:14. The conclusion of the High Court that a second inspection ought not to have been conducted by the MCI is contrary to the law laid down by this Court in the judgments referred to supra. We are also not in agreement with the High Court that the MCI was bound to comply with the direction issued by Respondent No.2 and that a recommendation ought to have been made by the Appellant without verification. It is relevant to note that the Hearing Committee was prima facie convinced that the deficiencies pointed out in the inspection conducted on 18th/19thSeptember 2017 appeared to have been rectified on the basis of documentary evidence furnished by the College. Therefore, the Hearing Committee suggested that the Appellant may review and make a revised recommendation without any need for compliance verification. On the basis of such recommendation of the Hearing Committee, the matter was sent back to the Appellant by Respondent No.2. At best, the observation of the Hearing Committee, as affirmed by Respondent No.2, is a suggestion. Remand of the matter to the Appellant -MCI for conducting a review is due to the fact that the physical verification for compliance can be done only by the Appellant - MCI. The manner of verification of the compliance has to be necessarily left to the Appellant -MCI. We are of the view that it is open to the Appellant to choose the manner of compliance verification. Remand by the Government of India to MCI for a review does not place any restriction of verification to only the deficiencies pointed out earlier. MCI is competent to conduct the inspection regarding the compliance of the minimum standards as prescribed by the Regulations as well.(emphasis supplied)20. There can be a statutory prohibition on fresh inspection. Same has been created by amending regulation of 1999 in 2016. In Madha Medical College and Research Institute (supra) this Court has observed:17. While considering the above submissions, we must make it clear at the outset that we are not impressed with the argument that MCI is prohibited from conducting a second or subsequent inspection. The purpose of inspection by an expert team of assessors is to verify whether a medical college has the requisite infrastructure and facilities including faculty, residents as well as clinical and nonclinical material. The basic purpose of the inspection is to verify whether the college possesses the wherewithal and resources to provide a quality legal education consistent with the statutory regulations which hold the field. The powers of MCI cannot be constricted by prohibiting it from carrying out another inspection, even if it were to come close on the heels of an earlier inspection. As an expert statutory body, MCI may have legitimate reasons for seeking a reverification of the observations contained in a prior inspection. There may be reasons to doubt the genuineness of the picture which has been made out by the College during the course of an inspection. MCI may have prima facie reasons to believe that the actual possession of resources and infrastructure is at variance with what was portrayed before its team of assessors. MCI has been conferred with statutory powers to protect the cause of medical education. MCI is a custodian of public interest and acts in trust for the welfare of society. Access to medical care requires the presence of qualified health professionals. Verification of the conditions which prevail in medical colleges is central to the role discharged by MCI. Hence, it would bemanifestly contrary to public interest to restrict the powers of MCI to carry out a fresh inspection even though in its considered decision, such an inspection is necessary. This Court cannot sit in judgment over the wisdom of an expert body and we find no basis to hold in law that there is a prohibition in carrying out a fresh inspection. In the absence of a statutory interdict, the court will not read such a restriction into the powers of MCI. In these circumstances, we find no merit in the submission.(emphasis supplied)21. In I.Q. City Foundation vs. Union of India (supra) the Court has emphasized objectivity in the decision-making process, it observed:31. On a reading of Section 10-A of the Act, Rules and the Regulations, as has been referred to in Manohar Lal Sharma [Manohar Lal Sharma v. Medical Council of India, (2013) 10 SCC 60 : 6 SCEC 578], and the view expressed in Royal Medical Trust [Royal Medical Trust v. Union of India, (2015) 10 SCC 19 : 7 SCEC 429], it would be inapposite to restrict the power of the MCI by laying down as an absolute principle that once the Central Government sends back the matter to MCI for compliance verification and the assessors visit the college they shall only verify the mentioned items and turn a Nelsons eye even if they perceive certain other deficiencies. It would be playing possum. The direction of the Central Government for compliance verification report should not be construed as a limited remand as is understood within the framework of Code of Civil Procedure or any other law. The distinction between the principles of open remand and limited remand, we are disposed to think, is not attracted. Be it clearly stated, the said principle also does not flow from the authority in Royal Medical Trust [Royal Medical Trust v. Union of India, (2015) 10 SCC 19 ] . In this context, the objectivity of the Hearing Committee and the role of the Central Government assume great significance. The real compliant institutions should not always be kept under the sword of Damocles. Stability can be brought by affirmative role played by the Central Government. And the stability and objectivity would be perceptible if reasons are ascribed while expressing a view and absence of reasons makes the decision sensitively susceptible.22. The MCI has been established in order to streamline the standard of medical education. It has the power to supervise qualification and eligibility standards for admissions into medical institutions, as observed in State of Kerala vs. T.P. Roshna (1979) SCC 580:The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus, there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses.23. In Medical Council of India vs. State of Karnataka 1998 (6) SCC 131 the Court observed that the country does not want a half-baked medical professional to come out of the medical colleges. The college should be well equipped with faculty and competent doctors. The Court has observed:A medical student requires grueling study and that can be done only if proper facilities are available in a medical college and the hospital attached to it has to be well equipped and the teaching faculty and doctors has to be competent enough that when a medical student comes out, he is perfect in the science of treatment of human beings and is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teachings and were not exposed to the patients and their ailments during the course of their study..........The Court has further observed that the regulations of the MCI are binding and mandatory. There cannot be any contrary State enactment.The said view was affirmed by this Court in Dr. Preeti Srivastava v. State of Madhya Pradesh & Ors. 1999 (7) SCC 120. 24. For effective implementation of provisions of Section 10 A of the Indian Medical Council Act, 1956 (for short, the Act) requiring prior permission from the Central Government for the establishment of medical colleges, regulations have been made in exercise of powers under Section 10 A read with Section 33 of the Act.25. Consequently, the regulations of 1999 are binding with respect to availability of teaching faculty, infrastructural and other facilities and with the advancement of the batches this requirement become more rigorous as there is more requirement in the faculty than the college is recognized after fulfillment of all the conditions as apparent from the provisions contained in the Regulations. With the aforesaid objective, the provisions contained in Regulation 8(3) have been carved out and amended in 2016. In case there are gross deficiencies, more than prescribed in regulation for the concerned batch then the compliance verification would not be considered in the same academic year. Regulation 8(3)(1)(a) shall be applicable to an institution which has been established and is at the stage of second renewal of permission and in case deficiency of faculty and/or residents are found more than 30% and/or bed occupancy is found less than 50%, institute shall not begiven opportunity to rectify such deficiency in same academic year. In case discrepancies are less, then the opportunity is afforded to make compliance. In the case of recognition, an opportunity of compliance has to be given as per Regulation 8(3)(1), once recognition is denied no admissions can be made.26. Considering the aforesaid provisions and the deficiencies found in the case of the aforesaid three medical colleges, we are of the considered opinion that the recommendations made by the Hearing Committee to review and to consider the compliance could not be said to be binding. The provisions of the regulations 8(3)(1)(a) and (b) are binding upon the Hearing Committee/Government of India and the MCI. It is only in a case when a report of the Assessors on the face of it, makes out that the same is incorrect, a reconsideration or review is called for. Otherwise, in the case of gross deficiency, the yardstick contained in regulation 8(3) (1) (a) or (b) has to be applied by the Hearing Committee, Government of India or the MCI, as the case may be. It is not open to the Government of India/ MCI or Hearing Committee to depart in a few cases and in some other to take a different stand. They have to scrupulously observe the provisions of regulations which are binding on them.27. It is unfortunate that the High Court has made a passing reference to the decision of this Court in Medical Council of India v. VedantaaInstitute of Academic Excellence Pvt. Ltd. & Ors. (supra) and Medical Council of India v. The Principal, KMCT Medical College, andAnr. (supra). It was incumbent upon the High Court in pith and substance to follow the mandate of Vedantaa Institute of Academic Excellence Pvt. Ltd. & Ors. (supra). The High Court has relied upon other judgments which were not based upon the consideration of the amended provisions of the regulation 8(3)(1). It could not have relied upon its own decision of the Division Bench in D.M. Education and Research Foundation v. Union of India (supra) which was clearly contrary to the aforesaid decisions of this Court.28. It is high time for the MCI to ensure its functions well and eradicate all the loop-holes and decide the case within a reasonable time and not to lend the colleges in a situation with no legal remedy available once case is decided at the fag end of the academic session on 31st May. We are constrained to observe that it would be appropriate that MCI and Government of India take a decision in all the cases at an early date and not by the end of May 2018. The next academic session has to commence from first of July of the Gregorian calendar year as such at least 3-4 months time should be available to seek judicial review of the action or re-inspection, if any, so warranted by the MCI or Government of India. We find that once a petition is filed and even if in some cases we areinclined to grant a relief of re-inspection to a college, but due to the lapse of the time schedule and the admissions having already been made, it is not considered appropriate to disturb the uniform schedule of various universities. In our opinion, it would be appropriate that the MCI, as well as the Government of India, should take a final decision after inspection, by the end of February or latest by the end of March.31. We have no hesitation in rejecting the submission as it has no legs to stand. Whatever college says is not a gospel truth. There is no case wherein college does not dispute the report of the Assessors and contend that there were no such deficiencies. It is clearly disputed fact. Firstly, the report of the Assessor cannot be lightly disbelieved. It is not open to examining the case set up by the college as facts are found by Assessors are at great variance secondly, in the judicial review, the report cannot be discarded relying on data put up by the college on self-serving website portal. In our view, the High Court was right in discarding the explanation offered by the colleges with respect to deficiencies. Even the Hearing Committee with respect to P.K. Dass Institute of Medical Sciences did not doubt the report of Assessors as to bed occupancy. This Court has considered the value of a website portal and such objections in Medical Council of India v. N.C. Medical College & Hospital and Ors. (Civil Appeal No.9519 of 2018) decided on 13.9.2018 in which the decision of Medical Council of India vs. Kalinga Institute of Medical Sciences (KIMS) & Ors. 2016 (11) SCC 530 has been referred to. The Court observed:18. On the one hand, the High Court has doubted the report of inspection and for that surprisingly relied on the self-serving contents of the website of the college. There is nothing to vouch for the authenticity of the website information. It is not what the institution asserts on website but what is actually found on inspection, that has to be considered by the court and while exercising judicial review it is settled law that court cannot sit in appeal over the report of the assessors asobserved in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS), (2016) 11 SCC 530 thus:21. A perusal of the decision of the High Court clearly indicates that it considered the latest report of the Inspection Team as if it was hearing an appeal against the report. In doing so, the High Court went into great details on issues relating to the number of teaching beds in the hospital, the limitations in the OPD Department, the number of units available in the subjects of General Medicine, Pediatrics etc., bed occupancy, number of Caesarean sections, discrepancy in data of major and minor operations, computerization in the institution, number of patients in the ICU, number of static X-ray machines, deficiency of examination halls, lecture theatres, library, students hostel, interns hostel, playground etc. etc. Surely, this was not within the domain of the High Court in the exercise of its jurisdiction under Article 226 of the Constitution. 22. The High Court did not appreciate that the inspection was carried out by eminent Professors from reputed medical institutions who were experts in the field and the best persons to give an unbiased report on the facilities in KIMS. The High Court under Article 226 of the Constitution was certainly not tasked to minutely examine the contents of the inspection report and weigh them against the objections of KIMS in respect of each of its 18 items. In our opinion, the High Court plainly exceeded its jurisdiction in this regard in venturing into seriously disputed factual issues.(emphasis supplied)It was also observed that at the time of inspection faculty should be present barring certain exceptions otherwise the very purpose of the inspection would be defeated. The Report of the Assessors cannot be lightly faulted and the court cannot sit in an appeal and go into disputed facts. There were other deficiencies too but due to the aforesaid gross deficiencies, the provisions of regulations 8(3)(1)(b) were clearly attracted.32. In Medical Council of India v. The Principal, KMCT Medical College (supra) it was contended that the inspection was not properly conducted. The submission had been rejected thus:15. We do not deem it necessary to deal with the submission made on behalf of the College regarding the inspection not being properly conducted. This Court has repeatedly said that a decision taken by the Union of India on the basis of a recommendation of an expert body regarding the inadequacy of facilities in medical colleges cannot be interfered with lightly. Interference is permissible only when the colleges demonstrate jurisdictional errors, ex facie perversity or mala fide. TSee:-Manohar Lal Sharma v. Medical Council of India 4 and Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) 5 ]. As no case is made out by the College for interference with the inspection report, we decline the request of Mr. Sibal for remand of the matter to the High Court.(emphasis supplied)In our opinion, in view of the aforesaid legal position, it is not open to the court in judicial review to accept tenuous objections as to bed occupancy in the absence of mala fide.33. In view of the aforesaid discussion, we are of the considered opinion that the High Court has gravely erred in law while passing the impugned judgment and order in quashing Governments order, allowing the admissions for the academic session 2018-2019 without there being Government of Indias permission and the recommendation of the MCI. The High Court has issued direction for fresh inspection and thereafter the MCI to consider the report after the grant of opportunity to remove defects if any. Firstly, it could not have issued such a direction in view of regulations and also the blanket direction that college should be permitted to remove the deficiencies if any found. Deficiencies can be removed, if found, within the permissible limits as provided in regulation 8(3), not in a case Regulation 8(3)(1)(a) or (b) is attracted. Thus, such kind of general direction issued without considering the provisions of the Regulations are wholly illegal and unwarranted and on inspection, the decision has to be taken in accordance with law as per regulations. Obviously, regulations would come into play as per outcome of an assessment. It cannot be predicted in advance what would be the outcome of inspection to decide in advance opportunity of removal of deficiencies. There may be a case where deficiencies are found by Assessors to be gross as contemplated in the proviso to Regulation 8(3) (1), they cannot be removed in that year. Even otherwise, the Court could not have at all ordered the admissions, as directed in the instant matter. High Court at the same time has ordered inspection and if the deficiencies are found to exist then the MCI and Government of India have been given liberty to take appropriate decision. Such orders may ruin the entire career of the students. Once permission to admit students is granted, it should not be such conditional one. Considering the deficiencies, it would be against the efficacious medical education and would amount to permit the unequipped medical college to impart medical education without proper infrastructure and faculty, patients serve as the object of teaching by such an approach ultimately interest of the society would suffer and half-baked doctors cannot be left loose on society like drones and parasites to deal with the life of patients in the absence of proper educational training. It would be dangerous and against the right to life itself, in case unequipped medical colleges are permitted to impart substandard medical education without proper facilities and infrastructure.In re: D.M. Education and Research Institute of Medical Sciences:34. Coming to the case of recognition and admission in of D.M. Education and Research Institute of Medical Sciences established by D.M. Education Research Foundation Trust, it was a case of recognition and admission. In the inspection dated 27.2.2018 and 14/15 March 2018 various deficiencies were found supported by photographs, videography etc.35. The background facts indicate that the college was granted permission for the academic sessions 2013-2014 and 2015-2016. For the academic year 2016-2017, it was granted conditional permission on the recommendation of the Oversight Committee to the effect that in case of failure to remove the deficiencies, it would be debarred for two academic years. Thereafter, on inspection assessment that was made on 5th and 6th December 2016, gross deficiencies were found and due to that the MCI on 28.1.2017 recommended the Central Government to debar the college for two academic years and to encash the bank guarantee. On 31.5.2017, Government of India accepted the recommendations of the MCI. As the first batch admitted in the college reached the final year, the application was filed by the college for grant of recognition. The college, aggrieved by the Government of Indias decision on 31.5.2017 filed WritPetition (C) No. 19753 of 2017 for permission to admit fresh batch of 150 M.B.B.S. students for the academic year 2017-2018. The writ petition was decided by order dated 2.8.2017 the High Court directed Government of India to give a personal hearing to the college and thereafter to pass a fresh reasoned order. The Government of India after considering the recommendation of the Hearing Committee decided on 14.8.2017 to confirm the conditional renewal of permission for the academic year 2016-2017 and that no fresh batch for 2017-2018 may be allowed.39. For the purpose of recognition, the Regulations of 1999 contains the provisions in Regulation 8(3)(1) wherein the process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies. It is the stand of the MCI also that the matter ofrecognition is under consideration and shall be considered in terms of said regulation after giving the opportunity to make good deficiency. However, with respect to admissions in 2018-19, the recommendation was made not to admit the students.40. It is apparent that when the Hearing Committee has ordered on 21.5.2018 to consider the compliance and to make a fresh recommendation, the MCI declined to do so on the ground that time to make a recommendation was already over on 30.04.2018. The decision of Mridul Dhar v. Union of India, 2005 (2) SCC 65 , Priya Gupta v. State of Chhattisgarh 2012 (7) SCC 433 and Royal Medical Trust (Regd.) & Anr. v. Union of India 2015 (10) SCC 19 were referred to. It was clearly mentioned by the MCI in its letter dated 25.5.2018 that the matter could not be considered for renewal of permission for admission for the academic year 2018-2019, but compliance of the medical college for the purpose of recognition/approval under section 11 (2) of the Act was under consideration of the MCI and compliance verification/assessment and recommendations of the MCI would be sent to Central Government in due course of time. The matter was under consideration before the MCI for recognition, renewal for permission for admission had been declined by the MCI on 28.5.2018. Thereafter, the Government of India has passed the order on 31.5.2018 declining admission for 2018-19. | 1 | 11,255 | 5,408 | ### Instruction:
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made on 5th and 6th December 2016, gross deficiencies were found and due to that the MCI on 28.1.2017 recommended the Central Government to debar the college for two academic years and to encash the bank guarantee. On 31.5.2017, Government of India accepted the recommendations of the MCI. As the first batch admitted in the college reached the final year, the application was filed by the college for grant of recognition. The college, aggrieved by the Government of Indias decision on 31.5.2017 filed WritPetition (C) No. 19753 of 2017 for permission to admit fresh batch of 150 M.B.B.S. students for the academic year 2017-2018. The writ petition was decided by order dated 2.8.2017 the High Court directed Government of India to give a personal hearing to the college and thereafter to pass a fresh reasoned order. The Government of India after considering the recommendation of the Hearing Committee decided on 14.8.2017 to confirm the conditional renewal of permission for the academic year 2016-2017 and that no fresh batch for 2017-2018 may be allowed. 36. Writ Petition No. 19753 of 2017 came to be filed for grant of admission in 2017-18 in which interim order was granted by the High Court on 25.8.2017. This Court set aside the interim order of the High Court on 6.9.2017, however, permitted the college to approach this court under Article 32 of the Constitution of India. Thereafter, Writ Petition (C) No.838 of 2017 was filed in this Court. This Court vide order dated 22.9.2017 while permitting the students admitted for the academic year 2017-2018 to continue, directed the college to remove the deficiencies. The order was passed to safeguard the interest of the students already admitted pursuant to the interim order dated 25.8.2017. 37. In order to consider the case of the respondent - medical college for recognition, an inspection was carried out on 27.2.2018 and 14/15,March 2018. In the assessment report, various deficiencies as noted above were found. The Executive Committee decided not to recommend the recognition in regard to MBBS degree. It was also recommended to the Central Government not to grant renewal of permission for the admission of a fresh batch of 150 MBBS students for the academic year 2018-19. The decision of the Executive Committee was communicated to the Oversight Committee, which in turn vide order dated 28.3.2018 approved the same. 38. The Executive Committee then vide letter dated 20.04.2018 communicated to the Government of India. At the same time, the MCI vide letter dated 20.04.2018 requested the respondent-Medical College to rectify the deficiencies and submit compliance within one month for further consideration of its case for grant of recognition. As against recommendation made by the MCI, the college filed the Writ Petition (C) No. 15171 of 2017 before the High Court of Kerala. The High Court directed Government of India to grant a hearing and to pass final order on or before 31.5.2018. The Government of India granted hearing opportunity on 21.5.2018. The college reported compliance on 22.5.2018. The MCI vide letter dated 25.5.2018 requested the Oversight Committee to consider the matter. The Oversight Committee on 28.5.2018 directed the MCI to follow the regulations. The Government ofIndia was informed by the MCI on 28.5.2018 that last date to send recommendation by MCI was up to 30.04.2018 which was already over, as such the case of the college could not have been considered for admission for 2018-2019 and the matter of the recognition was under consideration of the MCI and shall be decided appropriately after considering compliance. The Central Government passed the impugned order on 31.5.2018 and in view of the gross deficiencies decided not to grant renewal of permission admission for the batch of 150 MBBS students in the academic year 2018-2019. Aggrieved by the same, Writ Petition (C) No. 19543 of 2018 was filed in which prayer was made to grant recognition and to permit the students to be admitted. The said writ petition had been allowed by the impugned common judgment. 39. For the purpose of recognition, the Regulations of 1999 contains the provisions in Regulation 8(3)(1) wherein the process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies. It is the stand of the MCI also that the matter ofrecognition is under consideration and shall be considered in terms of said regulation after giving the opportunity to make good deficiency. However, with respect to admissions in 2018-19, the recommendation was made not to admit the students. 40. It is apparent that when the Hearing Committee has ordered on 21.5.2018 to consider the compliance and to make a fresh recommendation, the MCI declined to do so on the ground that time to make a recommendation was already over on 30.04.2018. The decision of Mridul Dhar v. Union of India, 2005 (2) SCC 65 , Priya Gupta v. State of Chhattisgarh 2012 (7) SCC 433 and Royal Medical Trust (Regd.) & Anr. v. Union of India 2015 (10) SCC 19 were referred to. It was clearly mentioned by the MCI in its letter dated 25.5.2018 that the matter could not be considered for renewal of permission for admission for the academic year 2018-2019, but compliance of the medical college for the purpose of recognition/approval under section 11 (2) of the Act was under consideration of the MCI and compliance verification/assessment and recommendations of the MCI would be sent to Central Government in due course of time. The matter was under consideration before the MCI for recognition, renewal for permission for admission had been declined by the MCI on 28.5.2018. Thereafter, the Government of India has passed the order on 31.5.2018 declining admission for 2018-19.
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and the recommendation of the MCI. The High Court has issued direction for fresh inspection and thereafter the MCI to consider the report after the grant of opportunity to remove defects if any. Firstly, it could not have issued such a direction in view of regulations and also the blanket direction that college should be permitted to remove the deficiencies if any found. Deficiencies can be removed, if found, within the permissible limits as provided in regulation 8(3), not in a case Regulation 8(3)(1)(a) or (b) is attracted. Thus, such kind of general direction issued without considering the provisions of the Regulations are wholly illegal and unwarranted and on inspection, the decision has to be taken in accordance with law as per regulations. Obviously, regulations would come into play as per outcome of an assessment. It cannot be predicted in advance what would be the outcome of inspection to decide in advance opportunity of removal of deficiencies. There may be a case where deficiencies are found by Assessors to be gross as contemplated in the proviso to Regulation 8(3) (1), they cannot be removed in that year. Even otherwise, the Court could not have at all ordered the admissions, as directed in the instant matter. High Court at the same time has ordered inspection and if the deficiencies are found to exist then the MCI and Government of India have been given liberty to take appropriate decision. Such orders may ruin the entire career of the students. Once permission to admit students is granted, it should not be such conditional one. Considering the deficiencies, it would be against the efficacious medical education and would amount to permit the unequipped medical college to impart medical education without proper infrastructure and faculty, patients serve as the object of teaching by such an approach ultimately interest of the society would suffer and half-baked doctors cannot be left loose on society like drones and parasites to deal with the life of patients in the absence of proper educational training. It would be dangerous and against the right to life itself, in case unequipped medical colleges are permitted to impart substandard medical education without proper facilities and infrastructure.In re: D.M. Education and Research Institute of Medical Sciences:34. Coming to the case of recognition and admission in of D.M. Education and Research Institute of Medical Sciences established by D.M. Education Research Foundation Trust, it was a case of recognition and admission. In the inspection dated 27.2.2018 and 14/15 March 2018 various deficiencies were found supported by photographs, videography etc.35. The background facts indicate that the college was granted permission for the academic sessions 2013-2014 and 2015-2016. For the academic year 2016-2017, it was granted conditional permission on the recommendation of the Oversight Committee to the effect that in case of failure to remove the deficiencies, it would be debarred for two academic years. Thereafter, on inspection assessment that was made on 5th and 6th December 2016, gross deficiencies were found and due to that the MCI on 28.1.2017 recommended the Central Government to debar the college for two academic years and to encash the bank guarantee. On 31.5.2017, Government of India accepted the recommendations of the MCI. As the first batch admitted in the college reached the final year, the application was filed by the college for grant of recognition. The college, aggrieved by the Government of Indias decision on 31.5.2017 filed WritPetition (C) No. 19753 of 2017 for permission to admit fresh batch of 150 M.B.B.S. students for the academic year 2017-2018. The writ petition was decided by order dated 2.8.2017 the High Court directed Government of India to give a personal hearing to the college and thereafter to pass a fresh reasoned order. The Government of India after considering the recommendation of the Hearing Committee decided on 14.8.2017 to confirm the conditional renewal of permission for the academic year 2016-2017 and that no fresh batch for 2017-2018 may be allowed.39. For the purpose of recognition, the Regulations of 1999 contains the provisions in Regulation 8(3)(1) wherein the process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies. It is the stand of the MCI also that the matter ofrecognition is under consideration and shall be considered in terms of said regulation after giving the opportunity to make good deficiency. However, with respect to admissions in 2018-19, the recommendation was made not to admit the students.40. It is apparent that when the Hearing Committee has ordered on 21.5.2018 to consider the compliance and to make a fresh recommendation, the MCI declined to do so on the ground that time to make a recommendation was already over on 30.04.2018. The decision of Mridul Dhar v. Union of India, 2005 (2) SCC 65 , Priya Gupta v. State of Chhattisgarh 2012 (7) SCC 433 and Royal Medical Trust (Regd.) & Anr. v. Union of India 2015 (10) SCC 19 were referred to. It was clearly mentioned by the MCI in its letter dated 25.5.2018 that the matter could not be considered for renewal of permission for admission for the academic year 2018-2019, but compliance of the medical college for the purpose of recognition/approval under section 11 (2) of the Act was under consideration of the MCI and compliance verification/assessment and recommendations of the MCI would be sent to Central Government in due course of time. The matter was under consideration before the MCI for recognition, renewal for permission for admission had been declined by the MCI on 28.5.2018. Thereafter, the Government of India has passed the order on 31.5.2018 declining admission for 2018-19.
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NITIN BANDOPANT SALAGRE Vs. THE STATE ELECTION COMMISSION & ANR | duly elected and the High Court is of opinion—(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes,the High Court shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.?33. As per Section 101, there are some limited grounds on which a candidate other than the returned candidate may be declared to have been elected. The judgments of this Court in D. Sanjeevayya (supra) and Election Commission of India (supra) have to be read dealing with Scheme under the Representation of the People Act, 1951. Judgments of this Court in the above two cases being dealing with Representation of People Act and the statutory Scheme for electing councillor in the Municipal Corporation being different, we have to rest our judgment on the statutory Scheme of Act, 1888.34. Another judgment relied by the appellant is Pramod Laxman Gudadhe Vs. Election Commission of India and Others (supra), which is again on Representation of People Act, 1951 and observations made by this Court have to be confined to the statutory Scheme of the Representation of People Act. This Court noticed in paragraph No.16 of the above judgment earlier judgment of this Court in Election Commission of India case, in which following has been laid down:-?16. The Court in Election Commission of India case, (2011) 1 SCC 370 went on to say that the introduction of Section 151-A did not alter the position as far as the provisions of Section 84 and, consequently, Sections 98(c) and 101(b) of the Act are concerned, although a casual vacancy may have occurred within the meaning of Section 150 of the Act. The Court made a distinction between the two categories of vacancies, namely, vacancies in which election petitions had been filed and are pending and other vacancies where no such cases were filed and pending. The Court opined that in the first category of cases, the vacancies could not have been treated to be available for the purposes of filling up within the time prescribed under Section 151-A of the Act merely because a member of the House of a Legislature of a State had resigned and the same had been accepted by the Speaker. To arrive at the said conclusion, emphasis was laid on Section 84 of the Act. In the second category of cases, the Court pronounced that the vacancies would have to be construed as clear vacancies warranting action underSection 151-A of the Act.?35. We have already observed that applicability of Section 34 with respect to filling up of casual vacancy under Section 9 shall arise only when an election petition is already pending and has been filed by a candidate claiming declaration in favour of a person, who has secured the second highest votes. When there is no election petition pending seeking such declaration, casual vacancy underSection 9 has to be filled up without any impediment. We further make it clear that when Section 9second part provides that casual vacancy has to be filled up in the manner as provided under Section 34, the conditions enumerated in Section 34 has to be strictly construed. Thus, when election of any councillor is set aside or it fails, only then Section 34 has to be looked into. Section 34 may not be attracted in all categories of casual vacancies as referred to in Section 9 but present case being a case where returned candidates having been declared disqualified due to invalidation of caste certificate, i.e., the election stand in law annulled and seat declared vacant, the applicability of Section 34 cannot be denied.36. From the foregoing discussions, with regard to statutory Scheme under Act, 1888 regarding filling up of casual vacancy, we arrive at following conclusions:-(i) By mere pendency of election petition filling up of casual vacancy is not to be deferred or postponed. State Election Commission before proceeding to fill up a casual vacancy under Section 9 has to advert to the statutory prescription under Section 34 and take a conscious decision by due application of mind and thereafter to proceed to fill up vacancy arose. In each case of casual vacancy, there may be different circumstances without adverting to which State Election Commission cannot decide to fill up the casual vacancy.(ii) A casual vacancy caused due to invalidation of caste certificate of returned candidate has to be filled up in a manner provided in Section 34 of Act, 1888.(iii) When an election petition has already been filed challenging the election of returned candidate since before invalidation of his or her caste certificate in which election petition prayer is also made to declare the candidate securing second highest votes as deemed elected, the State Election Commission may not call for fresh election without considering the above aspect of the matter.37. In the present cases, filing of affidavit having been dispensed with by the High Court in the writ petition, there is no affidavit of State Election Commission on record to indicate as to whether State Election Commission has adverted to Section 34 before starting process of holding byelections to fill up the casual vacancy or not. We are of the view that the Commission may be asked to take a fresh decision regarding holding of byelections to fill up casual vacancy in these cases.38. Although Commission has issued notification dated 09.05.2019 on subject regarding preparation of voters list for byelection for filling up vacancies of Municipal Corporation but no notification having yet been issued fixing date for byelection of wards in question, we are of the view that State Election Commission may take a fresh decision before issuing any notification fixing dates for holding a byelection of wards in question keeping in view the observations and conclusions as above. | 1[ds]9. The present is a case where returned candidates have been held to be disqualified on account of invalidation of caste certificate. The disqualification of the returned candidates, who were initially elected from concerned ward of the Municipal Corporation has attained finality giving rise to casual vacancy in the office of councillor.Thus, answer to all issues, which have arisen in these appeals has to be deciphered from the statutory Scheme of Act, 1888. ?Disqualification of a councillor? is one of the circumstances mentioned in Section 9, which causes a deemed casual vacancy in the office. Section 9 of the Act also contemplates filling up of the casualsecond part of Section 9, i.e., ?the casual vacancy in the office of an elected councillor shall be filled up in the manner provided in Section 34? beennot there in Section 9, there was no difficulty in confining operation of Section 34 only to election petition under Section 33(2).18. The phrase ?The casual vacancy in the office of an elected councillor shall be filled up in the manner provided in Section 34.? was added in Act, 1888 by Bombay Act XXVIII ofabove judgments of this Court do recognise a discretion in Election Commission to hold a byelection.It is relevant to notice that Scheme in the Representation of the People Act, 1951 is little different with regard to filling up of casual vacancies.We have already observed that applicability of Section 34 with respect to filling up of casual vacancy under Section 9 shall arise only when an election petition is already pending and has been filed by a candidate claiming declaration in favour of a person, who has secured the second highest votes. When there is no election petition pending seeking such declaration, casual vacancy underSection 9 has to be filled up without any impediment. We further make it clear that when Section 9second part provides that casual vacancy has to be filled up in the manner as provided under Section 34, the conditions enumerated in Section 34 has to be strictly construed. Thus, when election of any councillor is set aside or it fails, only then Section 34 has to be looked into. Section 34 may not be attracted in all categories of casual vacancies as referred to in Section 9 but present case being a case where returned candidates having been declared disqualified due to invalidation of caste certificate, i.e., the election stand in law annulled and seat declared vacant, the applicability of Section 34 cannot be denied.36. From the foregoing discussions, with regard to statutory Scheme under Act, 1888 regarding filling up of casual vacancy, we arrive at followingBy mere pendency of election petition filling up of casual vacancy is not to be deferred or postponed. State ElectionCommission before proceeding to fill up a casual vacancy under Section 9 has to advert to the statutory prescription under Section 34 and take a conscious decision by due application of mind and thereafter to proceed to fill up vacancy arose. In each case of casual vacancy, there may be different circumstances without adverting to which State Election Commission cannot decide to fill up the casualA casual vacancy caused due to invalidation of caste certificate of returned candidate has to be filled up in a manner provided in Section 34 of Act,When an election petition has already been filed challenging the election of returned candidate since before invalidation of his or her caste certificate in which election petition prayer is also made to declare the candidate securing second highest votes as deemed elected, the State Election Commission may not call for fresh election without considering the above aspect of the matter.In the present cases, filing of affidavit having been dispensed with by the High Court in the writ petition, there is no affidavit of State Election Commission on record to indicate as to whether State Election Commission has adverted to Section 34 before starting process of holding byelections to fill up the casual vacancy or not. We are of the view that the Commission may be asked to take a fresh decision regarding holding of byelections to fill up casual vacancy in these cases.38. Although Commission has issued notification dated 09.05.2019 on subject regarding preparation of voters list for byelection for filling up vacancies of Municipal Corporation but no notification having yet been issued fixing date for byelection of wards in question, we are of the view that State Election Commission may take a fresh decision before issuing any notification fixing dates for holding a byelection of wards in question keeping in view the observations and conclusions asthe cases before us, the returned candidate is disqualified by invalidation of caste certificate, the outcome of invalidation of caste certificate is same as setting aside their election. When we read Section 9 and Section 34, the event of invalidation of caste certificate of returned candidate shall also be covered by Section 34(1) and contingency as provided under Section 34(1) shall be held applicable in that event.26. Section 33(2) incorporated the statutory Scheme that if Chief Judge of Small Causes Court finds that the person whose election is objected to is disqualified for being a councillor, or if he finds that the election is not a valid election, he shall set it aside. In either case, he shall direct that the candidate in whose favour the next highest number of valid votes has been recorded shall be deemed to have been elected. Thus, the statutory Schemerecognises the person, who has secured second highest votes to be deemed to be elected, which provision has been incorporated for specific purpose and object. It is a matter of common knowledge that holding of election is a cumbersome process involving lot of time, involvement of manpower and expenditure. Municipal Corporations under the Act, 1888 has been entrusted with large number of powers and jurisdiction and every five years, the election for constituting Municipal Corporation is to be undertaken. The right in a person, who has secured second highest number of votes has been recognised to obviate holding of fresh elections. Thus, the Legislative Scheme itself recognises declaration of a person securing second highest votes as deemed to have been elected. The said purpose and object has to be given effect to while interpreting the provisions of the Act. As noticed above, when second part of Section 9 specifically provides for filling up of the casual vacancy in the manner as provided in Section 34, the question as to ?whether there is no other candidate, who can be deemed to be elected in his place? becomes relevant and necessary.the said question, the State Election Commission has to apply its mind and look into all necessary facts pertaining to ward in question. It is further relevant to notice that the requirement of finding out answer to the above question is relevant when an election petition has already been filed by a person claiming that there is a candidate, who can be deemed to be elected in place of returned candidate. When there are no election petitions filed under Section 33 or where no prayer is made for declaring candidate obtaining second highest votes, the above question becomes irrelevant and has no bearing on filling up of the casual vacancy. The use of the expression in Section 9, i.e., ?as soon as it conveniently may be? indicates that Statute gives discretion to the State Election Commission to hold byelections for a casual vacancy. Statute does not mandate holding of byelections, i.e., filling up of casual vacancy as soon as the casual vacancy arises. Discretion has been given to the Commission for a purpose and object.27. One of the factors in taking a decision regarding filling up of the casual vacancy is as tois no other candidate, who can be deemed to be elected in place of returned candidate. All these aspects have to be looked into and considered by State Election Commission before proceeding to hold elections. But we make it clear that the statutory Scheme does not indicate that by mere filing of an election petition questioning the election of returned candidate of ward and seeking a declaration in favour of the election petitioner shall ipso facto put an embargo in the right of State Election Commission to proceed to fill up the casual vacancy. The State Election Commission has been statutorily obliged to find out as to whether there is no other candidate, who can be deemed to be elected in place of returned candidate, only thereafter it is obliged to hold fresh elections. It postulates a decision making process by due application of mind considering all relevant and necessary factors, eschewing the irrelevant.As per Section 101, there are some limited grounds on which a candidate other than the returned candidate may be declared to have been elected. | 1 | 8,035 | 1,586 | ### 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:
duly elected and the High Court is of opinion—(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes,the High Court shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.?33. As per Section 101, there are some limited grounds on which a candidate other than the returned candidate may be declared to have been elected. The judgments of this Court in D. Sanjeevayya (supra) and Election Commission of India (supra) have to be read dealing with Scheme under the Representation of the People Act, 1951. Judgments of this Court in the above two cases being dealing with Representation of People Act and the statutory Scheme for electing councillor in the Municipal Corporation being different, we have to rest our judgment on the statutory Scheme of Act, 1888.34. Another judgment relied by the appellant is Pramod Laxman Gudadhe Vs. Election Commission of India and Others (supra), which is again on Representation of People Act, 1951 and observations made by this Court have to be confined to the statutory Scheme of the Representation of People Act. This Court noticed in paragraph No.16 of the above judgment earlier judgment of this Court in Election Commission of India case, in which following has been laid down:-?16. The Court in Election Commission of India case, (2011) 1 SCC 370 went on to say that the introduction of Section 151-A did not alter the position as far as the provisions of Section 84 and, consequently, Sections 98(c) and 101(b) of the Act are concerned, although a casual vacancy may have occurred within the meaning of Section 150 of the Act. The Court made a distinction between the two categories of vacancies, namely, vacancies in which election petitions had been filed and are pending and other vacancies where no such cases were filed and pending. The Court opined that in the first category of cases, the vacancies could not have been treated to be available for the purposes of filling up within the time prescribed under Section 151-A of the Act merely because a member of the House of a Legislature of a State had resigned and the same had been accepted by the Speaker. To arrive at the said conclusion, emphasis was laid on Section 84 of the Act. In the second category of cases, the Court pronounced that the vacancies would have to be construed as clear vacancies warranting action underSection 151-A of the Act.?35. We have already observed that applicability of Section 34 with respect to filling up of casual vacancy under Section 9 shall arise only when an election petition is already pending and has been filed by a candidate claiming declaration in favour of a person, who has secured the second highest votes. When there is no election petition pending seeking such declaration, casual vacancy underSection 9 has to be filled up without any impediment. We further make it clear that when Section 9second part provides that casual vacancy has to be filled up in the manner as provided under Section 34, the conditions enumerated in Section 34 has to be strictly construed. Thus, when election of any councillor is set aside or it fails, only then Section 34 has to be looked into. Section 34 may not be attracted in all categories of casual vacancies as referred to in Section 9 but present case being a case where returned candidates having been declared disqualified due to invalidation of caste certificate, i.e., the election stand in law annulled and seat declared vacant, the applicability of Section 34 cannot be denied.36. From the foregoing discussions, with regard to statutory Scheme under Act, 1888 regarding filling up of casual vacancy, we arrive at following conclusions:-(i) By mere pendency of election petition filling up of casual vacancy is not to be deferred or postponed. State Election Commission before proceeding to fill up a casual vacancy under Section 9 has to advert to the statutory prescription under Section 34 and take a conscious decision by due application of mind and thereafter to proceed to fill up vacancy arose. In each case of casual vacancy, there may be different circumstances without adverting to which State Election Commission cannot decide to fill up the casual vacancy.(ii) A casual vacancy caused due to invalidation of caste certificate of returned candidate has to be filled up in a manner provided in Section 34 of Act, 1888.(iii) When an election petition has already been filed challenging the election of returned candidate since before invalidation of his or her caste certificate in which election petition prayer is also made to declare the candidate securing second highest votes as deemed elected, the State Election Commission may not call for fresh election without considering the above aspect of the matter.37. In the present cases, filing of affidavit having been dispensed with by the High Court in the writ petition, there is no affidavit of State Election Commission on record to indicate as to whether State Election Commission has adverted to Section 34 before starting process of holding byelections to fill up the casual vacancy or not. We are of the view that the Commission may be asked to take a fresh decision regarding holding of byelections to fill up casual vacancy in these cases.38. Although Commission has issued notification dated 09.05.2019 on subject regarding preparation of voters list for byelection for filling up vacancies of Municipal Corporation but no notification having yet been issued fixing date for byelection of wards in question, we are of the view that State Election Commission may take a fresh decision before issuing any notification fixing dates for holding a byelection of wards in question keeping in view the observations and conclusions as above.
### Response:
1
### Explanation:
Section 9 has to advert to the statutory prescription under Section 34 and take a conscious decision by due application of mind and thereafter to proceed to fill up vacancy arose. In each case of casual vacancy, there may be different circumstances without adverting to which State Election Commission cannot decide to fill up the casualA casual vacancy caused due to invalidation of caste certificate of returned candidate has to be filled up in a manner provided in Section 34 of Act,When an election petition has already been filed challenging the election of returned candidate since before invalidation of his or her caste certificate in which election petition prayer is also made to declare the candidate securing second highest votes as deemed elected, the State Election Commission may not call for fresh election without considering the above aspect of the matter.In the present cases, filing of affidavit having been dispensed with by the High Court in the writ petition, there is no affidavit of State Election Commission on record to indicate as to whether State Election Commission has adverted to Section 34 before starting process of holding byelections to fill up the casual vacancy or not. We are of the view that the Commission may be asked to take a fresh decision regarding holding of byelections to fill up casual vacancy in these cases.38. Although Commission has issued notification dated 09.05.2019 on subject regarding preparation of voters list for byelection for filling up vacancies of Municipal Corporation but no notification having yet been issued fixing date for byelection of wards in question, we are of the view that State Election Commission may take a fresh decision before issuing any notification fixing dates for holding a byelection of wards in question keeping in view the observations and conclusions asthe cases before us, the returned candidate is disqualified by invalidation of caste certificate, the outcome of invalidation of caste certificate is same as setting aside their election. When we read Section 9 and Section 34, the event of invalidation of caste certificate of returned candidate shall also be covered by Section 34(1) and contingency as provided under Section 34(1) shall be held applicable in that event.26. Section 33(2) incorporated the statutory Scheme that if Chief Judge of Small Causes Court finds that the person whose election is objected to is disqualified for being a councillor, or if he finds that the election is not a valid election, he shall set it aside. In either case, he shall direct that the candidate in whose favour the next highest number of valid votes has been recorded shall be deemed to have been elected. Thus, the statutory Schemerecognises the person, who has secured second highest votes to be deemed to be elected, which provision has been incorporated for specific purpose and object. It is a matter of common knowledge that holding of election is a cumbersome process involving lot of time, involvement of manpower and expenditure. Municipal Corporations under the Act, 1888 has been entrusted with large number of powers and jurisdiction and every five years, the election for constituting Municipal Corporation is to be undertaken. The right in a person, who has secured second highest number of votes has been recognised to obviate holding of fresh elections. Thus, the Legislative Scheme itself recognises declaration of a person securing second highest votes as deemed to have been elected. The said purpose and object has to be given effect to while interpreting the provisions of the Act. As noticed above, when second part of Section 9 specifically provides for filling up of the casual vacancy in the manner as provided in Section 34, the question as to ?whether there is no other candidate, who can be deemed to be elected in his place? becomes relevant and necessary.the said question, the State Election Commission has to apply its mind and look into all necessary facts pertaining to ward in question. It is further relevant to notice that the requirement of finding out answer to the above question is relevant when an election petition has already been filed by a person claiming that there is a candidate, who can be deemed to be elected in place of returned candidate. When there are no election petitions filed under Section 33 or where no prayer is made for declaring candidate obtaining second highest votes, the above question becomes irrelevant and has no bearing on filling up of the casual vacancy. The use of the expression in Section 9, i.e., ?as soon as it conveniently may be? indicates that Statute gives discretion to the State Election Commission to hold byelections for a casual vacancy. Statute does not mandate holding of byelections, i.e., filling up of casual vacancy as soon as the casual vacancy arises. Discretion has been given to the Commission for a purpose and object.27. One of the factors in taking a decision regarding filling up of the casual vacancy is as tois no other candidate, who can be deemed to be elected in place of returned candidate. All these aspects have to be looked into and considered by State Election Commission before proceeding to hold elections. But we make it clear that the statutory Scheme does not indicate that by mere filing of an election petition questioning the election of returned candidate of ward and seeking a declaration in favour of the election petitioner shall ipso facto put an embargo in the right of State Election Commission to proceed to fill up the casual vacancy. The State Election Commission has been statutorily obliged to find out as to whether there is no other candidate, who can be deemed to be elected in place of returned candidate, only thereafter it is obliged to hold fresh elections. It postulates a decision making process by due application of mind considering all relevant and necessary factors, eschewing the irrelevant.As per Section 101, there are some limited grounds on which a candidate other than the returned candidate may be declared to have been elected.
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Gannon Dunkerley & Co. Ltd Vs. Union Of India | the site, were referred to arbitration, but not the claims for revision of rates due to complex nature of the work and increase in the quantity of work. The arbitrator rejected the claims of the Company in respect of the matters which were referred.5. Thereafter the appellant Company filed a suit on August 9, 1956, against the Union of India, for a decree for Rs. 3,62,674/9/6 being the amount claimed at the rate of 421/2 per cent above the contract rate, in the alternative, a decree for Rs. 2,44,000 being the amount claimed at the rate of 28.1 per cent above the contract rate as recommended by the Executive Engineer, and in the further alternative, a decree for Rs. 1,36,222 at the rate of 18.17 per cent above the contract rate as certified by the Superintending Engineer. The Union of India contended, inter alia, that the claim was barred by the law of limitation.6. The Trial Court held that the claim was not barred by the law of limitation and decreed the claim for Rs. 1,36,222 as certified by the Superintending Engineer. Against the decree passed by the Trial Court the appellant Company as well as the Union of India appealed to the High Court.7. Before the High Court in support of the appeal only the plea of limitation was pressed on behalf of the Union of India. In the view of the High Court the claim was governed either by Art. 56 or by Art. 115 of the First Schedule to the Limitation Act, 1908, and the suit not having been filed within three years of the date on which the work was done and in any event of the date on which the claim was rejected was barred. The appellant Company has appealed to this Court with certificate.8. The appellant Company had undertaken under the terms of the contract to do specific construction work at basic rates. The Engineer-in-charge was by the terms of cl. 12 of the agreement competent to give instructions for work not covered by the terms of the contract, and it was provided that remuneration shall be paid at the rate fixed by the Engineer-in-charge for such additional work, and in case of dispute the decision of the Superintending Engineer shall be final. It is common ground that the claim made by the appellant Company was not covered by the arbitration agreement and on that account it was not referred to the arbitrator. The claim in suit related to the revision of rates due to the complex nature of the work and due to increase in the quantity of work and also grant of contracts to other competing parties at substantially higher rates and other related matters.9. Article 56 of the First Schedule to the Indian Limitation Act, 1908, prescribes a period of three years for a suit for the price of work done by the plaintiff for the defendant at his request, where no time has been fixed or payment, and the period of limitation commences to run from the date when the work is done.A suit is governed by Art. 56 if it arises out of a contract to pay the price of work done at the request of the defendant. The claim in the present case is for payment at an additional rate over the stipulated rate in view of change in circumstances, and not for price of work done by the appellant Company. It is true that additional work was done at the request of the Engineer-in-charge, but the claim in suit was not for the price of work done but for enhanced rates in view of altered circumstances.10. Article 115 of the First Schedule to the Limitation Act is a residuary article dealing with the claim for compensation for the breach of any contract, express or implied, not in writing registered or implied, not in writing registered and not specially provided for, in the First Schedule.The period of limitation in such cases is three years and it commences to run when the contract is broken, or where there are successive breaches when the breach in respect of which the suit is instituted occurs, or where the breach in continuing when it ceases. The suit filed by the appellant Company is not a suit for compensation for breach of contract express or implied: it is a suit for enhanced rate because of change of circumstances, and in respect of work not covered by the contract. The additional work directed by the Engineer-in-charge when carried out may be deemed to be done under the terms of the contract; but the claim for enhanced rates does not arise out of the contract; it is in any case not a claim for compensation for breach of contract.11. The claim is therefore not covered by any specific article under the First Schedule, and must fall within the terms of Art. 120. The Solicitor-General appearing on behalf of the Union of India contended that even if the claim falls within the terms of Art. 120 of the Limitation Act, it was barred, for the appellant Company had in the suit made a claim for work done more than six years before the institution of the suit. Counsel submitted that under Art. 120 the period of limitation commences to run from the date on which the defendant obtains the benefit of the work done by the plaintiff.But under Art. 120 of the Limitation Act the period of six years for suits for which no period of limitation is provided elsewhere in the Schedule commences to run when the right to sue accures. In our judgment, there is no right to use until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted: Bolo V. Koklan , 57 Ind App 325 at p. 331 = (AIR 1930 PC 270 at p. 272). | 1[ds]9. Article 56 of the First Schedule to the Indian Limitation Act, 1908, prescribes a period of three years for a suit for the price of work done by the plaintiff for the defendant at his request, where no time has been fixed or payment, and the period of limitation commences to run from the date when the work is done.A suit is governed by Art. 56 if it arises out of a contract to pay the price of work done at the request of the defendant. The claim in the present case is for payment at an additional rate over the stipulated rate in view of change in circumstances, and not for price of work done by the appellant Company. It is true that additional work was done at the request of the Engineer-in-charge, but the claim in suit was not for the price of work done but for enhanced rates in view of altered circumstances.10. Article 115 of the First Schedule to the Limitation Act is a residuary article dealing with the claim for compensation for the breach of any contract, express or implied, not in writing registered or implied, not in writing registered and not specially provided for, in the First Schedule.The period of limitation in such cases is three years and it commences to run when the contract is broken, or where there are successive breaches when the breach in respect of which the suit is instituted occurs, or where the breach in continuing when it ceases. The suit filed by the appellant Company is not a suit for compensation for breach of contract express or implied: it is a suit for enhanced rate because of change of circumstances, and in respect of work not covered by the contract. The additional work directed by the Engineer-in-charge when carried out may be deemed to be done under the terms of the contract; but the claim for enhanced rates does not arise out of the contract; it is in any case not a claim for compensation for breach of contract.11. The claim is therefore not covered by any specific article under the First Schedule, and must fall within the terms of Art.our judgment, there is no right to use until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted: Bolo V. Koklan , 57 Ind App 325 at p. 331 = (AIR 1930 PC 270 at p. 272). | 1 | 2,049 | 462 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the site, were referred to arbitration, but not the claims for revision of rates due to complex nature of the work and increase in the quantity of work. The arbitrator rejected the claims of the Company in respect of the matters which were referred.5. Thereafter the appellant Company filed a suit on August 9, 1956, against the Union of India, for a decree for Rs. 3,62,674/9/6 being the amount claimed at the rate of 421/2 per cent above the contract rate, in the alternative, a decree for Rs. 2,44,000 being the amount claimed at the rate of 28.1 per cent above the contract rate as recommended by the Executive Engineer, and in the further alternative, a decree for Rs. 1,36,222 at the rate of 18.17 per cent above the contract rate as certified by the Superintending Engineer. The Union of India contended, inter alia, that the claim was barred by the law of limitation.6. The Trial Court held that the claim was not barred by the law of limitation and decreed the claim for Rs. 1,36,222 as certified by the Superintending Engineer. Against the decree passed by the Trial Court the appellant Company as well as the Union of India appealed to the High Court.7. Before the High Court in support of the appeal only the plea of limitation was pressed on behalf of the Union of India. In the view of the High Court the claim was governed either by Art. 56 or by Art. 115 of the First Schedule to the Limitation Act, 1908, and the suit not having been filed within three years of the date on which the work was done and in any event of the date on which the claim was rejected was barred. The appellant Company has appealed to this Court with certificate.8. The appellant Company had undertaken under the terms of the contract to do specific construction work at basic rates. The Engineer-in-charge was by the terms of cl. 12 of the agreement competent to give instructions for work not covered by the terms of the contract, and it was provided that remuneration shall be paid at the rate fixed by the Engineer-in-charge for such additional work, and in case of dispute the decision of the Superintending Engineer shall be final. It is common ground that the claim made by the appellant Company was not covered by the arbitration agreement and on that account it was not referred to the arbitrator. The claim in suit related to the revision of rates due to the complex nature of the work and due to increase in the quantity of work and also grant of contracts to other competing parties at substantially higher rates and other related matters.9. Article 56 of the First Schedule to the Indian Limitation Act, 1908, prescribes a period of three years for a suit for the price of work done by the plaintiff for the defendant at his request, where no time has been fixed or payment, and the period of limitation commences to run from the date when the work is done.A suit is governed by Art. 56 if it arises out of a contract to pay the price of work done at the request of the defendant. The claim in the present case is for payment at an additional rate over the stipulated rate in view of change in circumstances, and not for price of work done by the appellant Company. It is true that additional work was done at the request of the Engineer-in-charge, but the claim in suit was not for the price of work done but for enhanced rates in view of altered circumstances.10. Article 115 of the First Schedule to the Limitation Act is a residuary article dealing with the claim for compensation for the breach of any contract, express or implied, not in writing registered or implied, not in writing registered and not specially provided for, in the First Schedule.The period of limitation in such cases is three years and it commences to run when the contract is broken, or where there are successive breaches when the breach in respect of which the suit is instituted occurs, or where the breach in continuing when it ceases. The suit filed by the appellant Company is not a suit for compensation for breach of contract express or implied: it is a suit for enhanced rate because of change of circumstances, and in respect of work not covered by the contract. The additional work directed by the Engineer-in-charge when carried out may be deemed to be done under the terms of the contract; but the claim for enhanced rates does not arise out of the contract; it is in any case not a claim for compensation for breach of contract.11. The claim is therefore not covered by any specific article under the First Schedule, and must fall within the terms of Art. 120. The Solicitor-General appearing on behalf of the Union of India contended that even if the claim falls within the terms of Art. 120 of the Limitation Act, it was barred, for the appellant Company had in the suit made a claim for work done more than six years before the institution of the suit. Counsel submitted that under Art. 120 the period of limitation commences to run from the date on which the defendant obtains the benefit of the work done by the plaintiff.But under Art. 120 of the Limitation Act the period of six years for suits for which no period of limitation is provided elsewhere in the Schedule commences to run when the right to sue accures. In our judgment, there is no right to use until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted: Bolo V. Koklan , 57 Ind App 325 at p. 331 = (AIR 1930 PC 270 at p. 272).
### Response:
1
### Explanation:
9. Article 56 of the First Schedule to the Indian Limitation Act, 1908, prescribes a period of three years for a suit for the price of work done by the plaintiff for the defendant at his request, where no time has been fixed or payment, and the period of limitation commences to run from the date when the work is done.A suit is governed by Art. 56 if it arises out of a contract to pay the price of work done at the request of the defendant. The claim in the present case is for payment at an additional rate over the stipulated rate in view of change in circumstances, and not for price of work done by the appellant Company. It is true that additional work was done at the request of the Engineer-in-charge, but the claim in suit was not for the price of work done but for enhanced rates in view of altered circumstances.10. Article 115 of the First Schedule to the Limitation Act is a residuary article dealing with the claim for compensation for the breach of any contract, express or implied, not in writing registered or implied, not in writing registered and not specially provided for, in the First Schedule.The period of limitation in such cases is three years and it commences to run when the contract is broken, or where there are successive breaches when the breach in respect of which the suit is instituted occurs, or where the breach in continuing when it ceases. The suit filed by the appellant Company is not a suit for compensation for breach of contract express or implied: it is a suit for enhanced rate because of change of circumstances, and in respect of work not covered by the contract. The additional work directed by the Engineer-in-charge when carried out may be deemed to be done under the terms of the contract; but the claim for enhanced rates does not arise out of the contract; it is in any case not a claim for compensation for breach of contract.11. The claim is therefore not covered by any specific article under the First Schedule, and must fall within the terms of Art.our judgment, there is no right to use until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted: Bolo V. Koklan , 57 Ind App 325 at p. 331 = (AIR 1930 PC 270 at p. 272).
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Pushpam Pharmaceuticals Company Vs. Collector of Central Excise, Bombay | 1. The only question that arises for consideration in this appeal is whether the Department was justified in initiating proceedings for short levy by invoking proviso to Section 11-A of the Central Excises and Salt Act, 1944 for the years 1978-79, 1979-80, 1980-81 and 1981-82. 2. The appellant manufactured an item falling under Tariff Entry 14-E as well as another item under Item 68. The item under Item 68 was fully exempt from payment of duty. The value of item manufactured under Tariff Item 14-E in each year was less than Rs 5 lakhs. Notification No. 111 of 1978 was issued on 9-5-1978 exempting the turnover of goods manufactured under Item 14-E if it was below Rs 5 lakhs. Therefore, the appellant surrendered its licence and it was cancelled. Notice were, however, issued because if the turnover of the two items, i.e. exempted under Item 68 for the years in dispute was clubbed together with turnover of Item 14-E, then it exceeded Rs 5 lakhs and the goods became liable to duty. The Department invoked extended period of limitation of five years as according to it the duty was short-levied due to suppression of the fact that if the turnover was clubbed then it exceeded Rupees Five lakhs. 3. Law about excisability of exempted goods was settled by this Court in Wallace Flour Mills Co. Ltd. v. CCE [ 1989 (4) SCC 592 : 1990 SCC(Tax) 10]. Till then conflicting decisions were rendered by different High Courts and Tribunals and it was not settled whether the turnover of assessable and exempted goods were liable to be clubbed for determining liability. Therefore, two questions arise whether the appellant was bound in the state of uncertainty in law to include the turnover of the two items and if it failed to do so then it amounted to suppression of fact and second whether it was the duty of appellant to keep the Department informed about the turnover of the goods which were not liable to any duty. No rule could be pointed out requiring a manufacturer to disclose the turnover of exempted goods. Even assuming it was, the appellant could not be held guilty of suppression when the law itself was not certain. 4. Section 11-A empowers the Department to reopen proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. | 1[ds]No rule could be pointed out requiring a manufacturer to disclose the turnover of exempted goods. Even assuming it was, the appellant could not be held guilty of suppression when the law itself was notempowers the Department to reopen proceedings if the levy has beenor not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression | 1 | 636 | 264 | ### 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. The only question that arises for consideration in this appeal is whether the Department was justified in initiating proceedings for short levy by invoking proviso to Section 11-A of the Central Excises and Salt Act, 1944 for the years 1978-79, 1979-80, 1980-81 and 1981-82. 2. The appellant manufactured an item falling under Tariff Entry 14-E as well as another item under Item 68. The item under Item 68 was fully exempt from payment of duty. The value of item manufactured under Tariff Item 14-E in each year was less than Rs 5 lakhs. Notification No. 111 of 1978 was issued on 9-5-1978 exempting the turnover of goods manufactured under Item 14-E if it was below Rs 5 lakhs. Therefore, the appellant surrendered its licence and it was cancelled. Notice were, however, issued because if the turnover of the two items, i.e. exempted under Item 68 for the years in dispute was clubbed together with turnover of Item 14-E, then it exceeded Rs 5 lakhs and the goods became liable to duty. The Department invoked extended period of limitation of five years as according to it the duty was short-levied due to suppression of the fact that if the turnover was clubbed then it exceeded Rupees Five lakhs. 3. Law about excisability of exempted goods was settled by this Court in Wallace Flour Mills Co. Ltd. v. CCE [ 1989 (4) SCC 592 : 1990 SCC(Tax) 10]. Till then conflicting decisions were rendered by different High Courts and Tribunals and it was not settled whether the turnover of assessable and exempted goods were liable to be clubbed for determining liability. Therefore, two questions arise whether the appellant was bound in the state of uncertainty in law to include the turnover of the two items and if it failed to do so then it amounted to suppression of fact and second whether it was the duty of appellant to keep the Department informed about the turnover of the goods which were not liable to any duty. No rule could be pointed out requiring a manufacturer to disclose the turnover of exempted goods. Even assuming it was, the appellant could not be held guilty of suppression when the law itself was not certain. 4. Section 11-A empowers the Department to reopen proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression.
### Response:
1
### Explanation:
No rule could be pointed out requiring a manufacturer to disclose the turnover of exempted goods. Even assuming it was, the appellant could not be held guilty of suppression when the law itself was notempowers the Department to reopen proceedings if the levy has beenor not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression
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A.Savariar Vs. The Secretary Tnpsc | leveled against the appellant were that he had unauthorisedly produced office note dated 17.2.1990 in the Court and went to the examination hall by neglecting his office work. 15. On behalf of the Commission oral evidence is said to have been adduced to substantiate the allegations leveled against the appellant but neither the report of the Enquiry Officer nor the orders passed by the Controller of Examinations or the Chairman of the Commission make a mention of that evidence and none of them relied upon the same for recording a finding that the appellant had arrogated to himself the powers of his superiors and unauthorisedly appointed Invigilators. As a matter of fact, Enquiry Officer simply referred to the statement of the appellant, analysed the same and concluded that Charges No. 1, 2, 4 and 6 have been proved against him. It is thus evident that the inquiry report was not prepared in consonance with Rule 17(b)(i) of the Rules. 16. The Controller of Examinations went a step further and recorded a finding that the actions of the appellant had resulted in compromising the integrity of the Commission as a whole. The concerned officer did so despite the fact that the appellant had not been charged with the allegation that he had by his action/omission compromised with the integrity of the Commission and no evidence was produced to substantiate the same. The Appellate Authority, i.e., the Chairman recorded detailed reasons but the order passed by him also does not make reference to the evidence produced for proving the charges leveled against the appellant. 17. The learned Single Judge and the Division Bench of the High Court failed to notice the aforesaid fatal flaw in the orders passed by the Controller of Examinations and the Chairman and decided the matter by assuming that even though the Commission had not adduced any tangible evidence to prove the charges against the appellant, the same stood proved because of the weakness of his defence. 18. In Delhi Cloth and General Mills Company v. Ludh Budh Singh (1972) 1 SCC 595 , this Court held that it is the primary duty of the person making the allegations to establish the same by producing evidence and not for the delinquent to produce negative evidence to prove his innocence. 19. In Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570 , this Court considered the question whether mere production of the document by the department is sufficient for holding the employee guilty and observed: “Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.” 20. De hors the above conclusion, we are satisfied that the punishment of dismissal imposed on the appellant is legally unsustainable. The Controller of Examinations and the Chairman of the Commission did not consider the impact of the alleged unauthorized action of the appellant in nominating/deputing substitute Invigilators at the particular examination centre. One can appreciate the Commission’s concern about mixing of the question papers of afternoon examination with the question papers of morning examination, but in the absence of any evidence to show that ‘P’ Section of the Commission, where the appellant was posted, had anything to do with the question papers or that he had custody of the question papers, the Commission was not at all justified in holding him guilty of the incident which occurred at the examination centre. Indeed, it is nobody’s case that the appellant was, in any way, responsible for mixing of the question papers. Therefore, the findings recorded by the Inquiry Officer and the two Authorities that the appellant was guilty of serious misconduct cannot be sustained.21. The learned Single Judge and the Division Bench failed to take cognizance of the fact that the branch in which the appellant was working was not concerned with custody of the question papers and he is not shown to have handled the bundles of the question papers at the examination centre. Therefore, the gravity of the misconduct found proved against the appellant, viz., nomination/deputation of the Invigilators at the particular examination centre was not such which could influence any person of reasonable prudence to impose the extreme penalty of dismissal from service.22. In view of the above discussion, we may have remitted the case to the Commission for reconsideration of the entire matter but, keeping in view the fact that the appellant has already retired from service and he had put in unblemished service of 17 years, we do not consider it proper to adopt that course. | 1[ds]20. De hors the above conclusion, we are satisfied that the punishment of dismissal imposed on the appellant is legally unsustainable. The Controller of Examinations and the Chairman of the Commission did not consider the impact of the alleged unauthorized action of the appellant in nominating/deputing substitute Invigilators at the particular examination centre. One can appreciate theconcern about mixing of the question papers of afternoon examination with the question papers of morning examination, but in the absence of any evidence to show thatSection of the Commission, where the appellant was posted, had anything to do with the question papers or that he had custody of the question papers, the Commission was not at all justified in holding him guilty of the incident which occurred at the examination centre. Indeed, it iscase that the appellant was, in any way, responsible for mixing of the question papers. Therefore, the findings recorded by the Inquiry Officer and the two Authorities that the appellant was guilty of serious misconduct cannot be sustained.21. The learned Single Judge and the Division Bench failed to take cognizance of the fact that the branch in which the appellant was working was not concerned with custody of the question papers and he is not shown to have handled the bundles of the question papers at the examination centre. Therefore, the gravity of the misconduct found proved against the appellant, viz., nomination/deputation of the Invigilators at the particular examination centre was not such which could influence any person of reasonable prudence to impose the extreme penalty of dismissal from service.22. In view of the above discussion, we may have remitted the case to the Commission for reconsideration of the entire matter but, keeping in view the fact that the appellant has already retired from service and he had put in unblemished service of 17 years, we do not consider it proper to adopt that course. | 1 | 3,845 | 344 | ### 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:
leveled against the appellant were that he had unauthorisedly produced office note dated 17.2.1990 in the Court and went to the examination hall by neglecting his office work. 15. On behalf of the Commission oral evidence is said to have been adduced to substantiate the allegations leveled against the appellant but neither the report of the Enquiry Officer nor the orders passed by the Controller of Examinations or the Chairman of the Commission make a mention of that evidence and none of them relied upon the same for recording a finding that the appellant had arrogated to himself the powers of his superiors and unauthorisedly appointed Invigilators. As a matter of fact, Enquiry Officer simply referred to the statement of the appellant, analysed the same and concluded that Charges No. 1, 2, 4 and 6 have been proved against him. It is thus evident that the inquiry report was not prepared in consonance with Rule 17(b)(i) of the Rules. 16. The Controller of Examinations went a step further and recorded a finding that the actions of the appellant had resulted in compromising the integrity of the Commission as a whole. The concerned officer did so despite the fact that the appellant had not been charged with the allegation that he had by his action/omission compromised with the integrity of the Commission and no evidence was produced to substantiate the same. The Appellate Authority, i.e., the Chairman recorded detailed reasons but the order passed by him also does not make reference to the evidence produced for proving the charges leveled against the appellant. 17. The learned Single Judge and the Division Bench of the High Court failed to notice the aforesaid fatal flaw in the orders passed by the Controller of Examinations and the Chairman and decided the matter by assuming that even though the Commission had not adduced any tangible evidence to prove the charges against the appellant, the same stood proved because of the weakness of his defence. 18. In Delhi Cloth and General Mills Company v. Ludh Budh Singh (1972) 1 SCC 595 , this Court held that it is the primary duty of the person making the allegations to establish the same by producing evidence and not for the delinquent to produce negative evidence to prove his innocence. 19. In Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570 , this Court considered the question whether mere production of the document by the department is sufficient for holding the employee guilty and observed: “Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.” 20. De hors the above conclusion, we are satisfied that the punishment of dismissal imposed on the appellant is legally unsustainable. The Controller of Examinations and the Chairman of the Commission did not consider the impact of the alleged unauthorized action of the appellant in nominating/deputing substitute Invigilators at the particular examination centre. One can appreciate the Commission’s concern about mixing of the question papers of afternoon examination with the question papers of morning examination, but in the absence of any evidence to show that ‘P’ Section of the Commission, where the appellant was posted, had anything to do with the question papers or that he had custody of the question papers, the Commission was not at all justified in holding him guilty of the incident which occurred at the examination centre. Indeed, it is nobody’s case that the appellant was, in any way, responsible for mixing of the question papers. Therefore, the findings recorded by the Inquiry Officer and the two Authorities that the appellant was guilty of serious misconduct cannot be sustained.21. The learned Single Judge and the Division Bench failed to take cognizance of the fact that the branch in which the appellant was working was not concerned with custody of the question papers and he is not shown to have handled the bundles of the question papers at the examination centre. Therefore, the gravity of the misconduct found proved against the appellant, viz., nomination/deputation of the Invigilators at the particular examination centre was not such which could influence any person of reasonable prudence to impose the extreme penalty of dismissal from service.22. In view of the above discussion, we may have remitted the case to the Commission for reconsideration of the entire matter but, keeping in view the fact that the appellant has already retired from service and he had put in unblemished service of 17 years, we do not consider it proper to adopt that course.
### Response:
1
### Explanation:
20. De hors the above conclusion, we are satisfied that the punishment of dismissal imposed on the appellant is legally unsustainable. The Controller of Examinations and the Chairman of the Commission did not consider the impact of the alleged unauthorized action of the appellant in nominating/deputing substitute Invigilators at the particular examination centre. One can appreciate theconcern about mixing of the question papers of afternoon examination with the question papers of morning examination, but in the absence of any evidence to show thatSection of the Commission, where the appellant was posted, had anything to do with the question papers or that he had custody of the question papers, the Commission was not at all justified in holding him guilty of the incident which occurred at the examination centre. Indeed, it iscase that the appellant was, in any way, responsible for mixing of the question papers. Therefore, the findings recorded by the Inquiry Officer and the two Authorities that the appellant was guilty of serious misconduct cannot be sustained.21. The learned Single Judge and the Division Bench failed to take cognizance of the fact that the branch in which the appellant was working was not concerned with custody of the question papers and he is not shown to have handled the bundles of the question papers at the examination centre. Therefore, the gravity of the misconduct found proved against the appellant, viz., nomination/deputation of the Invigilators at the particular examination centre was not such which could influence any person of reasonable prudence to impose the extreme penalty of dismissal from service.22. In view of the above discussion, we may have remitted the case to the Commission for reconsideration of the entire matter but, keeping in view the fact that the appellant has already retired from service and he had put in unblemished service of 17 years, we do not consider it proper to adopt that course.
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NATIONAL ALUMINIUM COMPANY LTD Vs. SUBHASH INFRA ENGINEERS PVT. LTD AND ANR | Thousand Four Hundred and Forty Only). The respondent/SIE was directed to deposit the said amount otherwise the appellant will be forced to invoke Arbitration Clause as per Clause 22 of NIT and Clause 87 of the General Conditions of Contract. Then, the first respondent/SIE has disputed the claim made by the appellant, on the ground that there is no binding contract, that came into existence between the parties, as such, the demand is illegal and unjustified. A letter dated 28.02.2015 was communicated to that effect, to the appellant. 5. Further, when the appellant-company asked the respondent/SIE to select an arbitrator from a panel of three names sent by it, the respondent/SIE, vide letter dated 23.07.2015, informed the appellant that, as much as, there is no binding contract that came into existence between the parties, the disputes cannot be resolved by the arbitrator. 6. The appellant herein, having regard to terms and conditions of contract, invoked the arbitration clause, by proceeding dated 02.09.2015 and appointed the second respondent Shri C.R. Pradhan, who was the Former Chairman(CMD) of the Company, as an arbitrator. The learned arbitrator initiated the proceeding by issuing notice dated 07.09.2015, asking the appellant, as well as the first respondent to attend the preliminary meeting on 09.10.2015 at Bhubaneswar. 7. On receipt of such notice issued by the arbitrator, the first respondent herein approached the Civil Court and filed Civil Suit No.2610 of 2015 on the file of Senior Civil Judge, Gurgaon, seeking relief of declaration that the appointment of second respondent, as a sole arbitrator, is null and void. Further, relief of permanent injunction was also sought restraining the arbitrator, from proceeding with arbitration proceedings. Pending suit, interim injunction sought for is rejected by the Learned Trial Judge i.e Senior Civil Judge, Gurgaon. 8. Against the order of the Trial Court, refusing to grant injunction orders, the first respondent approached the District Court. The Appellate Court i.e the Additional District Judge, Gurgaon, vide order dated 25.01.2016, allowed the appeal and granted the injunction, restraining the second respondent-arbitrator from proceeding further, pursuant to notice dated 07.09.2015. When the appellant herein has questioned such order by way of Civil Revision No. 2471 of 2016, before the High Court of Punjab and Haryana at Chandigarh, the same is dismissed vide order dated 22.10.2016. Hence this appeal by way of Special Leave. 9. We have heard the Sri Ashok K. Gupta, learned senior counsel appearing for the appellant and Sri Manoj Swarup, learned counsel for the first respondent, though the second respondent is served, there is no appearance on his behalf. We have perused the impugned order and other material placed on record. 10. It is the case of the appellant, that as much as the appellant has accepted offer/tender submitted by respondent, it is a concluded contract and is an arbitration agreement within the meaning of Section 7 of the Arbitration and Conciliation Act, 1996 (for short, the Act). On the other hand, it is the case of the respondent, as acceptance was not unconditional, it does not amount to a binding contract between the appellant and the first respondent, as such, the arbitrator has no jurisdiction to decide the lis between the parties. Mainly, it was a case of the appellant that as much as the acceptance of the bid will conclude the contract and having regard to terms and conditions of NIT and General Conditions of Contract, it is a binding contract between the parties, as such, dispute is to be resolved only by way of arbitration. 11. The learned counsel for the appellant has placed reliance on judgment in the case of Kvaerner Cementation India Limited V. Bajranglal Agarwal and Another 2012(5) SCC, 214. 12. It is a case of the appellant-Company that even if the first respondent disputes the jurisdiction of the arbitrator, it is open for the first respondent to move an application before the arbitrator under Section 16 of the Act, but at the same time, the suit filed by the first respondent, for declaration and injunction is not maintainable. 13. In the Judgment of this Court, in the case of Kvaerner Cementation India Limited V. Bajranglal Agarwal and Another 1 , this Court has examined the similar issue and held that any objection with respect to existence or validity of the arbitration agreement, can be raised only by way of an application under Section 16 of the Act and Civil Court cannot have jurisdiction to go into such question. 14. Having regard to aforesaid judgment of this Court and various communications between the parties, we are in agreement with the submission made by the learned senior counsel for the appellant that, if the first respondent wants to raise an objection with regard to existence or validity of the arbitration agreement, it is open for the first respondent to move an application before the arbitrator, but with such plea, he cannot maintain a suit for declaration and injunction. Though the Trial Court rightly rejected the interim injunction sought for by the first respondent, the same is erroneously reversed by the learned Additional District Judge and such order is confirmed by the High Court, by the impugned order. 15. As we are of the view that the order passed by the Additional District Judge and the High Court are not in conformity with the law on the subject and are contrary to judgment of this Court as referred above, the impugned order is liable to be set aside by vacating the injunction orders. 16. At the same time, it is to be noted that when the first respondent has not responded to select one of the members as an arbitrator, from the panel, the appellant has appointed Sri C.R. Pradhan, former Chairman-cum- Managing Director of the company itself as an arbitrator, who has commenced arbitration proceedings. Having regard to the Fifth Schedule introduced, by Act 3 of 2016 to the Act, second respondent cannot be continued as an arbitrator, to adjudicate the lis between the parties. | 1[ds]14. Having regard to aforesaid judgment of this Court and various communications between the parties, we are in agreement with the submission made by the learned senior counsel for the appellant that, if the first respondent wants to raise an objection with regard to existence or validity of the arbitration agreement, it is open for the first respondent to move an application before the arbitrator, but with such plea, he cannot maintain a suit for declaration and injunction. Though the Trial Court rightly rejected the interim injunction sought for by the first respondent, the same is erroneously reversed by the learned Additional District Judge and such order is confirmed by the High Court, by the impugned order15. As we are of the view that the order passed by the Additional District Judge and the High Court are not in conformity with the law on the subject and are contrary to judgment of this Court as referred above, the impugned order is liable to be set aside by vacating the injunction orders16. At the same time, it is to be noted that when the first respondent has not responded to select one of the members as an arbitrator, from the panel, the appellant has appointed Sri C.R. Pradhan, former Chairman-cum- Managing Director of the company itself as an arbitrator, who has commenced arbitration proceedings. Having regard to the Fifth Schedule introduced, by Act 3 of 2016 to the Act, second respondent cannot be continued as an arbitrator, to adjudicate the lis between the parties. | 1 | 1,529 | 282 | ### 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:
Thousand Four Hundred and Forty Only). The respondent/SIE was directed to deposit the said amount otherwise the appellant will be forced to invoke Arbitration Clause as per Clause 22 of NIT and Clause 87 of the General Conditions of Contract. Then, the first respondent/SIE has disputed the claim made by the appellant, on the ground that there is no binding contract, that came into existence between the parties, as such, the demand is illegal and unjustified. A letter dated 28.02.2015 was communicated to that effect, to the appellant. 5. Further, when the appellant-company asked the respondent/SIE to select an arbitrator from a panel of three names sent by it, the respondent/SIE, vide letter dated 23.07.2015, informed the appellant that, as much as, there is no binding contract that came into existence between the parties, the disputes cannot be resolved by the arbitrator. 6. The appellant herein, having regard to terms and conditions of contract, invoked the arbitration clause, by proceeding dated 02.09.2015 and appointed the second respondent Shri C.R. Pradhan, who was the Former Chairman(CMD) of the Company, as an arbitrator. The learned arbitrator initiated the proceeding by issuing notice dated 07.09.2015, asking the appellant, as well as the first respondent to attend the preliminary meeting on 09.10.2015 at Bhubaneswar. 7. On receipt of such notice issued by the arbitrator, the first respondent herein approached the Civil Court and filed Civil Suit No.2610 of 2015 on the file of Senior Civil Judge, Gurgaon, seeking relief of declaration that the appointment of second respondent, as a sole arbitrator, is null and void. Further, relief of permanent injunction was also sought restraining the arbitrator, from proceeding with arbitration proceedings. Pending suit, interim injunction sought for is rejected by the Learned Trial Judge i.e Senior Civil Judge, Gurgaon. 8. Against the order of the Trial Court, refusing to grant injunction orders, the first respondent approached the District Court. The Appellate Court i.e the Additional District Judge, Gurgaon, vide order dated 25.01.2016, allowed the appeal and granted the injunction, restraining the second respondent-arbitrator from proceeding further, pursuant to notice dated 07.09.2015. When the appellant herein has questioned such order by way of Civil Revision No. 2471 of 2016, before the High Court of Punjab and Haryana at Chandigarh, the same is dismissed vide order dated 22.10.2016. Hence this appeal by way of Special Leave. 9. We have heard the Sri Ashok K. Gupta, learned senior counsel appearing for the appellant and Sri Manoj Swarup, learned counsel for the first respondent, though the second respondent is served, there is no appearance on his behalf. We have perused the impugned order and other material placed on record. 10. It is the case of the appellant, that as much as the appellant has accepted offer/tender submitted by respondent, it is a concluded contract and is an arbitration agreement within the meaning of Section 7 of the Arbitration and Conciliation Act, 1996 (for short, the Act). On the other hand, it is the case of the respondent, as acceptance was not unconditional, it does not amount to a binding contract between the appellant and the first respondent, as such, the arbitrator has no jurisdiction to decide the lis between the parties. Mainly, it was a case of the appellant that as much as the acceptance of the bid will conclude the contract and having regard to terms and conditions of NIT and General Conditions of Contract, it is a binding contract between the parties, as such, dispute is to be resolved only by way of arbitration. 11. The learned counsel for the appellant has placed reliance on judgment in the case of Kvaerner Cementation India Limited V. Bajranglal Agarwal and Another 2012(5) SCC, 214. 12. It is a case of the appellant-Company that even if the first respondent disputes the jurisdiction of the arbitrator, it is open for the first respondent to move an application before the arbitrator under Section 16 of the Act, but at the same time, the suit filed by the first respondent, for declaration and injunction is not maintainable. 13. In the Judgment of this Court, in the case of Kvaerner Cementation India Limited V. Bajranglal Agarwal and Another 1 , this Court has examined the similar issue and held that any objection with respect to existence or validity of the arbitration agreement, can be raised only by way of an application under Section 16 of the Act and Civil Court cannot have jurisdiction to go into such question. 14. Having regard to aforesaid judgment of this Court and various communications between the parties, we are in agreement with the submission made by the learned senior counsel for the appellant that, if the first respondent wants to raise an objection with regard to existence or validity of the arbitration agreement, it is open for the first respondent to move an application before the arbitrator, but with such plea, he cannot maintain a suit for declaration and injunction. Though the Trial Court rightly rejected the interim injunction sought for by the first respondent, the same is erroneously reversed by the learned Additional District Judge and such order is confirmed by the High Court, by the impugned order. 15. As we are of the view that the order passed by the Additional District Judge and the High Court are not in conformity with the law on the subject and are contrary to judgment of this Court as referred above, the impugned order is liable to be set aside by vacating the injunction orders. 16. At the same time, it is to be noted that when the first respondent has not responded to select one of the members as an arbitrator, from the panel, the appellant has appointed Sri C.R. Pradhan, former Chairman-cum- Managing Director of the company itself as an arbitrator, who has commenced arbitration proceedings. Having regard to the Fifth Schedule introduced, by Act 3 of 2016 to the Act, second respondent cannot be continued as an arbitrator, to adjudicate the lis between the parties.
### Response:
1
### Explanation:
14. Having regard to aforesaid judgment of this Court and various communications between the parties, we are in agreement with the submission made by the learned senior counsel for the appellant that, if the first respondent wants to raise an objection with regard to existence or validity of the arbitration agreement, it is open for the first respondent to move an application before the arbitrator, but with such plea, he cannot maintain a suit for declaration and injunction. Though the Trial Court rightly rejected the interim injunction sought for by the first respondent, the same is erroneously reversed by the learned Additional District Judge and such order is confirmed by the High Court, by the impugned order15. As we are of the view that the order passed by the Additional District Judge and the High Court are not in conformity with the law on the subject and are contrary to judgment of this Court as referred above, the impugned order is liable to be set aside by vacating the injunction orders16. At the same time, it is to be noted that when the first respondent has not responded to select one of the members as an arbitrator, from the panel, the appellant has appointed Sri C.R. Pradhan, former Chairman-cum- Managing Director of the company itself as an arbitrator, who has commenced arbitration proceedings. Having regard to the Fifth Schedule introduced, by Act 3 of 2016 to the Act, second respondent cannot be continued as an arbitrator, to adjudicate the lis between the parties.
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M. K. Ranganathan And Another Vs. Government Of Madras And Others | such sale could be effected by him after the amendment and that was certainly a fundamental alteration in the law which could not be effected unless one found words used which pointed unmistakably to that conclusion or unless such intention was expressed with irresistible clearness.Having regard to the circumstances under which the amendment was inserted in S. 232(l) by Act 22 of 1936 and also having regard to the context we are not prepared to hold that the Legislature in inserting that amendment intended to effect a fundamental alteration in law with irresistible clearness. Such a great and sudden change of policy could not be attributed to the Legislature and it would be legitimate, therefore, to adopt the narrower interpretation of those words of the amendment rather than an interpretation which would have the contrary effect.(Vide the observations of the Privy Council in - Vasudeva Mudaliar v. Srinivasa Pillai, 30 Mad 426 at p. 433 (I) ).24. It may be observed in this connection that S. 171 enacts a general provision with regarded to suits or other legal proceedings to be proceeded with or commenced against the company after a winding up order has been made and lays down that no suit or other legal proceedings shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the court may impose.This general provision is supplemented by the supplemental provisions to be found respectively in Ss. 229 and 232(1) of the Act. Section 229. speaks of the application of insolvency rules in winding up of insolvent companies and S. 232 (I) Speaks of the avoidance of certain attachments, executions, etc., put into force without the leave of the Court against that estate or effects of the company and also of any sale held without the leave of the Court of any of the properties of the company after the commencement of the winding up.Section 229 recognises the position of the secured creditor generally as outside the winding up but enables him in the event of his desiring to take the benefit of the winding up proceedings to prove his debt, to value the same and share in the distribution pro rata of the assets of the company just in the same way as he would be able to do in the case of insolvency under the Presidency Towns Insolvency Act or the Provincial Insolvency Act.Section 232(1) also has reference to legal proceedings in much the same way as legal proceedings envisaged by S. 171 of the Act and the attachment, distress or execution put in force or the sale held are all of them legal proceedings which can only be resorted to through the intervention of the Court. The word "held" in connection with the sales contemplated within the terms of the amended section also lands support to this conclusion and this conclusion is further fortified by the terms of S. 232(2) which says that nothing in this section applies to proceedings by the Government, thus in effect indicating that what are referred in S. 232 (1) are proceedings within the meaning of that term as used in S. 171 of the Act.25. The Federal Court also put a similar construction on the provisions of S. 171 read with S. 232 (I) of the Act in - Governor- General in Council v. Shiromani Sugar Mills Ltd., AIR 1946 FC l6 at pp. 20-21 (J);"Section 171 must, in our judgment, be construed with reference to other sections of the Act and the general scheme of administration of the assets of a company in liquidation laid down by the Act. In particular, we would refer to S. 232. Section 232 appears to us to be supplementary to S. 171 by providing that any creditor (other than Government) who goes ahead, notwithstanding a winding-up order or in ignorance of it, with any attachment, distress, execution or sale, without the previous leave of the Court, will find that such steps are void.The reference to "distress" indicates that leave of the Court is required for more than the initiation of original proceedings in the nature of a suit in an ordinary Court of law. Moreover, the scheme of the application of the companys property in the pari passu satisfaction of its liabilities, envisaged in S. 211 and other Sections of the Act, cannot be made to work in co-ordination, unless all creditors (except such secured creditors as are "outside the winding -up" in the sense indicated by Lord Wrenbury in his speed in 1923 AC 647 (A) at p. 671) are subjected as to their actions against the property of the company to the control of the CourtAccordingly, in our judgment, no narrow construction should be placed upon the word "or other legal proceeding" in S. 171. In our judgment, the words can and should be held to cover distress and execution proceedings in the ordinary Courts. In our view, such proceedings are other legal proceedings against the company, as contrasted with ordinary suits against the company."We are, therefore, of the opinion that the sale effected by respondent 2 as the Receiver of the Trustees of the debenture-holders on 16-7-1954 was valid and binding on all parties concerned and could not be challenged as it was sought to be done by the Official Receiver. The position was rightly summed up by the High Court as under:"We thus reach the position that no leave of Court was needed before the Receiver appointed by the mortgagee debenture-holders exercised the power of sale and that as there is no allegation of want of bona fides or recklessness or fraud against the Receiver in exercising such a power, it would follow that the sale held by the Receiver is valid and effectual to convey title to the purchaser and that such a sale cannot be avoided on the ground either of want of due notice given by the Receiver before effecting the sale or on the ground of undervalue ." | 0[ds]16. The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as void under S. 232(1), Indian Companies Act.17. It was, however, urged that the addition of the words " or any sale held without leave of the Court of any of the properties" had changed the position of the secured creditor and even though the secured creditor realised the security without the intervention of the court such sale, if effected by him without the leave of the winding up Court , was void.The decision of the Allahabad High Court above referred to had held on a construction of S. 232(1) as it then stood, that an execution was not put in force merely when the property of the judgment-debtor was sold in pursuance thereof, but it was put in force when the property was attached and hence where the property of an insolvent company was attached prior to the date of the commencement of the winding up but was actually sold subsequent to such date, the sale was not void and could be upheld.Even apart from this intendment there are certain canons of construction which also tend to support the same conclusion.Prior to the amendment the law was well-settled both in England and in India that the secured creditor was outside the winding up and he could realise his security without the intervention of the Court by effecting a sale of the mortaged premises by private treaty or by public auction.It is a well-recognised rule of construction that "when two or more words which are susceptible of analogous meaning are coupled together noscuntur a sociis. They are understood to be used in their cognate sense. They take, as it were, their colour from each other, that is, the more general is restricted to a sense analogous to the lessregard to the circumstances under which the amendment was inserted in S. 232(l) by Act 22 of 1936 and also having regard to the context we are not prepared to hold that the Legislature in inserting that amendment intended to effect a fundamental alteration in law with irresistible clearness. Such a great and sudden change of policy could not be attributed to the Legislature and it would be legitimate, therefore, to adopt the narrower interpretation of those words of the amendment rather than an interpretation which would have the contrary effect.It may be observed in this connection that S. 171 enacts a general provision with regarded to suits or other legal proceedings to be proceeded with or commenced against the company after a winding up order has been made and lays down that no suit or other legal proceedings shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the court may impose.This general provision is supplemented by the supplemental provisions to be found respectively in Ss. 229 and 232(1) of the Act. Section 229. speaks of the application of insolvency rules in winding up of insolvent companies and S. 232 (I) Speaks of the avoidance of certain attachments, executions, etc., put into force without the leave of the Court against that estate or effects of the company and also of any sale held without the leave of the Court of any of the properties of the company after the commencement of the windingin our judgment, no narrow construction should be placed upon the word "or other legal proceeding" in S. 171. In our judgment, the words can and should be held to cover distress and execution proceedings in the ordinary Courts. In our view, such proceedings are other legal proceedings against the company, as contrasted with ordinary suits against theare, therefore, of the opinion that the sale effected by respondent 2 as the Receiver of the Trustees of the debenture-holders on 16-7-1954 was valid and binding on all parties concerned and could not be challenged as it was sought to be done by the Official Receiver. | 0 | 5,812 | 773 | ### 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:
such sale could be effected by him after the amendment and that was certainly a fundamental alteration in the law which could not be effected unless one found words used which pointed unmistakably to that conclusion or unless such intention was expressed with irresistible clearness.Having regard to the circumstances under which the amendment was inserted in S. 232(l) by Act 22 of 1936 and also having regard to the context we are not prepared to hold that the Legislature in inserting that amendment intended to effect a fundamental alteration in law with irresistible clearness. Such a great and sudden change of policy could not be attributed to the Legislature and it would be legitimate, therefore, to adopt the narrower interpretation of those words of the amendment rather than an interpretation which would have the contrary effect.(Vide the observations of the Privy Council in - Vasudeva Mudaliar v. Srinivasa Pillai, 30 Mad 426 at p. 433 (I) ).24. It may be observed in this connection that S. 171 enacts a general provision with regarded to suits or other legal proceedings to be proceeded with or commenced against the company after a winding up order has been made and lays down that no suit or other legal proceedings shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the court may impose.This general provision is supplemented by the supplemental provisions to be found respectively in Ss. 229 and 232(1) of the Act. Section 229. speaks of the application of insolvency rules in winding up of insolvent companies and S. 232 (I) Speaks of the avoidance of certain attachments, executions, etc., put into force without the leave of the Court against that estate or effects of the company and also of any sale held without the leave of the Court of any of the properties of the company after the commencement of the winding up.Section 229 recognises the position of the secured creditor generally as outside the winding up but enables him in the event of his desiring to take the benefit of the winding up proceedings to prove his debt, to value the same and share in the distribution pro rata of the assets of the company just in the same way as he would be able to do in the case of insolvency under the Presidency Towns Insolvency Act or the Provincial Insolvency Act.Section 232(1) also has reference to legal proceedings in much the same way as legal proceedings envisaged by S. 171 of the Act and the attachment, distress or execution put in force or the sale held are all of them legal proceedings which can only be resorted to through the intervention of the Court. The word "held" in connection with the sales contemplated within the terms of the amended section also lands support to this conclusion and this conclusion is further fortified by the terms of S. 232(2) which says that nothing in this section applies to proceedings by the Government, thus in effect indicating that what are referred in S. 232 (1) are proceedings within the meaning of that term as used in S. 171 of the Act.25. The Federal Court also put a similar construction on the provisions of S. 171 read with S. 232 (I) of the Act in - Governor- General in Council v. Shiromani Sugar Mills Ltd., AIR 1946 FC l6 at pp. 20-21 (J);"Section 171 must, in our judgment, be construed with reference to other sections of the Act and the general scheme of administration of the assets of a company in liquidation laid down by the Act. In particular, we would refer to S. 232. Section 232 appears to us to be supplementary to S. 171 by providing that any creditor (other than Government) who goes ahead, notwithstanding a winding-up order or in ignorance of it, with any attachment, distress, execution or sale, without the previous leave of the Court, will find that such steps are void.The reference to "distress" indicates that leave of the Court is required for more than the initiation of original proceedings in the nature of a suit in an ordinary Court of law. Moreover, the scheme of the application of the companys property in the pari passu satisfaction of its liabilities, envisaged in S. 211 and other Sections of the Act, cannot be made to work in co-ordination, unless all creditors (except such secured creditors as are "outside the winding -up" in the sense indicated by Lord Wrenbury in his speed in 1923 AC 647 (A) at p. 671) are subjected as to their actions against the property of the company to the control of the CourtAccordingly, in our judgment, no narrow construction should be placed upon the word "or other legal proceeding" in S. 171. In our judgment, the words can and should be held to cover distress and execution proceedings in the ordinary Courts. In our view, such proceedings are other legal proceedings against the company, as contrasted with ordinary suits against the company."We are, therefore, of the opinion that the sale effected by respondent 2 as the Receiver of the Trustees of the debenture-holders on 16-7-1954 was valid and binding on all parties concerned and could not be challenged as it was sought to be done by the Official Receiver. The position was rightly summed up by the High Court as under:"We thus reach the position that no leave of Court was needed before the Receiver appointed by the mortgagee debenture-holders exercised the power of sale and that as there is no allegation of want of bona fides or recklessness or fraud against the Receiver in exercising such a power, it would follow that the sale held by the Receiver is valid and effectual to convey title to the purchaser and that such a sale cannot be avoided on the ground either of want of due notice given by the Receiver before effecting the sale or on the ground of undervalue ."
### Response:
0
### Explanation:
16. The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as void under S. 232(1), Indian Companies Act.17. It was, however, urged that the addition of the words " or any sale held without leave of the Court of any of the properties" had changed the position of the secured creditor and even though the secured creditor realised the security without the intervention of the court such sale, if effected by him without the leave of the winding up Court , was void.The decision of the Allahabad High Court above referred to had held on a construction of S. 232(1) as it then stood, that an execution was not put in force merely when the property of the judgment-debtor was sold in pursuance thereof, but it was put in force when the property was attached and hence where the property of an insolvent company was attached prior to the date of the commencement of the winding up but was actually sold subsequent to such date, the sale was not void and could be upheld.Even apart from this intendment there are certain canons of construction which also tend to support the same conclusion.Prior to the amendment the law was well-settled both in England and in India that the secured creditor was outside the winding up and he could realise his security without the intervention of the Court by effecting a sale of the mortaged premises by private treaty or by public auction.It is a well-recognised rule of construction that "when two or more words which are susceptible of analogous meaning are coupled together noscuntur a sociis. They are understood to be used in their cognate sense. They take, as it were, their colour from each other, that is, the more general is restricted to a sense analogous to the lessregard to the circumstances under which the amendment was inserted in S. 232(l) by Act 22 of 1936 and also having regard to the context we are not prepared to hold that the Legislature in inserting that amendment intended to effect a fundamental alteration in law with irresistible clearness. Such a great and sudden change of policy could not be attributed to the Legislature and it would be legitimate, therefore, to adopt the narrower interpretation of those words of the amendment rather than an interpretation which would have the contrary effect.It may be observed in this connection that S. 171 enacts a general provision with regarded to suits or other legal proceedings to be proceeded with or commenced against the company after a winding up order has been made and lays down that no suit or other legal proceedings shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the court may impose.This general provision is supplemented by the supplemental provisions to be found respectively in Ss. 229 and 232(1) of the Act. Section 229. speaks of the application of insolvency rules in winding up of insolvent companies and S. 232 (I) Speaks of the avoidance of certain attachments, executions, etc., put into force without the leave of the Court against that estate or effects of the company and also of any sale held without the leave of the Court of any of the properties of the company after the commencement of the windingin our judgment, no narrow construction should be placed upon the word "or other legal proceeding" in S. 171. In our judgment, the words can and should be held to cover distress and execution proceedings in the ordinary Courts. In our view, such proceedings are other legal proceedings against the company, as contrasted with ordinary suits against theare, therefore, of the opinion that the sale effected by respondent 2 as the Receiver of the Trustees of the debenture-holders on 16-7-1954 was valid and binding on all parties concerned and could not be challenged as it was sought to be done by the Official Receiver.
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Sheo Lal And Ors Vs. Sultan & Ors | and before a suit for redemption is barred, present a petition to the Collector applying for an order directing that his mortgage be redeemed, and where the mortgage is with possession that he be put in possession of the mortgage property.* * *Sections 5, 6 and 7 deal with the procedure to be followed in the trial of applications under the Act.Section 8 provides:"where both parties appear when the petition is called on for hearing, the Collector shall enquire from the mortgagee whether he admits that the petitioner is entitled to redeem, whether he is willing to accept the sum in deposit in full discharge of the mortgage debt, and where the mortgage is with possession whether he is willing to surrender possession of the mortgaged property.If the mortgagee replies In the affirmative, the Collector shall make an order as laid down in Section 6 (a), (b), (c) and (d) of this Act.* * * *"Section 9 on which reliance is primarily placed provides:"If the mortgagee raises objection on any ground other than the amount of the deposit, or if the petitioner is not willing to pay the sum demanded by the mortgagee, the Collector may either (a) for reasons to be recorded dismiss the petition, or (b) make a summary enquiry regarding the objection raised by the mortgagee or regarding the sum due."Section 10 provides for enquiry into objections raised by the mortgagee and Sec. 11 provides for enquiry regarding the sum due under the mortgage and further provides for making deposit by the mortgagor within the period to be fixed by the Collector. Section 12 provides by the first paragraph:"Any party aggrieved by an order made under Sections 6, 7, 8, 9, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be conclusive."Article 14 Schedule I of the Limitation Act, 1908, provides that a suit to set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for, shall be filed within one year of the date of the act or order.6. We are unable to agree with the appellants contention that since no suit was filed within one year of the date on which the application of the plaintiffs was rejected by the Assistant Collector, the order dismissing the application was conclusive, and the suit for redemption by the plaintiffs was not maintainable. Section 9 (1) (a) of the Act authorises the Collector to dismiss the petition for reasons to be recorded, where the mortgagee raises objection on a ground other than the amount of deposit or if the mortgagor is not willing to pay the sum demanded by the mortgagee. There is no evidence that the mortgagor declined to pay the sum demanded by the mortgagee. Again the Assistant Collector did not pass an order dismissing the petition for any reasons recorded by him. He merely ordered that the case raised complicated questions of fact and law which could not be tried in a summary proceeding.Such an order, in our judgment, does not fall within the terms of Sec. 9 of Act 2 of 1913. Even if by the order the petition was dismissed, not the form of the order, but its substance will determine the application of the period of limitation prescribed by Article 14 of the Limitation Act. An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for it raises no cloud on the title of the mortgagor arising out of the mortgage. Such an order is not one which is required to be set aside. An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside The order of the Assistant Collector merely declared the rights of the plaintiff under the common law, it did not bar the claim to relief for redemption in a civil suit, and on that account it was not an order which was required to be set aside.7. In Tulsi Das v. Diala Ram, ILR (1944) Lah 1 = (AIR 1943 Lah 176) (FB), Tek Chand, J., delivering the principal judgment-of the Court dealt with the question which falls to be determined in this case, The learned Judge observed :"..........the suit referred to in Sec. is to establish the "erroneous nature of the order". Now what is the error committed by the Collector in his order which the mortgagor must seek to have set right by a declaratory suit? No civil court can grant a declaration that the Collectors view that the matter was too difficult for summary redemption was wrong and compel him to proceed with the summary enquiry. The order of the Collector does not affect the rights of the parties in any way; it is conclusive to this extent only that the petition for summary redemption has been dismissed and no other petition under the Act would lie. No suit under Section 12 being necessary or competent, there was no bar to the mortgagor suing for redemption in the civil courts within the period allowed by law in ordinary course."The same view was expressed in a judgment of the Punjab High Court Dewan Chand v. Raghbir Singh, ILR (1966) 1 Punj 193 = (AIR 1965 Punj 502). The Court, in that case pointed out, in our judgment rightly, that Art. 14 of Sch. I to the Limitation Act does not apply to a suit which does not seek to set aside the order of an officer of the Government. When the Collector decides nothing against the mortgagor and directs that the matter be settled in a civil court, the Collectors decision does not stand in the way of the suit for redemption. | 0[ds]6. We are unable to agree with the appellants contention that since no suit was filed within one year of the date on which the application of the plaintiffs was rejected by the Assistant Collector, the order dismissing the application was conclusive, and the suit for redemption by the plaintiffs was not maintainable. Section 9 (1) (a) of the Act authorises the Collector to dismiss the petition for reasons to be recorded, where the mortgagee raises objection on a ground other than the amount of deposit or if the mortgagor is not willing to pay the sum demanded by the mortgagee. There is no evidence that the mortgagor declined to pay the sum demanded by the mortgagee. Again the Assistant Collector did not pass an order dismissing the petition for any reasons recorded by him. He merely ordered that the case raised complicated questions of fact and law which could not be tried in a summary proceeding.Such an order, in our judgment, does not fall within the terms of Sec. 9 of Act 2 of 1913. Even if by the order the petition was dismissed, not the form of the order, but its substance will determine the application of the period of limitation prescribed by Article 14 of the Limitation Act. An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for it raises no cloud on the title of the mortgagor arising out of the mortgage. Such an order is not one which is required to be set aside. An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside The order of the Assistant Collector merely declared the rights of the plaintiff under the common law, it did not bar the claim to relief for redemption in a civil suit, and on that account it was not an order which was required to be setwhat is the error committed by the Collector in his order which the mortgagor must seek to have set right by a declaratory suit? No civil court can grant a declaration that the Collectors view that the matter was too difficult for summary redemption was wrong and compel him to proceed with the summary enquiry. The order of the Collector does not affect the rights of the parties in any way; it is conclusive to this extent only that the petition for summary redemption has been dismissed and no other petition under the Act would lie. No suit under Section 12 being necessary or competent, there was no bar to the mortgagor suing for redemption in the civil courts within the period allowed by law in ordinaryCourt, in that case pointed out, in our judgment rightly, that Art. 14 of Sch. I to the Limitation Act does not apply to a suit which does not seek to set aside the order of an officer of the Government. When the Collector decides nothing against the mortgagor and directs that the matter be settled in a civil court, the Collectors decision does not stand in the way of the suit for redemption. | 0 | 1,780 | 587 | ### 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:
and before a suit for redemption is barred, present a petition to the Collector applying for an order directing that his mortgage be redeemed, and where the mortgage is with possession that he be put in possession of the mortgage property.* * *Sections 5, 6 and 7 deal with the procedure to be followed in the trial of applications under the Act.Section 8 provides:"where both parties appear when the petition is called on for hearing, the Collector shall enquire from the mortgagee whether he admits that the petitioner is entitled to redeem, whether he is willing to accept the sum in deposit in full discharge of the mortgage debt, and where the mortgage is with possession whether he is willing to surrender possession of the mortgaged property.If the mortgagee replies In the affirmative, the Collector shall make an order as laid down in Section 6 (a), (b), (c) and (d) of this Act.* * * *"Section 9 on which reliance is primarily placed provides:"If the mortgagee raises objection on any ground other than the amount of the deposit, or if the petitioner is not willing to pay the sum demanded by the mortgagee, the Collector may either (a) for reasons to be recorded dismiss the petition, or (b) make a summary enquiry regarding the objection raised by the mortgagee or regarding the sum due."Section 10 provides for enquiry into objections raised by the mortgagee and Sec. 11 provides for enquiry regarding the sum due under the mortgage and further provides for making deposit by the mortgagor within the period to be fixed by the Collector. Section 12 provides by the first paragraph:"Any party aggrieved by an order made under Sections 6, 7, 8, 9, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be conclusive."Article 14 Schedule I of the Limitation Act, 1908, provides that a suit to set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for, shall be filed within one year of the date of the act or order.6. We are unable to agree with the appellants contention that since no suit was filed within one year of the date on which the application of the plaintiffs was rejected by the Assistant Collector, the order dismissing the application was conclusive, and the suit for redemption by the plaintiffs was not maintainable. Section 9 (1) (a) of the Act authorises the Collector to dismiss the petition for reasons to be recorded, where the mortgagee raises objection on a ground other than the amount of deposit or if the mortgagor is not willing to pay the sum demanded by the mortgagee. There is no evidence that the mortgagor declined to pay the sum demanded by the mortgagee. Again the Assistant Collector did not pass an order dismissing the petition for any reasons recorded by him. He merely ordered that the case raised complicated questions of fact and law which could not be tried in a summary proceeding.Such an order, in our judgment, does not fall within the terms of Sec. 9 of Act 2 of 1913. Even if by the order the petition was dismissed, not the form of the order, but its substance will determine the application of the period of limitation prescribed by Article 14 of the Limitation Act. An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for it raises no cloud on the title of the mortgagor arising out of the mortgage. Such an order is not one which is required to be set aside. An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside The order of the Assistant Collector merely declared the rights of the plaintiff under the common law, it did not bar the claim to relief for redemption in a civil suit, and on that account it was not an order which was required to be set aside.7. In Tulsi Das v. Diala Ram, ILR (1944) Lah 1 = (AIR 1943 Lah 176) (FB), Tek Chand, J., delivering the principal judgment-of the Court dealt with the question which falls to be determined in this case, The learned Judge observed :"..........the suit referred to in Sec. is to establish the "erroneous nature of the order". Now what is the error committed by the Collector in his order which the mortgagor must seek to have set right by a declaratory suit? No civil court can grant a declaration that the Collectors view that the matter was too difficult for summary redemption was wrong and compel him to proceed with the summary enquiry. The order of the Collector does not affect the rights of the parties in any way; it is conclusive to this extent only that the petition for summary redemption has been dismissed and no other petition under the Act would lie. No suit under Section 12 being necessary or competent, there was no bar to the mortgagor suing for redemption in the civil courts within the period allowed by law in ordinary course."The same view was expressed in a judgment of the Punjab High Court Dewan Chand v. Raghbir Singh, ILR (1966) 1 Punj 193 = (AIR 1965 Punj 502). The Court, in that case pointed out, in our judgment rightly, that Art. 14 of Sch. I to the Limitation Act does not apply to a suit which does not seek to set aside the order of an officer of the Government. When the Collector decides nothing against the mortgagor and directs that the matter be settled in a civil court, the Collectors decision does not stand in the way of the suit for redemption.
### Response:
0
### Explanation:
6. We are unable to agree with the appellants contention that since no suit was filed within one year of the date on which the application of the plaintiffs was rejected by the Assistant Collector, the order dismissing the application was conclusive, and the suit for redemption by the plaintiffs was not maintainable. Section 9 (1) (a) of the Act authorises the Collector to dismiss the petition for reasons to be recorded, where the mortgagee raises objection on a ground other than the amount of deposit or if the mortgagor is not willing to pay the sum demanded by the mortgagee. There is no evidence that the mortgagor declined to pay the sum demanded by the mortgagee. Again the Assistant Collector did not pass an order dismissing the petition for any reasons recorded by him. He merely ordered that the case raised complicated questions of fact and law which could not be tried in a summary proceeding.Such an order, in our judgment, does not fall within the terms of Sec. 9 of Act 2 of 1913. Even if by the order the petition was dismissed, not the form of the order, but its substance will determine the application of the period of limitation prescribed by Article 14 of the Limitation Act. An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for it raises no cloud on the title of the mortgagor arising out of the mortgage. Such an order is not one which is required to be set aside. An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside The order of the Assistant Collector merely declared the rights of the plaintiff under the common law, it did not bar the claim to relief for redemption in a civil suit, and on that account it was not an order which was required to be setwhat is the error committed by the Collector in his order which the mortgagor must seek to have set right by a declaratory suit? No civil court can grant a declaration that the Collectors view that the matter was too difficult for summary redemption was wrong and compel him to proceed with the summary enquiry. The order of the Collector does not affect the rights of the parties in any way; it is conclusive to this extent only that the petition for summary redemption has been dismissed and no other petition under the Act would lie. No suit under Section 12 being necessary or competent, there was no bar to the mortgagor suing for redemption in the civil courts within the period allowed by law in ordinaryCourt, in that case pointed out, in our judgment rightly, that Art. 14 of Sch. I to the Limitation Act does not apply to a suit which does not seek to set aside the order of an officer of the Government. When the Collector decides nothing against the mortgagor and directs that the matter be settled in a civil court, the Collectors decision does not stand in the way of the suit for redemption.
|
Balbir Singh Negi Vs. U O I | may be problems only of book-keeping and accountancy and nothing of law in such proceedings. Therefore, it cannot be inferred straight away that because the sales tax practitioner has been given a right to appear before a statutory authority, he is practising the profession of law.9. There is also another aspect of the matter. The exact qualification of the appellant and the nature of his work has not been set out in the petition under Article 226 of the Constitution before the Nagpur Bench of the Bombay High Court. It was stated by Mr. Ganpule that the petitioner is a Matriculate. The Secretary, Bar Council of Maharashtra, by a letter dated 27th December, 1978 called upon the appellant to produce the application made by him to the Sales Tax Officer initially for registration as sales tax practitioner. The appellant was also asked to give particulars of any examination of accountancy which he may have passed. The appellant in reply in his letter dated 3rd January, 1979 stated:- "I have to state that I did not pass any accountancy examination since that was not necessary to qualify for a Sales Tax Practitioner under section 11-B(2) of the C.P. & Berar Sales Tax Act, 1947. Similarly, under that Act, there was neither any provision nor any requirement for formal enrolment or registration as Sales Tax Practitioner, but the then Commissioner of Sales Tax did not maintain a list of such Sales Tax Practitioners. Since I was such a Sales Tax Practitioner under that Act, I practised right upto 31st December, 1959, when that Act was repealed on 1.1.1960 but the Bombay Sales Tax Act 1960, and by virtue of the Savings Section 77(1) (c) of the Repealing Act, I was entitled to practise under the Bombay S.T. Act, 1960 and get myself enrolled as Sales Tax Practitioner under Section 71 read with Rule 66 (2) of that Act." 10. The question asked by the Secretary, Bar Council of Maharashtra, is also important for the purpose of this case. This sales tax practitioner is required to be conversant with accountancy principles and practice. He may not be a qualified chartered accountant or a cost accountant, but he must have some familiarity with accountancy practice. This is apparent from the requisite qualification of a sales tax practitioner under Rule 66 of the Bombay Sales Tax Rules:- "66. Qualifications of a Sales Tax practitioner:- (1) A Sales Tax Practitioner shall be eligible for having his name entered in the list of sales tax practitioners maintained under Section 71, if-(a) he has passed an accountancy examination, recognized by the Central Board of Revenue constituted under the Central Board of Revenue Act, 1924 (IV of 1924), for the purpose of clause (v) of sub-section (2) of Section 288 of the Income-tax Act, 1961 (43 of 1961), or(b) he has acquired such educational qualifications as are prescribed by the Central Board of Revenue constituted under the Central Board of Revenue Act, 1924 (IV of 1924), for the purpose of clause (vi) of sub- section (2) of Section 288 of the Incomes tax - Act, 1961 (43 of 1961), under Rule 51 of the Income-tax Rules 1961, and(c) (Deleted by G.N. of 4.12.1962).(d) he was formerly an employee of the Sales Tax Department, he is in the opinion of the Commissioner a fit and proper person to attend before any Sales Tax authority as a Sales Tax practitioner." 11. The requirements of Rule 66 go to show that sales tax practitioner, who has not got a degree in law or is not a qualified chartered or cost accountant, will have to acquire some knowledge of accountancy. Even Section 288 of the Income Tax Act and the Rules framed thereunder, lays down that an Authorised Representative who is not a legal practitioner entitled to practise in any civil court in India or a Chartered Accountant or a person qualified to be an auditor of a company may be allowed to appear before an Income Tax Authority, if he has passed any of the accountancy examinations recognised by the Central Board of Revenue or has acquired a degree in commerce from a recognised University. These rules go to show that apart from lawyers and chartered or cost accountants, other persons are allowed to practise in the Sales Tax Department as Sales Tax practitioners provided they have acquired some knowledge of accountancy. They will have to pass one of the many recognised accountancy courses for this purpose. This goes to show that the sales tax practitioner does not carry on the profession of law when he appears before a Sales Tax Officer. His practice is more in the nature of that of an accountant. Therefore, we are unable to uphold the contention that merely because the appellant was allowed to practise as a sales tax practitioner, he is entitled to be enrolled as an advocate by virtue of the provisions of clause (aa) of sub-section (3) of Section 24 of the Act.12. It may also be pointed out that the construction suggested by the appellant will lead to anomaly and must be avoided. After passing of the Advocates Act, only one class of persons is entitled to practise the profession of law, namely, advocates (Section 29). If the phrase `practice the profession of law is equated to appearance before the sales tax authority, in that event, a chartered accountant or a cost accountant or even a relative or an employee of an assessee will not be entitled to appear before a sales tax authority after the Advocates Act came into force. Not only that, if the contention of the appellant is accepted, after the appointed date the sales tax practitioner who does not have a degree in law will not be entitled to be enrolled as an advocate, will not be able to practise the profession of law and consequently will not be able appear before any Sales tax authority notwithstanding the provisions of Section 71 of the Bombay Sales Tax Act. | 0[ds]5. It clearly appears that a distinction has been drawn between a legal practitioner and a sales tax practitioner in Section 71. Both may appear before an authority in connection with sales tax cases. That will not turn a sales tax practitioner into a legal practitioner. Even a relative or an employee of an assessee may appear on his behalf before a sales tax authority. He does not require to have any special qualification for doing that. If an employee appears regularly for his employer in connection with sales tax cases of his employer before a sales tax authority, he cannot be treated to be a legal practitioner or entitled otherwise to practise the profession of law by virtue of Section 71 of the Bombay Sales Tax Act.6. The second category of persons, who are entitled to appear before sales tax authorities under clause (b) of Section 71, are professionally qualified persons. A legal practitioner or a chartered accountant or a cost accountant may appear before a sales tax authority on behalf of his client. Such appearance by a lawyer or an accountant will be in the course of carrying on his profession of law or accountancy, as the case may be. It cannot be said that an accountant carries on the profession of law when he appears before the sales tax authority, nor can it be said that a lawyer carries on the profession of an accountant when he appears before a sales tax authority.7. The third category, to which the appellant claims to belong, is the category of sales tax practitioners, who possess the prescribed qualifications. Assuming that the appellant, who is stated to be only a Matriculate, has acquired the prescribed qualifications and has been included in the list of persons qualified to appear before the sales tax authorities, he cannot be treated as a person entitled to practise either the profession of law or the profession of accountancy. A large number of persons have been permitted to appear before sales tax authorities on behalf of the dealers. The list includes an employee, relative, a sales tax practitioner and also professionally qualified people like lawyers and accountants. The right to appear before a sales tax authority is not confined to lawyers only. We are unable to uphold the contention that merely because the appellant has been permitted to appear before the sales tax authority he falls within the category of persons entitled to practise the profession of law by virtue of the provisions of the Bombay Sales Tax Act.8. Moreover, appearance before the sales tax authority may only be for the purpose of filing a return and producing documents in support of the return. A relative or an employee or an accountant or a sales tax practitioner can be asked to do this job by an assessee for and on his behalf. That does not mean that any one of the aforesaid persons is practising the profession of law when he appears before the statutory authority and produces the accounts. He may even be called upon to explain the accounts or justify the entries made in the accounts books. There may be problems only ofand accountancy and nothing of law in such proceedings. Therefore, it cannot be inferred straight away that because the sales tax practitioner has been given a right to appear before a statutory authority, he is practising the profession of law.9. There is also another aspect of the matter. The exact qualification of the appellant and the nature of his work has not been set out in the petition under Article 226 of the Constitution before the Nagpur Bench of the Bombay High Court. It was stated by Mr. Ganpule that the petitioner is a Matriculate. The Secretary, Bar Council of Maharashtra, by a letter dated 27th December, 1978 called upon the appellant to produce the application made by him to the Sales Tax Officer initially for registration as sales tax practitioner.The question asked by the Secretary, Bar Council of Maharashtra, is also important for the purpose of this case. This sales tax practitioner is required to be conversant with accountancy principles and practice. He may not be a qualified chartered accountant or a cost accountant, but he must have some familiarity with accountancy practice.The requirements of Rule 66 go to show that sales tax practitioner, who has not got a degree in law or is not a qualified chartered or cost accountant, will have to acquire some knowledge of accountancy. Even Section 288 of the Income Tax Act and the Rules framed thereunder, lays down that an Authorised Representative who is not a legal practitioner entitled to practise in any civil court in India or a Chartered Accountant or a person qualified to be an auditor of a company may be allowed to appear before an Income Tax Authority, if he has passed any of the accountancy examinations recognised by the Central Board of Revenue or has acquired a degree in commerce from a recognised University. These rules go to show that apart from lawyers and chartered or cost accountants, other persons are allowed to practise in the Sales Tax Department as Sales Tax practitioners provided they have acquired some knowledge of accountancy. They will have to pass one of the many recognised accountancy courses for this purpose. This goes to show that the sales tax practitioner does not carry on the profession of law when he appears before a Sales Tax Officer. His practice is more in the nature of that of an accountant. Therefore, we are unable to uphold the contention that merely because the appellant was allowed to practise as a sales tax practitioner, he is entitled to be enrolled as an advocate by virtue of the provisions of clause (aa) of(3) of Section 24 of the Act.12. It may also be pointed out that the construction suggested by the appellant will lead to anomaly and must be avoided. After passing of the Advocates Act, only one class of persons is entitled to practise the profession of law, namely, advocates (Section 29). If the phrase `practice the profession of law is equated to appearance before the sales tax authority, in that event, a chartered accountant or a cost accountant or even a relative or an employee of an assessee will not be entitled to appear before a sales tax authority after the Advocates Act came into force. Not only that, if the contention of the appellant is accepted, after the appointed date the sales tax practitioner who does not have a degree in law will not be entitled to be enrolled as an advocate, will not be able to practise the profession of law and consequently will not be able appear before any Sales tax authority notwithstanding the provisions of Section 71 of the Bombay Sales Tax Act. | 0 | 3,320 | 1,232 | ### 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:
may be problems only of book-keeping and accountancy and nothing of law in such proceedings. Therefore, it cannot be inferred straight away that because the sales tax practitioner has been given a right to appear before a statutory authority, he is practising the profession of law.9. There is also another aspect of the matter. The exact qualification of the appellant and the nature of his work has not been set out in the petition under Article 226 of the Constitution before the Nagpur Bench of the Bombay High Court. It was stated by Mr. Ganpule that the petitioner is a Matriculate. The Secretary, Bar Council of Maharashtra, by a letter dated 27th December, 1978 called upon the appellant to produce the application made by him to the Sales Tax Officer initially for registration as sales tax practitioner. The appellant was also asked to give particulars of any examination of accountancy which he may have passed. The appellant in reply in his letter dated 3rd January, 1979 stated:- "I have to state that I did not pass any accountancy examination since that was not necessary to qualify for a Sales Tax Practitioner under section 11-B(2) of the C.P. & Berar Sales Tax Act, 1947. Similarly, under that Act, there was neither any provision nor any requirement for formal enrolment or registration as Sales Tax Practitioner, but the then Commissioner of Sales Tax did not maintain a list of such Sales Tax Practitioners. Since I was such a Sales Tax Practitioner under that Act, I practised right upto 31st December, 1959, when that Act was repealed on 1.1.1960 but the Bombay Sales Tax Act 1960, and by virtue of the Savings Section 77(1) (c) of the Repealing Act, I was entitled to practise under the Bombay S.T. Act, 1960 and get myself enrolled as Sales Tax Practitioner under Section 71 read with Rule 66 (2) of that Act." 10. The question asked by the Secretary, Bar Council of Maharashtra, is also important for the purpose of this case. This sales tax practitioner is required to be conversant with accountancy principles and practice. He may not be a qualified chartered accountant or a cost accountant, but he must have some familiarity with accountancy practice. This is apparent from the requisite qualification of a sales tax practitioner under Rule 66 of the Bombay Sales Tax Rules:- "66. Qualifications of a Sales Tax practitioner:- (1) A Sales Tax Practitioner shall be eligible for having his name entered in the list of sales tax practitioners maintained under Section 71, if-(a) he has passed an accountancy examination, recognized by the Central Board of Revenue constituted under the Central Board of Revenue Act, 1924 (IV of 1924), for the purpose of clause (v) of sub-section (2) of Section 288 of the Income-tax Act, 1961 (43 of 1961), or(b) he has acquired such educational qualifications as are prescribed by the Central Board of Revenue constituted under the Central Board of Revenue Act, 1924 (IV of 1924), for the purpose of clause (vi) of sub- section (2) of Section 288 of the Incomes tax - Act, 1961 (43 of 1961), under Rule 51 of the Income-tax Rules 1961, and(c) (Deleted by G.N. of 4.12.1962).(d) he was formerly an employee of the Sales Tax Department, he is in the opinion of the Commissioner a fit and proper person to attend before any Sales Tax authority as a Sales Tax practitioner." 11. The requirements of Rule 66 go to show that sales tax practitioner, who has not got a degree in law or is not a qualified chartered or cost accountant, will have to acquire some knowledge of accountancy. Even Section 288 of the Income Tax Act and the Rules framed thereunder, lays down that an Authorised Representative who is not a legal practitioner entitled to practise in any civil court in India or a Chartered Accountant or a person qualified to be an auditor of a company may be allowed to appear before an Income Tax Authority, if he has passed any of the accountancy examinations recognised by the Central Board of Revenue or has acquired a degree in commerce from a recognised University. These rules go to show that apart from lawyers and chartered or cost accountants, other persons are allowed to practise in the Sales Tax Department as Sales Tax practitioners provided they have acquired some knowledge of accountancy. They will have to pass one of the many recognised accountancy courses for this purpose. This goes to show that the sales tax practitioner does not carry on the profession of law when he appears before a Sales Tax Officer. His practice is more in the nature of that of an accountant. Therefore, we are unable to uphold the contention that merely because the appellant was allowed to practise as a sales tax practitioner, he is entitled to be enrolled as an advocate by virtue of the provisions of clause (aa) of sub-section (3) of Section 24 of the Act.12. It may also be pointed out that the construction suggested by the appellant will lead to anomaly and must be avoided. After passing of the Advocates Act, only one class of persons is entitled to practise the profession of law, namely, advocates (Section 29). If the phrase `practice the profession of law is equated to appearance before the sales tax authority, in that event, a chartered accountant or a cost accountant or even a relative or an employee of an assessee will not be entitled to appear before a sales tax authority after the Advocates Act came into force. Not only that, if the contention of the appellant is accepted, after the appointed date the sales tax practitioner who does not have a degree in law will not be entitled to be enrolled as an advocate, will not be able to practise the profession of law and consequently will not be able appear before any Sales tax authority notwithstanding the provisions of Section 71 of the Bombay Sales Tax Act.
### Response:
0
### Explanation:
before sales tax authorities under clause (b) of Section 71, are professionally qualified persons. A legal practitioner or a chartered accountant or a cost accountant may appear before a sales tax authority on behalf of his client. Such appearance by a lawyer or an accountant will be in the course of carrying on his profession of law or accountancy, as the case may be. It cannot be said that an accountant carries on the profession of law when he appears before the sales tax authority, nor can it be said that a lawyer carries on the profession of an accountant when he appears before a sales tax authority.7. The third category, to which the appellant claims to belong, is the category of sales tax practitioners, who possess the prescribed qualifications. Assuming that the appellant, who is stated to be only a Matriculate, has acquired the prescribed qualifications and has been included in the list of persons qualified to appear before the sales tax authorities, he cannot be treated as a person entitled to practise either the profession of law or the profession of accountancy. A large number of persons have been permitted to appear before sales tax authorities on behalf of the dealers. The list includes an employee, relative, a sales tax practitioner and also professionally qualified people like lawyers and accountants. The right to appear before a sales tax authority is not confined to lawyers only. We are unable to uphold the contention that merely because the appellant has been permitted to appear before the sales tax authority he falls within the category of persons entitled to practise the profession of law by virtue of the provisions of the Bombay Sales Tax Act.8. Moreover, appearance before the sales tax authority may only be for the purpose of filing a return and producing documents in support of the return. A relative or an employee or an accountant or a sales tax practitioner can be asked to do this job by an assessee for and on his behalf. That does not mean that any one of the aforesaid persons is practising the profession of law when he appears before the statutory authority and produces the accounts. He may even be called upon to explain the accounts or justify the entries made in the accounts books. There may be problems only ofand accountancy and nothing of law in such proceedings. Therefore, it cannot be inferred straight away that because the sales tax practitioner has been given a right to appear before a statutory authority, he is practising the profession of law.9. There is also another aspect of the matter. The exact qualification of the appellant and the nature of his work has not been set out in the petition under Article 226 of the Constitution before the Nagpur Bench of the Bombay High Court. It was stated by Mr. Ganpule that the petitioner is a Matriculate. The Secretary, Bar Council of Maharashtra, by a letter dated 27th December, 1978 called upon the appellant to produce the application made by him to the Sales Tax Officer initially for registration as sales tax practitioner.The question asked by the Secretary, Bar Council of Maharashtra, is also important for the purpose of this case. This sales tax practitioner is required to be conversant with accountancy principles and practice. He may not be a qualified chartered accountant or a cost accountant, but he must have some familiarity with accountancy practice.The requirements of Rule 66 go to show that sales tax practitioner, who has not got a degree in law or is not a qualified chartered or cost accountant, will have to acquire some knowledge of accountancy. Even Section 288 of the Income Tax Act and the Rules framed thereunder, lays down that an Authorised Representative who is not a legal practitioner entitled to practise in any civil court in India or a Chartered Accountant or a person qualified to be an auditor of a company may be allowed to appear before an Income Tax Authority, if he has passed any of the accountancy examinations recognised by the Central Board of Revenue or has acquired a degree in commerce from a recognised University. These rules go to show that apart from lawyers and chartered or cost accountants, other persons are allowed to practise in the Sales Tax Department as Sales Tax practitioners provided they have acquired some knowledge of accountancy. They will have to pass one of the many recognised accountancy courses for this purpose. This goes to show that the sales tax practitioner does not carry on the profession of law when he appears before a Sales Tax Officer. His practice is more in the nature of that of an accountant. Therefore, we are unable to uphold the contention that merely because the appellant was allowed to practise as a sales tax practitioner, he is entitled to be enrolled as an advocate by virtue of the provisions of clause (aa) of(3) of Section 24 of the Act.12. It may also be pointed out that the construction suggested by the appellant will lead to anomaly and must be avoided. After passing of the Advocates Act, only one class of persons is entitled to practise the profession of law, namely, advocates (Section 29). If the phrase `practice the profession of law is equated to appearance before the sales tax authority, in that event, a chartered accountant or a cost accountant or even a relative or an employee of an assessee will not be entitled to appear before a sales tax authority after the Advocates Act came into force. Not only that, if the contention of the appellant is accepted, after the appointed date the sales tax practitioner who does not have a degree in law will not be entitled to be enrolled as an advocate, will not be able to practise the profession of law and consequently will not be able appear before any Sales tax authority notwithstanding the provisions of Section 71 of the Bombay Sales Tax Act.
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UNION OF INDIA Vs. RAMCHANDRA & ORS | land. In contrast, clause fourthly of Section 23(1) deals with the damage sustained by reason of the acquisition injuriously affecting, (i) the other movable property; (ii) the other immovable property; and/or (iii) the earnings of the person interested. 23. A reading of the abovesaid judgment shows that there was an option with the appropriate Government to acquire the entire land without publication of any fresh notification if the appropriate Government was of the opinion that the claim of compensation on account of severing of the land is unreasonable or excessive. The Union has not exercised such option. Therefore, the compensation has to be determined keeping in view of the fact that the land is continued to be owned by the Company but its effective use stands diminished to large extent. 24. As discussed above, we have found that the land situated on the western side is 139163 square feet (1.29 Hectare), which is not a small area from any angle, therefore, the appropriate Government was justified in not acquiring the said land and for the reason that the claim of compensation of such land is unreasonable or excessive. In fact, the Company had no claim in respect of the land situated on the western plank of the railway line. 25. In respect of the land situated on the eastern side, the first impression is that the land is severed but if the plan produced by the Company is examined, there is land of other land owners as well. Therefore, it is not the entire land which has become unapproachable or land locked. Because of the railway line, may be the Company has to take a detour to approach such land but not that the substantial portion of the land cannot be used for any of the ancillary works of the Company. On account of the fact that the Company can approach the land on the eastern side by taking a detour, the Company will incur an additional cost, therefore, the Company is entitled to such additional cost. 26. The Punjab and Haryana High Court in Tehal Singh & Ors. v. The State of Punjab through the Collector, Land Acquisition, Drainage Circle, Patiala & Ors. 1987 SCC OnLine P&H 269 : 1987 RRR 495 granted additional compensation on account of severance of land in the case of water channels and that statutory benefits are not payable on such compensation on account of severance. It was held as under: 11. Taking all the above factors into account. I consider the following compensation to be appropriate for severance of land to the concerned land-owners:— (1) Where the S.Y.L. Canal intervenes between the land served and the village abadi and it is two acres or less in area, compensation for severance shall be 60% of the market value of the land so acquired. (2) Where the severed land is no the abadi side of the village and S.Y.L. Canal is being constructed beyond it and it is two acres or less in area, compensation for severance shall be 40% of the market value of the land so acquired. (3) Where the severed land is more than two acres in area but is less than 5 acres, and is located on either side of the S.Y.L. Canal, compensation at the rate of 10%- of the market value for its severance shall be payable. 12. The land-owners shall, however, be not entitled to soletium under Section 23(2) and the amount under Section 23(1-A) of the Act on the amount of compensation on account of severance, but they shall be entitled to interest as indicated in the following paragraph. 27. We find that in respect to the land on the eastern side, after leaving land up to the extent of 30 meters from the center of railway track, the Company shall be entitled to Rs.9.5 per square feet, i.e., 50% of the compensation acquired for the railway track. 28. Still further, in terms of the judgment of this Court in State of Punjab v. Amarjit Singh & Anr. (2011) 4 SCC 734, compensation on account of severance is not entitled to the benefit of Section 23(1-A) and Section 23(2) of the Act, as the market value is determined in terms of Section 23(1) firstly, whereas the compensation on account of severance of land is determined under Section 23(1) thirdly. This Court held as under: 11. Sub-section (1-A) of Section 23, inserted by Act 68 of 1984 provides that in addition to the market value of the land, as provided under Section 23(1), the court shall, in every case, award an amount calculated at the rate of 12% per annum on such market value for the period commencing on or from the date of publication of the notification under Section 4(1) in respect of such land to the date of award of the Collector or the date of taking possession of the land, whichever is earlier. The additional amount under Section 23(1-A) and solatium under Section 23(2) are both payable only on the market value determined under Section 23(1) of the Act and not on any other amount. Solatium under Section 23(2) is not payable on the additional amount nor is additional amount under Section 23(1- A) payable on solatium. Solatium and additional amount are also not payable on the damages/expenses that may be awarded under the second to sixth factors under Section 23(1) of the Act. 29. The process of determining compensation by the Reference Court is wholly fallacious. Thus, the appeal of the Company claiming enhancement of the compensation @ Rs.40/- per square feet is untenable. Even the compensation determined by the High Court is questionable but we do not find any reason to interfere in the present appeal under Article 136 of the Constitution. Furthermore, the Company shall be entitled to Rs.9.5 per square feet in respect of land situated on the eastern side after leaving 30 meters of the buffer zone but without any benefits under Section 23(1-A) and Section 23(2) of the Act. | 0[ds]14. A perusal of the Indian Railways Way and Works Manual (para 827) and also the Circular dated 8.9.1988 shows that 30 meters of land on both sides of railway line can be said to be restricted area but it does not mean that the land cannot be utilized for any purpose. The communication dated 19.12.1991 on behalf of the Urban and Rural Department of the State is to the effect that distance of 30 meters of land is to be kept. Firstly, the distance norms are of the Railways and not of the State. Still further, the distance of 30 meters from the railway track can be left unoccupied but not 15 + 30 meters. However, since the land was purchased by the Company for the purpose of setting up of an industrial unit, therefore land to the extent of 30 meters on both sides cannot be put to effective use by the Company. Therefore, we deem it appropriate to grant compensation to the Company for the land on both sides of railway track to the extent of 30 meters from middle of the railway track.15. As per the plan produced by the Company, land measuring 26400 square feet that is 49.3 square meters on both sides of railway track has actually been utilized for the purpose of railway track. Thus, additional 15 meters on both sides of the railway track would be subject to award of compensation @ Rs. 19 per square feet. Thus, land up to extent of 30 meters from the center of railway track is the land acquired for the railway track.16. In respect of amount of compensation, the statement of Pawan Damade (PW-11) is in respect of residential plots sold in the year 1984. The sale price of residential plots @ 45/- per square feet is after carrying the development activity such as laying of roads, electricity, and provision of sewerage disposal, therefore, Rs.45/- could not be in any case the market value of the agricultural land. However, the Reference Court, without any basis, arrived at Rs.50/- per square feet, as the land for commercial purpose would be more expensive. The said process of reasoning led the Reference Court to determine the market value at Rs. 40/- per square feet. The judgment of this Court reported as Lal Chand v. Union of India & Anr. (2009) 15 SCC 769 held that the brochure issued by the Development Authority of fully developed plots cannot form basis for award of compensation for acquisition of undeveloped lands. This Court held as under:12. On careful consideration, we are of the view that such allotment rates of plots adopted by development authorities like DDA cannot form the basis for award of compensation for acquisition of undeveloped lands for several reasons. Firstly, market value has to be determined with reference to large tracts of undeveloped agricultural lands in a rural area, whereas the allotment rates of development authorities are with reference to small plots in a developed layout falling within urban area. Secondly, DDA and other statutory authorities adopt different rates for plots in the same area with reference to the economic capacity of the buyer, making it difficult to ascertain the real market value, whereas market value determination for acquisitions is uniform and does not depend upon the economic status of the land loser. Thirdly, we are concerned with market value of freehold land, whereas the allotment rates in the DDA brochure refer to the initial premium payable on allotment of plots on leasehold basis. We may elaborate on these three factors.13. The percentage of deduction for development to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the layout in which the exemplar plots are situated.17. Thus, the entire process of determination of the market value by the Reference Court is contrary to the established principles of determination of the market value of the acquired land as the sale of developed land for the purpose of residential plots cannot be made basis for acquisition of undeveloped agricultural land. Still further, the acquired land can be said to be 41,771.32 square feet but the compensation has been awarded for the entire land of the Company as against the small area which was acquired for the railway line, though the balance land is owned and is in possession of the Company.18. The market value of Rs.25/- per square feet by the High Court has been arrived at on the basis of statements of some of the witnesses. No sale instance of the acquired land has been produced, not even the sale deed by which the Company has purchased the land almost 3 years prior to the acquisition. Such sale instance would have been the best yardstick to arrive at the market value of the acquired land. The High Court awarded Rs.19/- per square feet as the compensation of the entire land acquired. Though we are unable to agree with the reasoning, but in the absence of any other alternative to determine market value, we do not wish to interfere with the market value assessed by the High Court.19. One cannot understand that how such large chunk of land can be said to be unsuitable for any industry or any evidence suggesting that industry could not be set up in such large piece of land abutting road. The Company has not produced any drawings to say that their factory cannot be put up in the remaining compact land measuring more than 130000 square feet. Therefore, compensation for the entire land owned by the Company is wholly unwarranted, illegal and unduly advantageous to the Company.20. Even in respect of land on the eastern side of the railway line, it is not that such land cannot be utilized for any purpose. There is land of the other land owners on the other side, therefore, the same can be used for different purposes, may not be for industry. Therefore, the compensation of Rs.19/- per square feet awarded for such land is not sustainable on any principle of law. The compensation of land on the western side of the railway track is to be awarded only as the agricultural land.22. Such provision has been examined recently by this Court in a judgment reported as Walchandnagar Industries Limited v. State of Maharashtra & Anr. (2022) 5 SCC 71 wherein, this Court held as under:35. It may be noted that clause thirdly of Section 23(1) relates only to land, as it speaks only about the severance of the acquired land from the unacquired land and the damage sustained as a consequence. In contrast, clause fourthly of Section 23(1) deals with the damage sustained by the person interested, due to the injurious affection, (i) of his other movable property; (ii) of his other immovable property; and (iii) of his earnings. In other words what is injuriously affected at the time of Collectors taking possession of the land, may either be the unacquired portion of the immovable property or other movable property or even the earnings of the person interested.37. Coming to Section 49, it deals with two contingencies. They are,(i) cases where what is sought to be acquired is only a part of any house, manufactory or other building; and(ii) cases where a claim for compensation under the head severance under clause thirdly of Section 23(1) arises.37.1. Insofar as the first contingency is concerned there is a bar under sub-section (1) of Section 49 for the acquisition of a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired.37.2. Insofar as the second contingency is concerned, there is a choice given to the appropriate Government to order the acquisition of the whole of the land, if the appropriate Government is of the opinion that the claim for severance compensation is unreasonable or excessive.38. The distinction between the scope of sub-section (1) and the scope of sub-section (2) of Section 49 was brought out by this Court in Harsook Das Bal Kishan Das v. LAO [Harsook Das Bal Kishan Das v. LAO, (1975) 2 SCC 256] as follows : (SCC pp. 259- 60, para 12)12. The object of Section 49(1) of the Act is to give to the owner the option whether he would like part to be acquired. The Government cannot take the other part under Section 49(1) of the Act unless the owner says so. Section 49(2) of the Act has nothing to do with Section 49(1) of the Act. Section 49(2) of the Act gives the option to the Government only where the claim under the third clause of Section 23(1) of the Act is excessive. Reference to the third clause of Section 23(1) of the Act makes it clear that the claim under the third clause of Section 23(1) is for severance. The Government in such a case of acquisition of the remaining portion of the land under Section 49(2) of the Act saves the public exchequer money which otherwise will be the subject-matter of a claim for severance.40. Section 49(2) also may not have any application for the reason that the appropriate Government did not think fit to seek acquisition of the whole of the land on which the remaining portion of the trolley line existed, on the ground that the claim for severance compensation was unreasonable or excessive. Therefore, it is enough for us to go back to clauses thirdly and fourthly of Section 23(1) without the constraints of sub-sections (1) or (2) of Section 49.41. As we have indicated earlier, clause thirdly relates to the damage sustained by the person interested, by reason of severance of the acquired land from the unacquired land, at the time of Collectors taking possession of the land. In contrast, clause fourthly of Section 23(1) deals with the damage sustained by reason of the acquisition injuriously affecting, (i) the other movable property; (ii) the other immovable property; and/or (iii) the earnings of the person interested.23. A reading of the abovesaid judgment shows that there was an option with the appropriate Government to acquire the entire land without publication of any fresh notification if the appropriate Government was of the opinion that the claim of compensation on account of severing of the land is unreasonable or excessive. The Union has not exercised such option. Therefore, the compensation has to be determined keeping in view of the fact that the land is continued to be owned by the Company but its effective use stands diminished to large extent.24. As discussed above, we have found that the land situated on the western side is 139163 square feet (1.29 Hectare), which is not a small area from any angle, therefore, the appropriate Government was justified in not acquiring the said land and for the reason that the claim of compensation of such land is unreasonable or excessive. In fact, the Company had no claim in respect of the land situated on the western plank of the railway line.25. In respect of the land situated on the eastern side, the first impression is that the land is severed but if the plan produced by the Company is examined, there is land of other land owners as well. Therefore, it is not the entire land which has become unapproachable or land locked. Because of the railway line, may be the Company has to take a detour to approach such land but not that the substantial portion of the land cannot be used for any of the ancillary works of the Company. On account of the fact that the Company can approach the land on the eastern side by taking a detour, the Company will incur an additional cost, therefore, the Company is entitled to such additional cost.26. The Punjab and Haryana High Court in Tehal Singh & Ors. v. The State of Punjab through the Collector, Land Acquisition, Drainage Circle, Patiala & Ors. 1987 SCC OnLine P&H 269 : 1987 RRR 495 granted additional compensation on account of severance of land in the case of water channels and that statutory benefits are not payable on such compensation on account of severance. It was held as under:11. Taking all the above factors into account. I consider the following compensation to be appropriate for severance of land to the concerned land-owners:—(1) Where the S.Y.L. Canal intervenes between the land served and the village abadi and it is two acres or less in area, compensation for severance shall be 60% of the market value of the land so acquired.(2) Where the severed land is no the abadi side of the village and S.Y.L. Canal is being constructed beyond it and it is two acres or less in area, compensation for severance shall be 40% of the market value of the land so acquired.(3) Where the severed land is more than two acres in area but is less than 5 acres, and is located on either side of the S.Y.L. Canal, compensation at the rate of 10%- of the market value for its severance shall be payable.12. The land-owners shall, however, be not entitled to soletium under Section 23(2) and the amount under Section 23(1-A) of the Act on the amount of compensation on account of severance, but they shall be entitled to interest as indicated in the following paragraph.27. We find that in respect to the land on the eastern side, after leaving land up to the extent of 30 meters from the center of railway track, the Company shall be entitled to Rs.9.5 per square feet, i.e., 50% of the compensation acquired for the railway track.28. Still further, in terms of the judgment of this Court in State of Punjab v. Amarjit Singh & Anr. (2011) 4 SCC 734, compensation on account of severance is not entitled to the benefit of Section 23(1-A) and Section 23(2) of the Act, as the market value is determined in terms of Section 23(1) firstly, whereas the compensation on account of severance of land is determined under Section 23(1) thirdly. This Court held as under:11. Sub-section (1-A) of Section 23, inserted by Act 68 of 1984 provides that in addition to the market value of the land, as provided under Section 23(1), the court shall, in every case, award an amount calculated at the rate of 12% per annum on such market value for the period commencing on or from the date of publication of the notification under Section 4(1) in respect of such land to the date of award of the Collector or the date of taking possession of the land, whichever is earlier. The additional amount under Section 23(1-A) and solatium under Section 23(2) are both payable only on the market value determined under Section 23(1) of the Act and not on any other amount. Solatium under Section 23(2) is not payable on the additional amount nor is additional amount under Section 23(1- A) payable on solatium. Solatium and additional amount are also not payable on the damages/expenses that may be awarded under the second to sixth factors under Section 23(1) of the Act.29. The process of determining compensation by the Reference Court is wholly fallacious. Thus, the appeal of the Company claiming enhancement of the compensation @ Rs.40/- per square feet is untenable. Even the compensation determined by the High Court is questionable but we do not find any reason to interfere in the present appeal under Article 136 of the Constitution. Furthermore, the Company shall be entitled to Rs.9.5 per square feet in respect of land situated on the eastern side after leaving 30 meters of the buffer zone but without any benefits under Section 23(1-A) and Section 23(2) of the Act. | 0 | 5,839 | 3,034 | ### 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:
land. In contrast, clause fourthly of Section 23(1) deals with the damage sustained by reason of the acquisition injuriously affecting, (i) the other movable property; (ii) the other immovable property; and/or (iii) the earnings of the person interested. 23. A reading of the abovesaid judgment shows that there was an option with the appropriate Government to acquire the entire land without publication of any fresh notification if the appropriate Government was of the opinion that the claim of compensation on account of severing of the land is unreasonable or excessive. The Union has not exercised such option. Therefore, the compensation has to be determined keeping in view of the fact that the land is continued to be owned by the Company but its effective use stands diminished to large extent. 24. As discussed above, we have found that the land situated on the western side is 139163 square feet (1.29 Hectare), which is not a small area from any angle, therefore, the appropriate Government was justified in not acquiring the said land and for the reason that the claim of compensation of such land is unreasonable or excessive. In fact, the Company had no claim in respect of the land situated on the western plank of the railway line. 25. In respect of the land situated on the eastern side, the first impression is that the land is severed but if the plan produced by the Company is examined, there is land of other land owners as well. Therefore, it is not the entire land which has become unapproachable or land locked. Because of the railway line, may be the Company has to take a detour to approach such land but not that the substantial portion of the land cannot be used for any of the ancillary works of the Company. On account of the fact that the Company can approach the land on the eastern side by taking a detour, the Company will incur an additional cost, therefore, the Company is entitled to such additional cost. 26. The Punjab and Haryana High Court in Tehal Singh & Ors. v. The State of Punjab through the Collector, Land Acquisition, Drainage Circle, Patiala & Ors. 1987 SCC OnLine P&H 269 : 1987 RRR 495 granted additional compensation on account of severance of land in the case of water channels and that statutory benefits are not payable on such compensation on account of severance. It was held as under: 11. Taking all the above factors into account. I consider the following compensation to be appropriate for severance of land to the concerned land-owners:— (1) Where the S.Y.L. Canal intervenes between the land served and the village abadi and it is two acres or less in area, compensation for severance shall be 60% of the market value of the land so acquired. (2) Where the severed land is no the abadi side of the village and S.Y.L. Canal is being constructed beyond it and it is two acres or less in area, compensation for severance shall be 40% of the market value of the land so acquired. (3) Where the severed land is more than two acres in area but is less than 5 acres, and is located on either side of the S.Y.L. Canal, compensation at the rate of 10%- of the market value for its severance shall be payable. 12. The land-owners shall, however, be not entitled to soletium under Section 23(2) and the amount under Section 23(1-A) of the Act on the amount of compensation on account of severance, but they shall be entitled to interest as indicated in the following paragraph. 27. We find that in respect to the land on the eastern side, after leaving land up to the extent of 30 meters from the center of railway track, the Company shall be entitled to Rs.9.5 per square feet, i.e., 50% of the compensation acquired for the railway track. 28. Still further, in terms of the judgment of this Court in State of Punjab v. Amarjit Singh & Anr. (2011) 4 SCC 734, compensation on account of severance is not entitled to the benefit of Section 23(1-A) and Section 23(2) of the Act, as the market value is determined in terms of Section 23(1) firstly, whereas the compensation on account of severance of land is determined under Section 23(1) thirdly. This Court held as under: 11. Sub-section (1-A) of Section 23, inserted by Act 68 of 1984 provides that in addition to the market value of the land, as provided under Section 23(1), the court shall, in every case, award an amount calculated at the rate of 12% per annum on such market value for the period commencing on or from the date of publication of the notification under Section 4(1) in respect of such land to the date of award of the Collector or the date of taking possession of the land, whichever is earlier. The additional amount under Section 23(1-A) and solatium under Section 23(2) are both payable only on the market value determined under Section 23(1) of the Act and not on any other amount. Solatium under Section 23(2) is not payable on the additional amount nor is additional amount under Section 23(1- A) payable on solatium. Solatium and additional amount are also not payable on the damages/expenses that may be awarded under the second to sixth factors under Section 23(1) of the Act. 29. The process of determining compensation by the Reference Court is wholly fallacious. Thus, the appeal of the Company claiming enhancement of the compensation @ Rs.40/- per square feet is untenable. Even the compensation determined by the High Court is questionable but we do not find any reason to interfere in the present appeal under Article 136 of the Constitution. Furthermore, the Company shall be entitled to Rs.9.5 per square feet in respect of land situated on the eastern side after leaving 30 meters of the buffer zone but without any benefits under Section 23(1-A) and Section 23(2) of the Act.
### Response:
0
### Explanation:
the unacquired land, at the time of Collectors taking possession of the land. In contrast, clause fourthly of Section 23(1) deals with the damage sustained by reason of the acquisition injuriously affecting, (i) the other movable property; (ii) the other immovable property; and/or (iii) the earnings of the person interested.23. A reading of the abovesaid judgment shows that there was an option with the appropriate Government to acquire the entire land without publication of any fresh notification if the appropriate Government was of the opinion that the claim of compensation on account of severing of the land is unreasonable or excessive. The Union has not exercised such option. Therefore, the compensation has to be determined keeping in view of the fact that the land is continued to be owned by the Company but its effective use stands diminished to large extent.24. As discussed above, we have found that the land situated on the western side is 139163 square feet (1.29 Hectare), which is not a small area from any angle, therefore, the appropriate Government was justified in not acquiring the said land and for the reason that the claim of compensation of such land is unreasonable or excessive. In fact, the Company had no claim in respect of the land situated on the western plank of the railway line.25. In respect of the land situated on the eastern side, the first impression is that the land is severed but if the plan produced by the Company is examined, there is land of other land owners as well. Therefore, it is not the entire land which has become unapproachable or land locked. Because of the railway line, may be the Company has to take a detour to approach such land but not that the substantial portion of the land cannot be used for any of the ancillary works of the Company. On account of the fact that the Company can approach the land on the eastern side by taking a detour, the Company will incur an additional cost, therefore, the Company is entitled to such additional cost.26. The Punjab and Haryana High Court in Tehal Singh & Ors. v. The State of Punjab through the Collector, Land Acquisition, Drainage Circle, Patiala & Ors. 1987 SCC OnLine P&H 269 : 1987 RRR 495 granted additional compensation on account of severance of land in the case of water channels and that statutory benefits are not payable on such compensation on account of severance. It was held as under:11. Taking all the above factors into account. I consider the following compensation to be appropriate for severance of land to the concerned land-owners:—(1) Where the S.Y.L. Canal intervenes between the land served and the village abadi and it is two acres or less in area, compensation for severance shall be 60% of the market value of the land so acquired.(2) Where the severed land is no the abadi side of the village and S.Y.L. Canal is being constructed beyond it and it is two acres or less in area, compensation for severance shall be 40% of the market value of the land so acquired.(3) Where the severed land is more than two acres in area but is less than 5 acres, and is located on either side of the S.Y.L. Canal, compensation at the rate of 10%- of the market value for its severance shall be payable.12. The land-owners shall, however, be not entitled to soletium under Section 23(2) and the amount under Section 23(1-A) of the Act on the amount of compensation on account of severance, but they shall be entitled to interest as indicated in the following paragraph.27. We find that in respect to the land on the eastern side, after leaving land up to the extent of 30 meters from the center of railway track, the Company shall be entitled to Rs.9.5 per square feet, i.e., 50% of the compensation acquired for the railway track.28. Still further, in terms of the judgment of this Court in State of Punjab v. Amarjit Singh & Anr. (2011) 4 SCC 734, compensation on account of severance is not entitled to the benefit of Section 23(1-A) and Section 23(2) of the Act, as the market value is determined in terms of Section 23(1) firstly, whereas the compensation on account of severance of land is determined under Section 23(1) thirdly. This Court held as under:11. Sub-section (1-A) of Section 23, inserted by Act 68 of 1984 provides that in addition to the market value of the land, as provided under Section 23(1), the court shall, in every case, award an amount calculated at the rate of 12% per annum on such market value for the period commencing on or from the date of publication of the notification under Section 4(1) in respect of such land to the date of award of the Collector or the date of taking possession of the land, whichever is earlier. The additional amount under Section 23(1-A) and solatium under Section 23(2) are both payable only on the market value determined under Section 23(1) of the Act and not on any other amount. Solatium under Section 23(2) is not payable on the additional amount nor is additional amount under Section 23(1- A) payable on solatium. Solatium and additional amount are also not payable on the damages/expenses that may be awarded under the second to sixth factors under Section 23(1) of the Act.29. The process of determining compensation by the Reference Court is wholly fallacious. Thus, the appeal of the Company claiming enhancement of the compensation @ Rs.40/- per square feet is untenable. Even the compensation determined by the High Court is questionable but we do not find any reason to interfere in the present appeal under Article 136 of the Constitution. Furthermore, the Company shall be entitled to Rs.9.5 per square feet in respect of land situated on the eastern side after leaving 30 meters of the buffer zone but without any benefits under Section 23(1-A) and Section 23(2) of the Act.
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Subsets and Splits